<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 6, 1997
REGISTRATION NO. 333-
REGISTRATION NO. 333- -01
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
<TABLE>
<S> <C>
SIMMONS FIRST NATIONAL CORPORATION SIMMONS FIRST CAPITAL TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) (EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER)
ARKANSAS DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
71-0407808 APPLIED FOR
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
501 MAIN STREET, PINE BLUFF, ARKANSAS 71601 (870) 541-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S AND CO-REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
----------------------------
J. THOMAS MAY
CHAIRMAN OF THE BOARD, PRESIDENT AND 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:
<TABLE>
<S> <C> <C>
PATRICK A. BURROW, ESQ. THOMAS C. ERB, ESQ. FREDERICK W. SCHERRER, ESQ.
RAMSAY, BRIDGFORTH, HARRELSON & STARLING LEWIS, RICE & FINGERSH, L.C. BRYAN CAVE LLP
501 MAIN STREET 500 NORTH BROADWAY, SUITE 2000 211 NORTH BROADWAY, SUITE 3600
PINE BLUFF, ARKANSAS 71601 ST. LOUIS, MISSOURI 63102 ST. LOUIS, MISSOURI 63102-2750
(870) 535-9000 (314) 444-7600 (314) 259-2000
</TABLE>
----------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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, check the following box. / /
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<TABLE>
CALCULATION OF REGISTRATION FEE
============================================================================================================================
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Preferred Securities of Simmons
First Capital Trust<F1>.......... 690,000<F1> $25.00 $17,250,000.00<F1> $5,228.00<F2>
- ----------------------------------------------------------------------------------------------------------------------------
Subordinated Debentures of Simmons
First National Corporation<F3>... <F3>
- ----------------------------------------------------------------------------------------------------------------------------
Guarantee of Simmons First National
Corporation, with respect to
Preferred Securities<F4>......... <F4>
============================================================================================================================
<FN>
<F1>Includes 90,000 Preferred Securities which may be sold by Simmons First
Capital Trust to cover over-allotments.
<F2>The registration fee is calculated in accordance with Rule 457(n) under the
Securities Act of 1933, as amended.
<F3>The Subordinated Debentures will be purchased by Simmons First Capital
Trust with the proceeds of the sale of the Preferred Securities. Such
securities may later be distributed for no additional consideration to the
holders of the Preferred Securities of Simmons First Capital Trust upon its
dissolution and the distribution of its assets.
<F4>This Registration Statement is deemed to cover the Subordinated Debentures
of Simmons First National Corporation, the rights of holders of
Subordinated Debentures of Simmons First National Corporation under the
Indenture, and the rights of holders of the Preferred Securities under the
Trust Agreement, the Guarantee and the Expense Agreement entered into by
Simmons First National Corporation. No separate consideration will be
received for the Guarantee.
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
===============================================================================
<PAGE> 2
SUBJECT TO COMPLETION, DATED JUNE 6, 1997
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE *
* SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR *
* MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT *
* BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR *
* THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE *
* SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE *
* UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS *
* OF ANY SUCH STATE. *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
PROSPECTUS
600,000 PREFERRED SECURITIES
SIMMONS FIRST CAPITAL TRUST
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED, AS DESCRIBED HEREIN, BY
SIMMONS FIRST NATIONAL CORPORATION
------------------------
$15,000,000 % SUBORDINATED DEBENTURES OF
SIMMONS FIRST NATIONAL CORPORATION
------------------------
The % Cumulative Trust Preferred Securities (the "Preferred
Securities") offered hereby represent preferred undivided beneficial interests
in the assets of Simmons First Capital Trust, a statutory business trust
created under the laws of the State of Delaware ("Simmons Trust"). Simmons
First National Corporation, an Arkansas corporation (the "Company"), will own
all the common securities (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities") representing undivided
beneficial interests in the assets of Simmons Trust.
(continued on next page)
Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market under the symbol
"SFNCP."
------------------------
SEE "RISK FACTORS" COMMENCING ON PAGE 11 FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
------------------------
THE SECURITIES OFFERED BY THIS PROSPECTUS ARE NOT SAVINGS OR DEPOSIT ACCOUNTS,
ARE NOT OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NON-BANKING
AFFILIATE OF THE COMPANY (EXCEPT TO THE EXTENT THAT PREFERRED SECURITIES
ARE GUARANTEED BY THE COMPANY AS DESCRIBED HEREIN), ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY AND INVOLVE INVESTMENT RISKS, INCLUDING
POSSIBLE LOSS OF PRINCIPAL.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
======================================================================================================
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC COMMISSION<F1> SIMMONS TRUST<F2>
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Preferred Security.................. $25.00 <F3> $25.00
- ------------------------------------------------------------------------------------------------------
Total<F3>............................... $15,000,000 <F3> $15,000,000
======================================================================================================
<FN>
<F1>Simmons Trust and the Company have each agreed to indemnify the Underwriter
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended. See "Underwriting."
<F2>In view of the fact that the proceeds of the sale of the Preferred
Securities will be invested in the Subordinated Debentures, the Company has
agreed to pay the Underwriter as compensation for its arranging the
investment therein of such proceeds, $ per Preferred Security, or
$ in the aggregate, ($ if the over-allotment option is exercised
in full). See "Underwriting." The Company has also agreed to pay the
expenses of the offering estimated to be $250,000.
<F3>Simmons Trust has granted the Underwriter an option exercisable within 30
days from the date of this Prospectus to purchase up to 90,000 additional
Preferred Securities on the same terms and conditions set forth above to
cover over-allotments, if any. If all such additional Preferred Securities
are purchased, the total Price to Public and Proceeds to Simmons Trust will
be $17,250,000.
</TABLE>
------------------------
The Preferred Securities are offered by the Underwriter subject to receipt
and acceptance by it, prior sale and the Underwriter's right to reject any
order in whole or in part and to withdraw, cancel or modify the offer without
notice. It is expected that delivery of the Preferred Securities will be made
on or about , 1997.
STIFEL, NICOLAUS & COMPANY
INCORPORATED
, 1997
<PAGE> 3
(continued from previous page)
State Street Bank and Trust Company is the Property Trustee (as defined
herein) of Simmons Trust. Simmons Trust exists for the purpose of issuing the
Preferred Securities and investing the proceeds thereof in an equivalent amount
of % Subordinated Debentures (the "Subordinated Debentures") of the
Company. The Subordinated Debentures will mature on June 30, 2027, which date
may be (i) shortened to a date not earlier than June 30, 2002, or (ii) extended
to a date not later than June 30, 2036, in each case if certain conditions are
met (including, in the case of shortening the Stated Maturity (as defined
herein), the Company having received prior approval of the Board of Governors
of the Federal Reserve System (the "Federal Reserve") to do so if then
required under applicable capital guidelines or policies of the Federal
Reserve). The Preferred Securities will have a preference under certain
circumstances with respect to cash distributions and amounts payable on
liquidation, redemption or otherwise over the Common Securities. See
"Description of the Preferred Securities--Subordination of Common
Securities."
Holders of Preferred Securities are entitled to receive preferential
cumulative cash distributions (the "Distributions") from Simmons Trust, at
the annual rate of % of the liquidation amount of $25 per Preferred
Security (the "Liquidation Amount"), accruing from the date of original
issuance and payable quarterly in arrears on the last day of March, June,
September and December of each year, commencing September 30, 1997. The Company
has the right, so long as no Debenture Event of Default (as defined herein) has
occurred and is continuing, to defer payment of interest on the Subordinated
Debentures at any time or from time to time for a period not to exceed 20
consecutive quarters with respect to each deferral period (each, an "Extended
Interest Payment Period"); provided that no Extended Interest Payment Period
may extend beyond the Stated Maturity of the Subordinated Debentures. Upon the
termination of any such Extended Interest Payment Period and the payment of all
amounts then due, the Company may elect to begin a new Extended Interest
Payment Period subject to the requirements set forth herein. If interest
payments on the Subordinated Debentures are so deferred, Distributions on the
Preferred Securities will also be deferred, and the Company will not be
permitted, subject to certain exceptions described herein, to declare or pay
any cash distributions with respect to its capital stock or debt securities
that rank pari passu with or junior to the Subordinated Debentures. DURING AN
EXTENDED INTEREST PAYMENT PERIOD, INTEREST ON THE SUBORDINATED DEBENTURES WILL
CONTINUE TO ACCRUE (AND THE AMOUNT OF DISTRIBUTIONS TO WHICH HOLDERS OF THE
PREFERRED SECURITIES ARE ENTITLED WILL ACCUMULATE) AT THE RATE OF % PER
ANNUM, COMPOUNDED QUARTERLY, AND HOLDERS OF THE PREFERRED SECURITIES WILL BE
REQUIRED TO INCLUDE INTEREST INCOME IN THEIR GROSS INCOME FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES IN ADVANCE OF RECEIPT OF THE CASH DISTRIBUTIONS
WITH RESPECT TO SUCH DEFERRED INTEREST PAYMENTS. A HOLDER OF PREFERRED
SECURITIES WHO DISPOSES OF ITS PREFERRED SECURITIES BETWEEN RECORD DATES FOR
PAYMENTS OF DISTRIBUTIONS (AND CONSEQUENTLY DOES NOT RECEIVE A DISTRIBUTION
FROM SIMMONS TRUST FOR THE PERIOD PRIOR TO SUCH DISPOSITION) WILL NEVERTHELESS
BE REQUIRED TO INCLUDE ACCRUED BUT UNPAID INTEREST OR ORIGINAL ISSUE DISCOUNT
("OID"), IF ANY, ON THE SUBORDINATED DEBENTURES THROUGH THE DATE OF
DISPOSITION IN INCOME AS ORDINARY INCOME AND TO ADD THE AMOUNT OF ANY ACCRUED
OID TO ITS ADJUSTED TAX BASIS IN ITS PRO RATA SHARE OF THE UNDERLYING
SUBORDINATED DEBENTURES DEEMED DISPOSED OF. See "Description of the
Subordinated Debentures--Option to Extend Interest Payment Period," "Certain
Federal Income Tax Consequences--Potential Extension of Interest Payment Period
and Original Issue Discount" and "--Disposition of Preferred Securities."
The Company and Simmons Trust believe that, taken together, the obligations
of the Company under the Guarantee, the Trust Agreement, the Subordinated
Debentures, the Indenture and the Expense Agreement (each as defined herein)
provide, in the aggregate, a full, irrevocable and unconditional guarantee, on
a subordinated basis, of all of the obligations of Simmons Trust under the
Preferred Securities. See "Relationship Among the Preferred Securities, the
Subordinated Debentures and the Guarantee--Full and Unconditional Guarantee."
The Guarantee of the Company guarantees the payment of Distributions and
payments on liquidation or redemption of the Preferred Securities, but only in
each case to the extent of funds held by Simmons Trust, as described herein.
See "Description of the Guarantee--General." If the Company does not make
interest payments on the Subordinated Debentures held by Simmons Trust, Simmons
Trust will have insufficient funds to pay Distributions on the Preferred
Securities. The Guarantee does not cover payments of Distributions when Simmons
Trust does not have sufficient funds to pay such Distributions. In such event,
a holder of Preferred Securities may institute a legal proceeding directly
against the Company pursuant to the terms of the Indenture to enforce payments
of amounts equal to such Distributions to such holder. See "Description of the
Subordinated Debentures--Enforcement of Certain Rights by Holders of the
Preferred Securities." The obligations of the Company under the Guarantee and
the Preferred Securities are subordinate and junior in right of payment to all
Senior Debt, Subordinated Debt and Additional Senior Obligations (each as
defined herein) of the Company. The Subordinated Debentures are unsecured
obligations of the Company and are subordinated to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company.
(continued on next page)
<PAGE> 4
(continued from previous page)
The Preferred Securities are subject to mandatory redemption, in whole or
in part, upon repayment of the Subordinated Debentures at maturity or their
earlier redemption. Subject to Federal Reserve approval, if then required under
applicable capital guidelines or policies of the Federal Reserve, the
Subordinated Debentures are redeemable prior to maturity at the option of the
Company (i) on or after June 30, 2002, in whole at any time or in part from
time to time, or (ii) at any time, in whole (but not in part), within 180 days
following the occurrence of a Tax Event, a Capital Treatment Event or an
Investment Company Event (each as defined herein), in each case at a redemption
price equal to the accrued and unpaid interest on the Subordinated Debentures
so redeemed to the date fixed for redemption, plus 100% of the principal amount
thereof. See "Description of the Preferred Securities--Redemption."
The Company has the right at any time to dissolve, wind-up or terminate
Simmons Trust subject to the Company having received prior approval of the
Federal Reserve to do so if then required under applicable capital guidelines
or policies of the Federal Reserve. In the event of the voluntary or
involuntary dissolution, winding up or termination of Simmons Trust, after
satisfaction of liabilities to creditors of Simmons Trust as required by
applicable law, the holders of Preferred Securities will be entitled to receive
a Liquidation Amount of $25 per Preferred Security, plus accumulated and unpaid
Distributions thereon to the date of payment, which may be in the form of a
Subordinated Debenture having an aggregate principal amount equal to the
Liquidation Amount of such Preferred Securities (and carrying with it
accumulated interest in an amount equal to the accumulated and unpaid
Distributions then due on such Preferred Securities), subject to certain
exceptions. See "Description of the Preferred Securities--Redemption" and
"--Liquidation Distribution Upon Termination."
--------------------------------
The Company will provide Quarterly Reports containing unaudited financial
statements to the holders of Preferred Securities if such reports are furnished
to the holders of the Company's common stock, and Annual Reports containing
financial statements audited by the Company's independent auditors. The Company
will also furnish Annual Reports on Form 10-K and Quarterly Reports on Form
10-Q free of charge to holders of Preferred Securities who so request in
writing addressed to the Secretary of the Company.
--------------------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE PREFERRED
SECURITIES. SUCH TRANSACTIONS MAY INCLUDE OVER ALLOTMENT, STABILIZING
TRANSACTIONS, THE PURCHASE OF PREFERRED SECURITIES TO COVER SHORT POSITIONS AND
THE IMPOSITION OF PENALTY BIDS. FOR A DESCRIPTION OF SUCH ACTIVITIES, SEE
"UNDERWRITING."
<PAGE> 5
[INSERT MAP]
<PAGE> 6
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere (or incorporated by reference) in this
Prospectus. Unless otherwise indicated, the information in this Prospectus
assumes that the Underwriter's over-allotment option will not be exercised.
Prospective investors should carefully consider the information set forth under
the heading "Risk Factors."
THE COMPANY
GENERAL
Simmons First National Corporation is an Arkansas corporation and
registered bank holding company headquartered in Pine Bluff, Arkansas. At March
31, 1997, the Company had assets of $891.3 million, deposits of $744.4 million
and total shareholders' equity of $104.0 million. The Company, through its
principal subsidiary Simmons First National Bank (the "Lead Bank"), delivers
a comprehensive range of consumer and commercial banking services to individual
and business customers through 29 banking locations within the State of
Arkansas. The Lead Bank also competes for business nationwide through its
credit card operations.
The Company's other subsidiaries include the following four community banks
(together with the Lead Bank, the "Banks"): Simmons First Bank of Jonesboro,
located in Jonesboro, Arkansas; Simmons First Bank of South Arkansas, located
in Lake Village, Arkansas; Simmons First Bank of Dumas, located in Dumas,
Arkansas; and Simmons First Bank of Northwest Arkansas, located in Rogers,
Arkansas.
The principal executive office of the Company is located at 501 Main
Street, Pine Bluff, Arkansas 71601, and its telephone number is (870) 541-1000.
FINANCIAL SUMMARY
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31,
(UNAUDITED) YEAR ENDED DECEMBER 31,
--------------------- ------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
-------- ------- -------- ------- ------- ------- -------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Net income.................... $ 2,588 $ 2,242 $ 10,301 $10,019 $ 9,860 $ 9,396 $ 7,477
Net income per share.......... $ 0.45 $ 0.39 $ 1.81 $ 1.77 $ 1.79 $ 1.85 $ 1.73
Stockholders' equity.......... $104,010 $97,540 $102,825 $96,797 $83,700 $75,335 $51,219
Return on average equity...... 10.07% 9.22% 10.31% 10.95% 12.28% 14.31% 15.43%
Return on average assets...... 1.19 1.08 1.22 1.30 1.39 1.33 1.09
</TABLE>
PRO FORMA FINANCIAL SUMMARY
The following unaudited information summarizes financial information of the
Company and First Bank of Arkansas--Russellville ("FBAR") and First Bank of
Arkansas--Searcy ("FBAS") as if the Pending Acquisitions (as defined herein)
had been effective during the periods presented.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31, 1997 YEAR ENDED DECEMBER 31, 1996
-------------------- ----------------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
Proforma net income............................... $2,538 $8,740
Proforma net income per share..................... 0.44 1.53
Proforma return on average equity (annualized).... 9.88% --
Proforma return on average assets (annualized).... 0.85 --
</TABLE>
BUSINESS STRATEGY AND OBJECTIVES
The Company's growth strategy is to expand within the State of Arkansas,
its primary market area, by capitalizing on its presence in the Northern half
of Arkansas, which contains several of the fastest growing areas in the state,
through increased emphasis on commercial and agricultural lending in those
areas, and by expanding its
2
<PAGE> 7
banking operations through acquisitions which the Company believes will allow
it to better utilize acquired assets through investment in higher yielding
credit card loans and other retail banking services.
The Company has identified several business objectives and strategies which
focus on growth and customer service. The principal objectives of the Company
have been to (i) increase market share, particularly in the Northern half of
Arkansas, (ii) provide exceptional customer service, (iii) enhance credit
quality, and (iv) maintain cost controls. The Company has employed the
following strategies in furtherance of its business objectives:
* INCREASE MARKET SHARE IN EACH MARKET SERVED. The Company realigned
certain banking operations during 1996 in order to provide the Northwest
Arkansas cities of Rogers, Springdale and Bella Vista with community
banking rather than banking services through branches of the Lead Bank. The
Company, in this regard, transferred an existing Bank charter to Rogers,
Arkansas from Dermott, Arkansas and renamed the Bank "Simmons First Bank
of Northwest Arkansas." Management believes that Northwest Arkansas is one
of the fastest growing areas within the Company's market. The Company has
invested $2.2 million in the construction of the Rogers banking facility
and $1.1 million in remodeling its Springdale facility to provide increased
capacity for banking services to these communities. In the Pine Bluff
market, management has aggressively sought opportunities arising from the
concerns and uncertainties due to the current bank consolidation
phenomenon. Management believes that the concerns and uncertainties of the
current consolidation climate have allowed the Lead Bank, as a community
bank, to increase its market share in deposits and lending through targeted
development of customers of those banks affected by consolidation
transactions. The Company's goal is to deliver personal customer services
through each of its banking facilities and to be able to service an
increasing percentage of each customer's financial needs through effective
management of the customer relationship.
* EXPAND FEE-BASED INCOME. The Company currently provides a number of
services to its customers which generate fee-based income, the major
services being credit card, trust, and mortgage banking. Management
believes that additional sources of fee income are available from existing
customer relationships and that the existing products and services which
generate fee-based income can be utilized to effectively develop new or
additional relationships with customers. Management also believes that
satisfied customers are loyal and, therefore, are more likely to utilize
its other products and services when a substantial portion of a customer's
financial services are provided by the Company.
* EXPAND THE NICHE BUSINESS BY TAKING ADVANTAGE OF OPPORTUNITIES. The
Company is active in several specialized market niches, credit cards,
mortgage banking and student loans. Management believes that the Company
has developed expertise and qualified staff to effectively meet the needs
of customers in these specialized areas. The Lead Bank over the last
several years has offered the national market a credit card with one of the
lowest interest rates in the United States, yet has maintained outstanding
asset quality within its credit card loan portfolio. The credit card
portfolio experienced net charge-offs of 1.40% during 1996 and 1.15% during
1995. The mortgage banking group originates and services residential
mortgage loans. The market for mortgage loan origination is primarily
Arkansas. After origination, the majority of the residential mortgage loans
are sold into the secondary market. The Company services a residential
mortgage loan portfolio with an outstanding loan balance of approximately
$1.5 billion as of December 31, 1996. The portfolio primarily consists of
pooled mortgages supporting mortgage-backed securities issued pursuant to
the programs of certain United States government agencies and
quasi-governmental bodies (e.g., Federal National Mortgage Association,
Government National Mortgage Association and Federal Home Loan Mortgage
Corporation). The Company has identified those areas in which the
residential housing market is very active and is allocating its resources
to capitalize upon opportunities in those areas. The Lead Bank is also one
of the largest originators of guaranteed student loans in the State of
Arkansas.
* ACTIVELY MANAGING CREDIT QUALITY. The Company actively manages its
loan portfolio with loan officers maintaining responsibility for the
quality of the credit they originate and manage. The management process for
commercial and commercial real estate credit is based upon a collective
review and approval process, including a review, evaluation and grading
process undertaken by the Company's internal independent loan review
department. Senior management is actively involved in the oversight and
implementation of this process and incentive compensation is impacted by
the credit experience of specified loan portfolios, each Bank's aggregate
loan portfolios and the Company's aggregate loan portfolio.
3
<PAGE> 8
BANKING AND FINANCIAL SERVICES
The organization provides financial services through the following product
groups:
RETAIL BANKING. Each of the Company's subsidiary Banks serves individuals
and small businesses with direct lending, indirect consumer lending and a wide
range of deposit products. Further, the Lead Bank offers to its customers and
the customers of the other Banks credit cards, personal trust and brokerage
services. In addition to customer service through automated teller machines and
traditional branch locations, the Lead Bank is utilizing alternative systems
for business development and customer service. Credit card applications and
information concerning services and products of the Lead Bank are available on
the Internet. The Company strives to improve the match between a customer's
individual needs and the products and services offered by the Company's
subsidiary Banks.
CREDIT CARD SERVICES. The Company considers the Lead Bank to be a national
leader in providing credit card services. The Lead Bank has offered credit card
services since 1967, and at December 31, 1996, the Lead Bank had approximately
158,000 active Visa and MasterCard accounts in all 50 states, the District of
Columbia and certain United States territories, with outstanding balances
totaling $166.3 million, or approximately 32.6% of total consolidated loans.
Approximately 63% of the aggregate outstanding credit card loans in the
portfolio are to cardholders residing in States other than Arkansas. The Lead
Bank has consistently employed stringent, subjectively-based credit standards
in making credit decisions concerning card applicants, rather than using a
credit scoring, or statistical profile system typically employed by other
credit card issuers. Management believes that this individualized approach to
decision-making, emphasizing credit histories and individual borrower profiles,
is significantly more restrictive than industry standards, and has been a
significant positive factor in producing a high quality credit card loan
portfolio. At December 31, 1996, the Lead Bank's credit card delinquency ratio
was 0.66%.
COMMERCIAL BANKING. The Company, through its Bank subsidiaries, provides a
wide range of commercial banking services to business customers, including
loans, letters of credit, corporate cash management, corporate trust services
and employee benefit trust services. The Company's primary focus for commercial
banking is privately-held or closely-controlled firms doing business within the
community markets served by its subsidiary Banks.
STUDENT LENDING. The Lead Bank is one of the largest originators of
guaranteed student loans in the State of Arkansas. The Lead Bank's primary
focus is on guaranteed lending to students attending four year colleges and
universities. The student loan department of the Bank's retail banking group
provides specialized services to the customers of all of the Company's Banks
and works with substantially all of the four year colleges and universities in
Arkansas in providing student loans.
MORTGAGE BANKING. The Company, through the Lead Bank and the Company's
subsidiary Simmons First Mortgage Company ("SFMC"), provides various mortgage
banking services. SFMC maintains offices for the origination of residential
mortgage loans in several of the Banks as well as its own office location in
Little Rock, Arkansas. The Lead Bank is engaged in servicing a mortgage loan
portfolio with an aggregate outstanding balance of approximately $1.5 billion,
as of December 31, 1996, and is an active participant in the secondary mortgage
market through the origination and sale of mortgages.
PENDING ACQUISITIONS
On March 21, 1997, the Company announced the execution of separate
definitive agreements with First Commercial Corporation ("First Commercial")
to purchase all of the outstanding stock of First Bank of
Arkansas--Russellville ("FBAR") and First Bank of Arkansas--Searcy ("FBAS")
for the aggregate purchase price of $53 million (the "Pending Acquisitions").
The Pending Acquisitions will be accounted for as purchase transactions. In
addition to customary regulatory approvals applicable to the Pending
Acquisitions, the acquisition of FBAS is also conditioned upon the
consummation by First Commercial of its pending acquisition of First Central
Corporation, which is expected to be consummated on or about June 30, 1997,
although no assurance can be given in such regard. The Pending Acquisitions
are expected to be completed during the third quarter of 1997. Regulatory
applications for the Pending Acquisitions have been filed and are presently
pending. There can be no assurance that all necessary regulatory approvals
will be obtained or that all conditions to the Pending Acquisitions will be
satisfied such that the
4
<PAGE> 9
Pending Acquisitions will be consummated. There can also be no assurance that
the Company will be able to successfully integrate FBAR and FBAS into its
operations.
The audited combined balance sheet of FBAR and FBAS as of December 31, 1996
and the audited combined statements of income, changes in stockholder's
equity, and cash flows for the year ended December 31, 1996, and the unaudited
combined interim balance sheet of FBAR and FBAS as of March 31, 1997, and the
unaudited combined statements of income, changes in stockholder's equity, and
cash flows for the three-month periods ended March 31, 1997 and 1996 are
included in the Company's Current Report on Form 8-K, filed with the
Securities and Exchange Commission on June 6, 1997, and are incorporated
herein by reference. See "Incorporation of Certain Documents by Reference."
FIRST BANK OF ARKANSAS--RUSSELLVILLE. The main office of FBAR is located in
Russellville, Arkansas, a city of approximately 21,000 people. Russellville is
located in central Arkansas, approximately 78 miles northwest of Little Rock on
Interstate 40. The city is the home of Arkansas Tech University, a four year
state supported university with an enrollment of approximately 5,000 students.
Russellville and surrounding communities have experienced and are continuing to
experience moderate growth within the business and residential housing markets.
FBAR, an Arkansas chartered bank, currently controls the largest market
share in the Russellville market. Two branches of FBAR and the deposits and
loans associated therewith are, however, being retained by First Commercial and
will be transferred to a competing bank prior to the consummation of the
Pending Acquisitions. Upon consummation of the purchase transaction, FBAR will
maintain its main office and two full service branches in Russellville,
Arkansas and full service branches in Clarksville, Hector and London, Arkansas.
As of March 31, 1997, FBAR had deposits of approximately $207 million and loans
of approximately $156 million, after adjustment for the two branches to be
retained by First Commercial and transferred to a competing bank.
FIRST BANK OF ARKANSAS--SEARCY. The main office of FBAS is located in
Searcy, Arkansas, a city of approximately 15,000 people. Searcy is located in
central Arkansas, approximately 50 miles northeast of Little Rock on U.S.
Highway 67- 167. The city is the home of Harding University, a four year
private university with an enrollment of approximately 4,100 students. Searcy
has experienced, and is continuing to experience, moderate growth within the
business and residential housing markets.
FBAS, an Arkansas chartered bank, currently has the third largest market
share in the Searcy market. Upon consummation of the purchase transaction, FBAS
will maintain its main office and two full service branches in Searcy, Arkansas
and a full service branch in Kensett, Arkansas. As of March 31, 1997, FBAS had
deposits of approximately $73 million and loans of approximately $64 million.
OWNERSHIP
As of March 21, 1997, the directors and executive officers of the Company
and their immediate families owned approximately 7.32% of the Company's common
stock and the Simmons First National Corporation Employee Stock Ownership Plan
owned approximately 8.91% of the Company's outstanding common stock.
5
<PAGE> 10
SIMMONS TRUST
Simmons Trust is a statutory business trust formed under Delaware law
pursuant to (i) a trust agreement, dated as of June 2, 1997, executed by the
Company, as depositor, and the trustees of Simmons Trust (the "Trustees"),
and (ii) a certificate of trust filed with the Delaware Secretary of State on
June 3, 1997. The initial trust agreement will be amended and restated in its
entirety (as so amended and restated, the "Trust Agreement") substantially in
the form filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. The Trust Agreement will be qualified as an indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Upon issuance of the Preferred Securities, the purchasers thereof will
own all of the Preferred Securities. The Company will acquire all of the Common
Securities which will represent an aggregate liquidation amount equal to at
least 3% of the total capital of Simmons Trust. The Common Securities will rank
pari passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that upon the occurrence and during the continuance of an
Event of Default (as defined herein) under the Trust Agreement resulting from a
Debenture Event of Default, the rights of the Company as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Preferred Securities. See "Description of the Preferred
Securities--Subordination of Common Securities." Simmons Trust exists for the
exclusive purposes of (i) issuing the Trust Securities representing undivided
beneficial interests in the assets of Simmons Trust, (ii) investing the gross
proceeds of the Trust Securities in the Subordinated Debentures issued by the
Company, and (iii) engaging in only those other activities necessary,
advisable, or incidental thereto. The Subordinated Debentures and payments
thereunder will be the only assets of Simmons Trust and payments under the
Subordinated Debentures will be the only revenue of Simmons Trust. Simmons
Trust has a term of 55 years, but may terminate earlier as provided in the
Trust Agreement. The principal executive office of Simmons Trust is 501 Main
Street, Pine Bluff, Arkansas 71601, and its telephone number is (870) 541-1000.
The number of Trustees will, pursuant to the Trust Agreement, initially be
five. Three of the Trustees (the "Administrative Trustees") will be persons
who are employees or officers of, or who are affiliated with, the Company. The
fourth trustee will be a financial institution that is unaffiliated with the
Company, which trustee will serve as institutional trustee under the Trust
Agreement and as indenture trustee for the purposes of compliance with the
provisions of the Trust Indenture Act (the "Property Trustee"). State Street
Bank and Trust Company, a state chartered trust company organized under the
laws of the Commonwealth of Massachusetts, will be the Property Trustee until
removed or replaced by the holder of the Common Securities. For purposes of
compliance with the provisions of the Trust Indenture Act, State Street Bank
and Trust Company will also act as trustee (the "Guarantee Trustee") under
the Guarantee and as Debenture Trustee (as defined herein) under the Indenture.
The fifth trustee will be an entity that maintains its principal place of
business in the State of Delaware (the "Delaware Trustee"). Wilmington Trust
Company, a Delaware chartered trust company, will act as Delaware Trustee.
The Property Trustee will hold title to the Subordinated Debentures for the
benefit of the holders of the Trust Securities and in such capacity will have
the power to exercise all rights, powers and privileges under the Indenture.
The Property Trustee will also maintain exclusive control of a segregated
non-interest-bearing bank account (the "Property Account") to hold all
payments made in respect of the Subordinated Debentures for the benefit of the
holders of the Trust Securities. The Property Trustee will make payments of
Distributions and payments on liquidation, redemption and otherwise to the
holders of the Trust Securities out of funds from the Property Account. The
Guarantee Trustee will hold the Guarantee for the benefit of the holders of the
Preferred Securities. The Company, as the holder of all the Common Securities,
will have the right to appoint, remove or replace any Trustee and to increase
or decrease the number of Trustees. The Company will pay all fees and expenses
related to Simmons Trust and the offering of the Trust Securities.
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the Trust
Agreement, the Delaware Business Trust Act (the "Trust Act") and the Trust
Indenture Act. See "Description of the Preferred Securities."
6
<PAGE> 11
<TABLE>
THE OFFERING
<C> <S>
Securities Offered............600,000 Preferred Securities having a Liquidation Amount of $25 per
Preferred Security. The Preferred Securities represent preferred
undivided beneficial interests in the assets of Simmons Trust, which
will consist solely of the Subordinated Debentures and payments
thereunder. Simmons Trust has granted the Underwriter an option,
exercisable within 30 days after the date of this Prospectus, to
purchase up to an additional 90,000 Preferred Securities at the
initial offering price, solely to cover over-allotments, if any.
Distributions.................The Distributions payable on each Preferred Security will be fixed at
a rate per annum of % of the Liquidation Amount of $25 per
Preferred Security, will be cumulative, will accrue from
, 1997, the date of issuance of the Preferred
Securities, and will be payable quarterly in arrears, on March 31,
June 30, September 30 and December 31 of each year, commencing
September 30, 1997. See "Description of the Preferred Securi-
ties--Distributions--Payment of Distributions."
Option to Extend Interest
Payment Period..............The Company has the right, at any time, so long as no Debenture Event
of Default has occurred and is continuing, to defer payments of
interest on the Subordinated Debentures for a period not exceeding 20
consecutive quarters; provided, that no Extended Interest Payment
Period may extend beyond the Stated Maturity of the Subordinated
Debentures. As a consequence of the extension by the Company of the
interest payment period, quarterly Distributions on the Preferred
Securities will be deferred (though such Distributions would continue
to accrue with interest thereon compounded quarterly, since interest
will continue to accrue and compound on the Subordinated Debentures)
during any such Extended Interest Payment Period. During an Extended
Interest Payment Period, the Company will be prohibited, subject to
certain exceptions described herein, from declaring or paying any cash
distributions with respect to its capital stock or debt securities
that rank pari passu with or junior to the Subordinated Debentures.
Upon the termination of any Extended Interest Payment Period and the
payment of all amounts then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing
requirements. See "Description of the Preferred
Securities--Distributions--Extension Period" and "Description of the
Subordinated Debentures--Option to Extend Interest Payment Period."
Should an Extended Interest Payment Period occur, holders of Preferred
Securities will be required to include deferred interest income in
their gross income for United States federal income tax purposes in
advance of receipt of the cash distributions with respect to such
deferred interest payments. See "Certain Federal Income Tax
Consequences--Potential Extension of Interest Payment Period and
Original Issue Discount."
Early Redemption..............The Preferred Securities are subject to mandatory redemption, in whole
or in part, upon repayment of the Subordinated Debentures at maturity
or their earlier redemption. Subject to Federal Reserve approval, if
then required under applicable capital guidelines or policies of the
Federal Reserve, the Subordinated Debentures are redeemable prior to
maturity at the option of the Company (i) on or after June 30, 2002,
in whole at any time or in part from time to time, or (ii) at any
time, in whole (but not in part),
7
<PAGE> 12
within 180 days following the occurrence of a Tax Event, a Capital
Treatment Event or an Investment Company Event, in each case at the
redemption price equal to 100% of the principal amount of the
Subordinated Debenture, together with any accrued but unpaid interest
to the date fixed for redemption. See "Description of the
Subordinated Debentures--
Redemption."
Distribution of Subordinated
Debentures..................The Company has the right at any time to terminate the Preferred
Securities and cause the Subordinated Debentures to be distributed to
holders of Preferred Securities in liquidation of Simmons Trust,
subject to the Company having received prior approval of the Federal
Reserve to do so if then required under applicable capital guidelines
or policies of the Federal Reserve. See "Description of the Preferred
Securities--Redemption" and "Description of the Preferred
Securities--Liquidation Distribution Upon Termination."
Guarantee.....................The Company has guaranteed the payment of Distributions and payments
on liquidation or redemption of the Preferred Securities, but only in
each case to the extent of funds held by Simmons Trust, as described
herein. The Company and Simmons Trust believe that, taken together,
the obligations of the Company under the Guarantee, the Trust
Agreement, the Subordinated Debentures, the Indenture and the Expense
Agreement provide, in the aggregate, a full, irrevocable and
unconditional guarantee, on a subordinated basis, of all of the
obligations of Simmons Trust under the Preferred Securities. The
obligations of the Company under the Guarantee and the Preferred
Securities are subordinate and junior in right of payment to all
Senior Debt, Subordinated Debt and Additional Senior Obligations of
the Company. If the Company does not make principal or interest
payments on the Subordinated Debentures, Simmons Trust will not have
sufficient funds to make distributions on the Preferred Securities; in
which event, the Guarantee will not apply to such Distributions until
Simmons Trust has sufficient funds available therefor. See
"Description of the Guarantee."
Voting Rights.................The holders of the Preferred Securities generally will have no voting
rights except in limited circumstances. See "Description of the
Preferred Securities--Voting Rights; Amendment of Trust Agreement."
Use of Proceeds...............The proceeds from the sale of the Preferred Securities offered hereby
will be used by Simmons Trust to purchase the Subordinated Debentures
issued by the Company. The Company intends to use the net proceeds
from the sale of the Subordinated Debentures to pay a portion of the
purchase price for the Pending Acquisitions and, pending their use for
such purpose, the net proceeds will be invested in short-term
investment securities. See "Use of Proceeds."
Nasdaq National Market
Symbol......................Application has been made to have the Preferred Securities approved
for quotation on The Nasdaq Stock Market's National Market under the
symbol "SFNCP."
</TABLE>
8
<PAGE> 13
SUMMARY CONSOLIDATED FINANCIAL DATA
The consolidated financial data below summarizes historical consolidated
financial information of the Company for the periods indicated and should be
read in conjunction with the financial statements and other information
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, which is incorporated by reference in this Prospectus. The
unaudited consolidated financial data below for the interim periods indicated
has been derived from, and should be read in conjunction with, the Company's
Quarterly Report on Form 10-Q for the three-month period ended March 31, 1997,
which is incorporated by reference in this Prospectus. See "Available
Information" and "Incorporation of Certain Documents by Reference." All
adjustments considered necessary for a fair presentation have, in the opinion
of management, been included in the unaudited interim data. Interim results for
the three months ended March 31, 1997 are not necessarily indicative of results
which may be expected for future periods, including the year ending December
31, 1997.
<TABLE>
<CAPTION>
MARCH 31,
(UNAUDITED) YEARS ENDED DECEMBER 31,
--------------------- ------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
-------- -------- -------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OPERATIONS:
Interest income................ $ 15,941 $ 14,910 $ 61,367 $ 56,229 $ 45,727 $ 44,394 $ 46,042
Interest expense............... 7,055 6,931 27,562 24,465 16,468 15,944 19,517
-------- -------- -------- -------- -------- -------- --------
Net interest income............ 8,886 7,979 33,805 31,764 29,259 28,450 26,525
Provision for loan losses...... 764 502 2,341 2,092 2,050 3,006 3,741
-------- -------- -------- -------- -------- -------- --------
Net interest income after
provision for loan losses.... 8,122 7,477 31,464 29,672 27,209 25,444 22,784
Other noninterest income....... 6,226 6,079 25,116 24,365 24,847 26,129 25,578
Noninterest expense............ 10,732 10,450 41,956 39,820 38,415 38,711 37,978
-------- -------- -------- -------- -------- -------- --------
Income before income tax
expense...................... 3,616 3,106 14,624 14,217 13,641 12,862 10,384
Income tax expense............. 1,028 864 4,323 4,198 3,781 3,466 2,907
-------- -------- -------- -------- -------- -------- --------
Net income..................... $ 2,588 $ 2,242 $ 10,301 $ 10,019 $ 9,860 $ 9,396 $ 7,477
======== ======== ======== ======== ======== ======== ========
PER SHARE DATA:<F1>
Net income:
Earnings per common
share.................... $ 0.45 $ 0.39 $ 1.81 $ 1.77 $ 1.79 $ 1.85 $ 1.73
Cash dividends declared.... 0.13 0.11 0.48 0.40 0.31 0.27 0.27
Book value................. 18.20 17.04 18.02 16.91 15.17 13.66 12.02
Dividend payout ratio...... 28.89% 28.21% 26.47% 22.79% 17.32% 14.59% 15.61%
SELECTED BALANCE SHEET DATA:
Assets......................... $891,263 $832,480 $881,332 $839,884 $713,262 $738,760 $705,903
Securities<F2>................. 238,156 227,928 237,662 224,800 171,984 198,626 202,994
Loans and leases............... 515,746 454,347 510,813 471,956 418,392 394,426 367,655
Allowance for loan and lease
losses....................... (8,297) (8,412) (8,368) (8,418) (7,790) (7,430) (5,748)
Deposits....................... 744,432 694,803 736,367 704,768 583,538 610,355 590,409
Long term debt................. 1,056 4,747 1,067 4,757 12,144 12,178 12,208
Stockholders' equity........... 104,010 97,540 102,825 96,797 83,700 75,335 51,219
PERFORMANCE RATIOS:
Return on average equity....... 10.07% 9.22% 10.31% 10.95% 12.28% 14.31% 15.43%
Return on average assets....... 1.19 1.08 1.22 1.30 1.39 1.33 1.09
Net interest margin (fully
taxable equivalent).......... 4.72 4.44 4.65 4.77 4.80 4.75 4.56
ASSET QUALITY RATIOS:
Allowance for loan losses to
loans........................ 1.61% 1.82% 1.73% 1.91% 1.99% 1.88% 1.60%
Non-performing assets to
loans........................ 0.86 0.68 0.97 0.68 0.75 1.06 1.65
Net loan losses to average
loans........................ 0.16 0.11 0.49 0.42 0.43 0.36 0.91
CAPITAL RATIOS:
Average equity to average
assets....................... 11.67% 11.72% 11.67% 11.53% 11.73% 10.20% 7.26%
Tier 1 capital ratio........... 18.84 19.57 18.66 18.63 19.25 17.19 12.27
Total risk-based capital
ratio........................ 20.09 20.98 19.91 20.03 21.56 20.01 15.76
Leverage ratio................. 11.44 11.20 11.70 10.91 11.47 10.21 6.90
RATIO OF EARNINGS TO FIXED
CHARGES:<F3>
Including interest on
deposits..................... 1.51x 1.44x 1.52x 1.57x 1.81x 1.79x 1.52x
Excluding interest on
deposits..................... 6.91 6.09 7.65 6.62 6.90 7.54 5.48
<FN>
- ----------
<F1>Per share data has been adjusted to give retroactive effect to a 50% stock
dividend paid on December 6, 1996.
<F2>Includes market value adjustment on held-to-maturity securities.
<F3>Earnings consist of income before income tax plus interest expense. Fixed
charges consist of interest expense, amortization of debt issuance costs and
the interest component of rent expense. Neither the Company, FBAR nor FBAS
currently have any preferred stock outstanding.
</TABLE>
9
<PAGE> 14
SUMMARY PRO FORMA CONSOLIDATED FINANCIAL DATA
The unaudited pro forma consolidated financial data below summarizes
historical consolidated financial statements of the Company and financial
statements of FBAR and FBAS assuming the Pending Acquisitions and the issuance
of the Preferred Securities hereby offered by Simmons Trust and the receipt by
the Company of the net proceeds from the corresponding sale of the Subordinated
Debentures to Simmons Trust (the ``Offering'') had been effective for the
periods indicated and had been accounted for under the purchase method of
accounting, after giving effect to the pro forma adjustments described in the
notes to the pro forma consolidated financial statements included elsewhere in
this Prospectus and also incorporated by reference in this Prospectus. See
"Pro Forma Consolidated Financial Statements" and "Incorporation of Certain
Documents by Reference."
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED
MARCH 31, 1997<F4> DECEMBER 31, 1996
------------------ -----------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
SELECTED RESULTS OF OPERATIONS:
Interest income............................... $ 21,980 $ 83,546
Interest expense.............................. 11,338 43,587
---------- ----------
Net interest income........................... 10,642 39,959
Provision for loan losses..................... 956 4,710
---------- ----------
Net interest income after provision for loan
losses...................................... 9,686 35,249
Other noninterest income...................... 6,739 27,034
Noninterest expense........................... 12,849 49,888
---------- ----------
Income before income tax expense.............. 3,576 12,395
Income tax expense............................ 1,038 3,655
---------- ----------
Net income.................................... $ 2,538 $ 8,740
========== ==========
PER SHARE DATA:<F1>
Net income:
Earnings per common share................. $ 0.44 $ 1.53
Cash dividends declared................... 0.13 0.48
Book value................................ 18.20 --
Dividend payout ratio..................... 28.71% --
SELECTED BALANCE SHEET DATA:
Assets........................................ $1,224,939 --
Securities<F2>................................ 313,359 --
Loans and leases.............................. 735,799 --
Allowance for loan and lease losses........... (12,091) --
Deposits...................................... 1,024,998 --
Long term debt................................ 49,111 --
Stockholders' equity.......................... 104,010 --
PERFORMANCE RATIOS:
Return on average equity...................... 9.88% --
Return on average assets...................... 0.85 --
Net interest margin (fully taxable
equivalent)................................. 4.17 --
ASSET QUALITY RATIOS:
Allowance for loan losses to loans............ 1.64% --
Non-performing assets to loans................ 0.88 --
Net loan losses to average loans.............. 0.12 --
CAPITAL RATIOS:
Average equity to average assets.............. 8.60% --
Tier 1 capital ratio.......................... 11.20 --
Total risk-based capital ratio................ 12.45 --
Leverage ratio................................ 7.26 --
RATIO OF EARNINGS TO FIXED CHARGES:<F3>
Including interest on deposits................ 1.31x 1.28x
Excluding interest on deposits................ 3.22 3.01
<FN>
- ----------
<F1>Per share data has been adjusted to give retroactive effect to a 50% stock
dividend paid on December 6, 1996.
<F2>Includes market value adjustment on held-to-maturity securities.
<F3>Earnings consist of income before income tax plus interest expense. Fixed
charges consist of interest expense, amortization of debt issuance costs and
the interest component of rent expense. Neither the Company, FBAR nor FBAS
currently have any preferred stock outstanding.
<F4>Pro Forma income statement assumes the pending acquisitions occurred on
January 1, 1996. Pro Forma balance sheet assumes the pending acquisitions
occurred at the end of the period presented.
</TABLE>
10
<PAGE> 15
RISK FACTORS
Prospective investors should carefully consider, together with the other
information contained and incorporated by reference in this Prospectus, the
following risk factors before purchasing the Preferred Securities offered
hereby. Prospective investors should note, in particular, that this Prospectus
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of
the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and
that actual results could differ materially from those contemplated by such
statements. Prospective investors should also refer to the factors discussed
under "Forward Looking Statements" set forth in the Company's Annual Report
on Form 10-K for the year ended December 31, 1996, which is incorporated herein
by reference. See "Incorporation of Certain Documents by Reference." These
considerations are not intended to represent a complete list of the general or
specific risks that may affect the Preferred Securities, the Subordinated
Debentures, the Company or Simmons Trust. It should be recognized that other
risks may be significant, presently or in the future, and the risks set forth
below may affect the Preferred Securities, the Subordinated Debentures, the
Company or Simmons Trust to a greater extent than indicated.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE GUARANTEE AND THE SUBORDINATED
DEBENTURES
The obligations of the Company under the Guarantee issued for the benefit
of the holders of Preferred Securities and under the Subordinated Debentures
are unsecured and rank subordinate and junior in right of payment to all Senior
Debt, Subordinated Debt and Additional Senior Obligations of the Company. At
March 31, 1997, the aggregate outstanding Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company was approximately $1.1 million
and, upon consummation of the Pending Acquisitions, such aggregate amount will
be approximately $34.1 million. See ``Use of Proceeds'' and ``Capitalization.''
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any Bank upon such Bank's
liquidation or reorganization or otherwise (and thus the ability of holders of
the Preferred Securities to benefit indirectly from such distribution) is
subject to the prior claims of creditors of that Bank, except to the extent
that the Company may itself be recognized as a creditor of that Bank. The
Subordinated Debentures, therefore, will be effectively subordinated to all
existing and future liabilities of the Banks and holders of Subordinated
Debentures and Preferred Securities should look only to the assets of the
Company for payments on the Subordinated Debentures. Neither the Indenture, the
Guarantee nor the Trust Agreement places any limitation on the amount of
secured or unsecured debt, including Senior Debt, Subordinated Debt and
Additional Senior Obligations, that may be incurred by the Company. See
"Description of the Guarantee--Status of the Guarantee" and "Description of
the Subordinated Debentures--Subordination."
The ability of the Company to pay amounts due on the Preferred Securities
is solely dependent upon the Company making payments on the Subordinated
Debentures as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES
The Company has the right under the Indenture, so long as no Debenture
Event of Default has occurred and is continuing, to defer the payment of
interest on the Subordinated Debentures at any time or from time to time for a
period not exceeding 20 consecutive quarters with respect to each Extended
Interest Payment Period; provided that no Extended Interest Payment Period may
extend beyond the Stated Maturity of the Subordinated Debentures. As a
consequence of any such deferral, quarterly Distributions on the Preferred
Securities by Simmons Trust will be deferred (and the amount of Distributions
to which holders of the Preferred Securities are entitled will accumulate
additional Distributions thereon at the rate of % per annum, compounded
quarterly from the relevant payment date for such Distributions) during any
such Extended Interest Payment Period. During any such Extended Interest
Payment Period, the Company may not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock (other than (a) dividends
or distributions in common stock of the Company, any declaration of a non-cash
dividend in connection with the implementation of a shareholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or repurchase of any such rights pursuant thereto, and (b) purchases of common
stock of the Company related to the rights under any of the Company's benefit
plans for its directors, officers or employees), (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the
11
<PAGE> 16
Company that rank pari passu with or junior in interest to the Subordinated
Debentures or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Subordinated
Debentures (other than payments under the Guarantee), or (iii) redeem, purchase
or acquire less than all of the Subordinated Debentures or any of the Preferred
Securities. Prior to the termination of any such Extended Interest Payment
Period, the Company may further defer the payment of interest; provided that no
Extended Interest Payment Period may exceed 20 consecutive quarters or extend
beyond the Stated Maturity of the Subordinated Debentures. Upon the termination
of any Extended Interest Payment Period and the payment of all interest then
accrued and unpaid (together with interest thereon at the annual rate of %
compounded quarterly, to the extent permitted by applicable law), the Company
may elect to begin a new Extended Interest Payment Period, subject to the above
requirements. Subject to the foregoing, there is no limitation on the number of
times that the Company may elect to begin an Extended Interest Payment Period.
See "Description of the Preferred Securities--Distributions--Extension
Period" and "Description of the Subordinated Debentures--Option to Extend
Interest Payment Period."
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures. Should an Extended Interest Payment Period occur,
however, each holder of Preferred Securities will be required to accrue and
recognize income (in the form of OID) in respect of its pro rata share of the
interest accruing on the Subordinated Debentures held by Simmons Trust for
federal income tax purposes. A holder of Preferred Securities must, as a
result, include such income in gross income for United States federal income
tax purposes in advance of the receipt of cash, and will not receive the cash
related to such income from Simmons Trust if the holder disposes of the
Preferred Securities prior to the record date for the payment of the related
Distributions. See "Certain Federal Income Tax Consequences--Potential
Extension of Interest Payment Period and Original Issue Discount."
Should the Company elect to exercise its right to defer payments of
interest on the Subordinated Debentures in the future, the market price of the
Preferred Securities is likely to be adversely affected. A holder that disposes
of its Preferred Securities during an Extended Interest Payment Period,
therefore, might not receive the same return on its investment as a holder that
continues to hold its Preferred Securities. As a result of the existence of the
Company's right to defer interest payments, the market price of the Preferred
Securities may be more volatile than the market prices of other securities on
which original issue discount accrues that are not subject to such optional
deferrals.
TAX EVENT, CAPITAL TREATMENT EVENT OR INVESTMENT COMPANY EVENT; REDEMPTION
The Company has the right to redeem the Subordinated Debentures in whole
(but not in part) within 180 days following the occurrence of a Tax Event, a
Capital Treatment Event or an Investment Company Event (whether occurring
before or after June 30, 2002), and, therefore, cause a mandatory redemption of
the Preferred Securities. The exercise of such right is subject to the Company
having received prior approval of the Federal Reserve to do so if then required
under applicable capital guidelines or policies of the Federal Reserve.
"Tax Event" means the receipt by Simmons Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (i) Simmons Trust is, or will be within 90 days of the
date of such opinion, subject to United States federal income tax with respect
to income received or accrued on the Subordinated Debentures, (ii) interest
payable by the Company on the Subordinated Debentures is not, or, within 90
days of such opinion, will not be, deductible by the Company, in whole or in
part, for United States federal income tax purposes, or (iii) Simmons Trust is,
or will be within 90 days of the date of the opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges. The
Company must request and receive an opinion with regard to such matters within
a reasonable period of time after it becomes aware of the possible occurrence
of any of the events described in clauses (i) through (iii) above.
"Capital Treatment Event" means the receipt by Simmons Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such proposed change,
pronouncement or decision is
12
<PAGE> 17
announced on or after the date of issuance of the Preferred Securities under
the Trust Agreement, there is more than an insubstantial risk of impairment of
the Company's ability to treat the aggregate Liquidation Amount of the
Preferred Securities (or any substantial portion thereof) as "Tier 1 Capital"
(or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Company.
"Investment Company Event" means the receipt by Simmons Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, Simmons Trust is or will be
considered an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), which change becomes effective on or after the date of original
issuance of the Preferred Securities.
SHORTENING OR EXTENSION OF STATED MATURITY OF SUBORDINATED DEBENTURES
The Company has the right, at any time, to shorten the maturity of the
Subordinated Debentures to a date not earlier than June 30, 2002. The exercise
of such right is subject to the Company having received prior approval of the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve. The Company also has the right to extend the
maturity of the Subordinated Debentures (whether or not Simmons Trust is
terminated and the Subordinated Debentures are distributed to holders of the
Preferred Securities) to a date no later than June 30, 2036, a date
approximately 39 years after the initial issuance of the Preferred Securities.
Such right may only be exercised, however, if at the time such election is made
and at the time of such extension (i) the Company is not in bankruptcy,
otherwise insolvent or in liquidation, (ii) the Company is not in default in
the payment of any interest or principal on the Subordinated Debentures, and
(iii) Simmons Trust is not in arrears on payments of Distributions on the
Preferred Securities and no deferred Distributions are accumulated. See
"Description of the Subordinated Debentures--General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Preferred Securities, to the
extent not paid by Simmons Trust, (i) any accrued and unpaid Distributions
required to be paid on the Preferred Securities, to the extent that Simmons
Trust has funds available therefor at such time, (ii) the Redemption Price (as
defined herein) with respect to any Preferred Securities called for redemption,
to the extent that Simmons Trust has funds available therefor at such time, and
(iii) upon a voluntary or involuntary dissolution, winding-up or liquidation of
Simmons Trust (other than in connection with the distribution of Subordinated
Debentures to the holders of Preferred Securities or a redemption of all of the
Preferred Securities), the lesser of (a) the amount of the Liquidation
Distribution (as defined herein), to the extent Simmons Trust has funds
available therefor at such time, and (b) the amount of assets of Simmons Trust
remaining available for distribution to holders of the Preferred Securities in
liquidation of Simmons Trust. The holders of not less than a majority in
Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of the Guarantee or to direct the exercise of
any trust power conferred upon the Guarantee Trustee under the Guarantee. Any
holder of the Preferred Securities may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against Simmons Trust, the Guarantee Trustee or
any other Person (as defined in the Guarantee). If the Company were to default
on its obligation to pay amounts payable under the Subordinated Debentures,
Simmons Trust would lack funds for the payment of Distributions or amounts
payable on redemption of the Preferred Securities or otherwise, and, in such
event, holders of Preferred Securities would not be able to rely upon the
Guarantee for such amounts. In the event, however, that a Debenture Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay interest on or principal of the Subordinated
Debentures on the payment date on which such payment is due and payable, then a
holder of Preferred Securities may institute a legal proceeding directly
against the Company for enforcement of payment to such holder of the principal
of or interest on such Subordinated Debentures having a principal amount equal
to the aggregate Liquidation Amount of the Preferred Securities of such holder
(a "Direct Action"). The exercise by the Company of its right, as described
herein, to defer the payment of interest on the Subordinated Debentures does
not constitute a Debenture Event of Default. In connection with such Direct
Action, the Company will have a right of set-off under the Indenture to the
extent of any payment made by the Company to such holder of Preferred
Securities in the Direct Action. Except as described herein, holders of
Preferred Securities
13
<PAGE> 18
will not be able to exercise directly any other remedy available to the holders
of the Subordinated Debentures or assert directly any other rights in respect
of the Subordinated Debentures. See "Description of the Subordinated
Debentures--Enforcement of Certain Rights by Holders of Preferred Securities,"
"Description of the Subordinated Debentures--Debenture Events of Default" and
"Description of the Guarantee." The Trust Agreement provides that each holder
of Preferred Securities by acceptance thereof agrees to the provisions of the
Guarantee and the Indenture.
NO VOTING RIGHTS EXCEPT IN LIMITED CIRCUMSTANCES
Holders of Preferred Securities will have no voting rights except in
limited circumstances relating only to the modification of the Preferred
Securities and the exercise of the rights of Simmons Trust as holder of the
Subordinated Debentures and the Guarantee. Holders of Preferred Securities will
not be entitled to vote to appoint, remove or replace the Property Trustee or
the Delaware Trustee, as such voting rights are vested exclusively in the
holder of the Common Securities (except upon the occurrence of certain events
described herein). The Property Trustee, the Administrative Trustees and the
Company may amend the Trust Agreement without the consent of holders of
Preferred Securities to ensure that Simmons Trust will be classified for United
States federal income tax purposes as a grantor trust even if such action
adversely affects the interests of such holders. See "Description of the
Preferred Securities--Voting Rights; Amendment of Trust Agreement" and
"Description of the Preferred Securities
- --Removal of Simmons Trust Trustees."
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed certain tax law changes that
would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations issued on or after December 7,
1995 (the "1996 Proposed Legislation") if such debt obligations (i) have a
weighted average maturity in excess of 40 years or (ii) have a maximum term in
excess of 20 years and are not shown as indebtedness on the issuer's applicable
consolidated balance sheet. On March 29, 1996, Senate Finance Committee
Chairman William V. Roth, Jr. and House Ways and Means Committee Chairman Bill
Archer issued a joint statement (the "Joint Statement") indicating their
intent that certain legislative proposals initiated by the Clinton
administration, including the 1996 Proposed Legislation, that may be adopted by
either of the tax-writing committees of Congress would have an effective date
that is no earlier than the date of "appropriate Congressional action." In
addition, subsequent to the publication of the Joint Statement, Senator Daniel
Patrick Moynihan and Representatives Sam M. Gibbons and Charles B. Rangel wrote
letters to Treasury Department officials concurring with the views expressed in
the Joint Statement. Neither the 1996 Proposed Legislation nor similar
legislation was enacted during the 104th Congress. On February 6, 1997,
President Clinton proposed in the administration's fiscal year 1998 budget
certain tax law changes (the "1997 Proposed Legislation") that would, among
other things, generally deny corporate issuers a deduction for interest or OID
in respect of certain debt obligations if such debt obligations have a maximum
term in excess of 15 years and are not shown as indebtedness on the issuer's
applicable consolidated balance sheet. The proposed budget also contains a
provision that would deny a deduction to corporate issuers for interest or OID
with respect to debt instruments that have a maximum term of more than 40 years
(including rights to extend, renew or relend), or are payable in stock of the
issuer or a related party. The United States Treasury Department's summary of
the 1997 Proposed Legislation states that the above provisions regarding the
deduction of interest would generally be effective for instruments issued on or
after the date of "first Congressional committee action" with respect to the
1997 Proposed Legislation. The Ways and Means Committee began a full committee
hearing on the President's fiscal 1998 budget on February 11, 1997 (the
"February Hearing"). There can be no assurance that the effective date
guidance in the administration's proposal will be adopted if the proposed
change to the tax law is enacted or that the February Hearing will not be
considered the "first Congressional Committee action." Nor can there be any
assurance that other legislation enacted after the date hereof will not
otherwise adversely affect the ability of the Company to deduct the interest
payable on the Subordinated Debentures. Consequently, there can be no assurance
that a Tax Event will not occur. A Tax Event would permit the Company, upon
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, to cause a redemption of the
Preferred Securities before, as well as after, June 30, 2002. See "Description
of the Subordinated Debentures--Redemption" and "Description of the Preferred
Securities--Redemption--Tax Event Redemption, Capital Treatment Event
Redemption or Investment Company Event Redemption" and "Certain Federal
Income Tax Consequences--Effect of Proposed Changes in Tax Laws."
14
<PAGE> 19
REDEMPTION; EXCHANGE OF PREFERRED SECURITIES FOR SUBORDINATED DEBENTURES
The Company has the right at any time to dissolve, wind-up or terminate
Simmons Trust and cause the Subordinated Debentures to be distributed to the
holders of the Preferred Securities in exchange therefor in liquidation of
Simmons Trust. The exercise of such right is subject to the Company having
received prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve. The Company
will have the right, in certain circumstances, to redeem the Subordinated
Debentures in whole or in part, in lieu of a distribution of the Subordinated
Debentures by Simmons Trust, in which event Simmons Trust will redeem the Trust
Securities on a pro rata basis to the same extent as the Subordinated
Debentures are redeemed by the Company. Any such distribution or redemption
prior to the Stated Maturity will be subject to prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies of the
Federal Reserve. See "Description of the Preferred Securities--Redemption--Tax
Event Redemption, Capital Treatment Event Redemption or Investment Company
Event Redemption."
Under current United States federal income tax law, a distribution of
Subordinated Debentures upon the dissolution of Simmons Trust would not be a
taxable event to holders of the Preferred Securities. If, however, Simmons
Trust is characterized as an association taxable as a corporation at the time
of the dissolution of Simmons Trust, the distribution of the Subordinated
Debentures may constitute a taxable event to holders of Preferred Securities.
Moreover, upon the occurrence of a Tax Event, a dissolution of Simmons Trust in
which holders of the Preferred Securities receive cash may be a taxable event
to such holders. See "Certain Federal Income Tax Consequences--Receipt of
Subordinated Debentures or Cash Upon Liquidation of Simmons Trust."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities upon a dissolution or liquidation of Simmons Trust.
The Preferred Securities or the Subordinated Debentures, may, therefore, trade
at a discount to the price that the investor paid to purchase the Preferred
Securities offered hereby. Because holders of Preferred Securities may receive
Subordinated Debentures, prospective purchasers of Preferred Securities are
also making an investment decision with regard to the Subordinated Debentures
and should carefully review all the information regarding the Subordinated
Debentures contained herein.
If the Subordinated Debentures are distributed to the holders of Preferred
Securities upon the liquidation of Simmons Trust, the Company will use its best
efforts to list the Subordinated Debentures on The Nasdaq Stock Market's
National Market or such stock exchanges, if any, on which the Preferred
Securities are then listed.
TRADING PRICE; ABSENCE OF PRIOR PUBLIC MARKET FOR THE PREFERRED SECURITIES
The Preferred Securities may trade at prices that do not fully reflect the
value of accrued but unpaid interest with respect to the underlying
Subordinated Debentures. A holder of Preferred Securities that disposes of its
Preferred Securities between record dates for payments of Distributions (and
consequently does not receive a Distribution from Simmons Trust for the period
prior to such disposition) will nevertheless be required to include accrued but
unpaid interest (or OID) on the Subordinated Debentures through the date of
disposition in income as ordinary income and to add the amount of any accrued
OID to its adjusted tax basis in its pro rata share of the underlying
Subordinated Debentures deemed disposed of. Such holder will recognize a
capital loss to the extent the selling price (which may not fully reflect the
value of accrued but unpaid interest) is less than its adjusted tax basis
(which will include all accrued OID). Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for United States
federal income tax purposes. See "Certain Federal Income Tax
Consequences--Disposition of Preferred Securities."
There is no current public market for the Preferred Securities. Although
application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market, there can be no
assurance that an active public market will develop for the Preferred
Securities or that, if such market develops, the market price will equal or
exceed the public offering price set forth on the cover page of this
Prospectus. The public offering price for the Preferred Securities has been
determined through negotiations between the Company and the Underwriters.
Prices for the Preferred Securities will be determined in the marketplace and
may be influenced by many factors, including prevailing interest rates, the
liquidity of the market for the Preferred Securities, investor perceptions of
the Company and general industry and economic conditions.
15
<PAGE> 20
PREFERRED SECURITIES ARE NOT INSURED
The Preferred Securities are not insured by the Bank Insurance Fund or the
Savings Association Insurance Fund of the Federal Deposit Insurance Corporation
or by any other governmental agency.
USE OF PROCEEDS
Simmons Trust will use the gross proceeds received from the sale of the
Preferred Securities to purchase Subordinated Debentures from the Company. The
Company intends to use the net proceeds from the sale of the Subordinated
Debentures, expected to be approximately $14,150,000, to pay a portion of the
purchase price and related expenses for the Pending Acquisitions, expected to
be approximately $54,680,000, and pending their use for such purpose, the net
proceeds will be invested in short-term investment securities. The remaining
portion of the purchase price and related expenses for the Pending
Acquisitions, approximately $40,530,000, will be funded by (i) the liquidation
of Federal Funds sold and securities purchased under agreements to resell,
expected to be approximately $14,500,000, (ii) the sale of investment
securities, expected to be approximately $6,030,000 and (iii) long-term
indebtedness to be incurred by the Company, expected to be approximately
$20,000,000. The Company expects to obtain long-term financing subject to
customary terms and conditions with an interest rate not to exceed 7.75% and a
maturity of not less than five years, based upon an amortization of principal
over a period of not less than ten years. The Company has received four
commitments from banks to provide long-term financing for the Pending
Acquisitions which generally satisfy these parameters, but has not yet accepted
any of the commitments. The Company is currently analyzing the various
commitments and negotiating with the prospective lenders.
MARKET FOR THE PREFERRED SECURITIES
Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market under the symbol
"SFNCP." Although Stifel, Nicolaus & Company, Incorporated has informed the
Company that it presently intends to make a market in the Preferred Securities,
there can be no assurance that an active and liquid trading market will develop
or, if developed, that such a market will continue. The offering price and
distribution rate have been determined by negotiations among representatives of
the Company and the Underwriter, and the offering price of the Preferred
Securities may not be indicative of the market price following the offering.
See "Underwriting."
ACCOUNTING TREATMENT
Simmons Trust will be treated, for financial reporting purposes, as a
subsidiary of the Company and, accordingly, the accounts of Simmons Trust will
be included in the consolidated financial statements of the Company. The
Preferred Securities will be presented as a separate line item as long-term
debt in the consolidated balance sheet of the Company under the caption
"Guaranteed Preferred Beneficial Interests in Company's Subordinated
Debentures," and appropriate disclosures about the Preferred Securities, the
Guarantee and the Subordinated Debentures will be included in the notes to
consolidated financial statements. The Company will record Distributions
payable on the Preferred Securities as an expense in the consolidated
statements of operations for financial reporting purposes.
All future reports of the Company filed under the Exchange Act will (a)
present the Trust Securities issued by Simmons Trust on the balance sheet as
long-term debt under a separate line-item entitled "Guaranteed Preferred
Beneficial Interests in Company's Subordinated Debentures," (b) include in a
footnote to the financial statements disclosure that the sole assets of Simmons
Trust are the Subordinated Debentures (including the outstanding principal
amount, interest rate and maturity date of such Subordinated Debentures) and
payments thereunder, and (c) include in an audited footnote to the financial
statements disclosure that the Company owns all of the Common Securities of
Simmons Trust, the sole assets of Simmons Trust are the Subordinated
Debentures, and the back-up obligations, in the aggregate, constitute a full
and unconditional guarantee by the Company of the obligations of Simmons Trust
under the Preferred Securities.
16
<PAGE> 21
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of
the Company at March 31, 1997, and as adjusted to give effect to (i) the
Offering, and (ii) the consummation of the Offering and the Pending
Acquisitions, as if each such transaction had been consummated on March 31,
1997, and assuming the Underwriters' over-allotment option was not exercised.
<TABLE>
<CAPTION>
MARCH 31, 1997
----------------------------------------------------
AS ADJUSTED
AS ADJUSTED FOR THE
FOR THE OFFERING AND THE
ACTUAL OFFERING PENDING ACQUISITIONS
------ ----------- --------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
LONG-TERM DEBT:
Notes payable................................. $ 1,056 $ 1,056 $ 34,111<F1>
Guaranteed preferred beneficial interests in
the Company's Subordinated Debentures....... 15,000 15,000
-------- -------- --------
Total long-term debt...................... 1,056 16,056 49,111
STOCKHOLDERS' EQUITY:
Class A common stock, par value $5 per share;
10,000,000 shares authorized; 5,715,194
shares issued and outstanding............... 28,576 28,576 28,576
Surplus....................................... 22,073 22,073 22,073
Undivided profits............................. 52,951 52,951 52,951
Unrealized appreciation on available-for-sale
securities, net of income taxes of $235 at
1997 and $655 at 1996....................... 410 410 410
-------- -------- --------
Total stockholders' equity................ 104,010 104,010 104,010
CAPITAL RATIOS:
Stockholders' equity to total assets.......... 11.67% 11.66% 8.49%
Leverage ratio<F2><F3>........................ 11.45% 13.15% 7.26%
Risk-based capital ratios<F3><F4>
Tier 1 capital to risk-weighted assets.... 18.92% 21.69% 11.20%
Total risk-based capital to risk-weighted
assets.................................. 20.17% 22.94% 12.45%
<FN>
- --------
<F1>Includes $20,000,000 of long-term indebtedness to be incurred by the
Company to fund a portion of the Pending Acquisitions and $13,055,000 of
Federal Home Loan Bank advances to FBAR and FBAS. See "Use of Proceeds"
and "Pro Forma Consolidated Financial Statements."
<F2>The leverage ratio is Tier 1 capital divided by average quarterly assets,
after deducting intangible assets and net deferred tax assets in excess of
regulatory maximum limits.
<F3>The capital ratios, as adjusted, are computed including the total estimated
net proceeds from the sale of the Preferred Securities, in a manner
consistent with Federal Reserve guidelines.
<F4>Federal Reserve guidelines for calculation of Tier 1 capital to
risk-weighted assets limits the amount of cumulative preferred stock which
can be included in Tier 1 capital to 25% of total Tier 1 capital. The total
amount of Preferred Securities offered hereby will be included as Tier 1
capital for the Company.
</TABLE>
17
<PAGE> 22
PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
The following unaudited pro forma consolidated financial statements and
explanatory notes are presented to show the impact on the historical financial
position and results of operation of the Company of the consummation of the
proposed Pending Acquisitions. The Pending Acquisitions will be accounted for
under the purchase method of accounting. See "Summary Information--The
Company--Pending Acquisitions."
The unaudited pro forma consolidated balance sheet assumes that the Pending
Acquisitions were consummated on March 31, 1997. The unaudited pro forma
consolidated statements of income reflect the consolidation of the results of
operations of the Company and FBAR and FBAS for the year ended December 31,
1996, and the three months ended March 31, 1997, as if the Pending Acquisitions
had occurred on January 1, 1996.
The pro forma consolidated financial statements are not necessarily
indicative of the consolidated financial position or results of future
operations of the combined entity or of the actual results that would have been
achieved had the Pending Acquisitions been consummated as of the dates
indicated above.
18
<PAGE> 23
<TABLE>
PRO FORMA CONDENSED COMBINING BALANCE SHEET
MARCH 31, 1997
(DOLLARS IN THOUSANDS--UNAUDITED)
<CAPTION>
FBAR/ COMBINED PRO FORMA PRO FORMA
COMPANY FBAS ENTITY ADJUSTMENTS CONSOLIDATED
------- ----- -------- ----------- ------------
<S> <C> <C> <C> <C> <C>
ASSETS:
Cash and non-interest bearing balances due from
banks........................................... $ 33,519 $ 8,564 $ 42,083 $ -- $ 42,083
Interest bearing balances due from banks.......... 6,434 15 6,449 -- 6,449
Federal funds sold and securities purchased under
agreements to resell............................ 41,470 11,875 53,345 (24,883)<F1b><F1d> 28,462
-------- -------- ---------- -------- ----------
Cash and cash equivalents..................... 81,423 20,454 101,877 (24,883) 76,994
Investment securities............................. 238,156 81,976 320,132 (6,773)<F1b> 313,359
Mortgage loans held for sale, net of unrealized
gains (losses).................................. 5,911 -- 5,911 -- 5,911
Assets held in trading accounts................... 236 -- 236 -- 236
Loans............................................. 515,746 252,083 767,829 (32,030)<F1d> 735,799
Allowance for loan losses....................... (8,297) (3,982) (12,279) 188 <F1d> (12,091)
-------- -------- ---------- -------- ----------
Net loans..................................... 507,449 248,101 755,550 (31,842) 723,708
Premises and equipment............................ 20,873 8,382 29,255 (661)<F1d> 28,594
Foreclosed assets held for sale................... 975 -- 975 -- 975
Interest receivable............................... 8,121 3,043 11,164 -- 11,164
Cost of loan servicing rights acquired............ 8,374 -- 8,374 -- 8,374
Excess of cost over fair value of net assets
acquired, at amortized cost..................... 3,099 1,932 5,031 28,580 <F1b> 33,611
Other assets...................................... 16,646 4,517 21,163 850 <F1c> 22,013
-------- -------- ---------- -------- ----------
TOTAL ASSETS.......................... $891,263 $368,405 $1,259,668 $(34,729) $1,224,939
======== ======== ========== ======== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY:
Non-interest bearing transaction accounts......... $116,440 $ 22,399 $ 138,839 $ (2)<F1d> $ 138,837
Interest bearing transactions accounts and
savings deposits................................ 270,515 57,942 328,457 -- 328,457
Time deposits..................................... 357,477 242,835 600,312 (42,608)<F1d> 557,704
-------- -------- ---------- -------- ----------
Total deposits.............................. 744,432 323,176 1,067,608 (42,610) 1,024,998
Federal funds purchased and securities sold under
agreements to repurchase........................ 28,288 1,657 29,945 -- 29,945
Short-term debt................................... 2,328 -- 2,328 -- 2,328
Long-term debt.................................... 1,056 13,055 14,111 35,000 <F1c> 49,111
Accrued interest and other liabilities............ 11,149 3,398 14,547 -- 14,547
-------- -------- ---------- -------- ----------
Total liabilities........................... $787,253 $341,286 $1,128,539 $ (7,610) $1,120,929
-------- -------- ---------- -------- ----------
STOCKHOLDERS' EQUITY:
Capital Stock
Class A, common, par value $5 a share,
authorized 10,000,000 shares, 5,715,194 issued
and outstanding............................... $ 28,576 $ 200 $ 28,776 $ (200)<F1b> $ 28,576
Surplus........................................... 22,073 17,280 39,353 (17,280)<F1b> 22,073
Undivided profits................................. 52,951 9,696 62,647 (9,696)<F1b> 52,951
Unrealized appreciation on available-for-sale
securities, net of income taxes of $235......... 410 (57) 353 57 <F1b> 410
-------- -------- ---------- -------- ----------
Total stockholders' equity.................. 104,010 27,119 131,129 (27,119) 104,010
-------- -------- ---------- -------- ----------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY................ $891,263 $368,405 $1,259,668 $(34,729) $1,224,939
======== ======== ========== ======== ==========
</TABLE>
19
<PAGE> 24
<TABLE>
PRO FORMA CONDENSED COMBINING STATEMENT OF INCOME
THREE MONTHS ENDED MARCH 31, 1997
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA
<CAPTION>
COM- FBAR/ COMBINED PRO FORMA PRO FORMA
PANY FBAS ENTITY ADJUSTMENTS CONSOLIDATED
---- ----- -------- ----------- ------------
<S> <C> <C> <C> <C> <C>
INTEREST INCOME:
Loans............................................. $11,521 $5,862 $17,383 $ (725)<F2c> $16,658
Federal funds sold and securities purchased under
agreements to resell............................ 538 170 708 (326)<F2b><F2c> 382
Investment securities............................. 3,672 1,121 4,793 (63)<F2b> 4,730
Mortgage loans held for sale, net of unrealized
gains (losses).................................. 117 -- 117 -- 117
Assets held in trading accounts................... 16 -- 16 -- 16
Interest bearing balances due from banks.......... 77 -- 77 -- 77
------- ------ ------- ------- -------
TOTAL INTEREST INCOME......................... 15,941 7,153 23,094 (1,114) 21,980
------- ------ ------- ------- -------
INTEREST EXPENSE:
Interest bearing transaction accounts and savings
deposits........................................ 1,884 431 2,315 -- 2,315
Time deposits..................................... 4,653 3,335 7,988 (476)<F2c> 7,512
Federal funds purchased and securities sold under
agreements to repurchase........................ 463 25 488 -- 488
Short-term debt................................... 29 -- 29 -- 29
Long-term debt.................................... 26 217 243 751 <F2c> 994
------- ------ ------- ------- -------
TOTAL INTEREST EXPENSE........................ 7,055 4,008 11,063 275 11,338
------- ------ ------- ------- -------
NET INTEREST INCOME............................... 8,886 3,145 12,031 (1,389) 10,642
Provision for loan losses......................... 764 192 956 -- 956
------- ------ ------- ------- -------
NET INTEREST INCOME AFTER PROVISION FOR LOAN
LOSSES.......................................... 8,122 2,953 11,075 (1,389) 9,686
------- ------ ------- ------- -------
NON-INTEREST INCOME:
Trust department income........................... 604 33 637 -- 637
Service charges on deposit accounts............... 745 406 1,151 (55)<F2c> 1,096
Other service charges and fees.................... 309 122 431 -- 431
Income on sale of mortgage loans, net of
commissions..................................... 121 -- 121 -- 121
Income on investment banking, net of
commissions..................................... 275 -- 275 -- 275
Credit card fees.................................. 2,194 -- 2,194 -- 2,194
Loan servicing fees............................... 1,706 -- 1,706 -- 1,706
Other income...................................... 272 9 281 -- 281
Investment securities gains (losses), net......... -- (2) (2) -- (2)
------- ------ ------- ------- -------
TOTAL NON-INTEREST INCOME..................... 6,226 568 6,794 (55) 6,739
------- ------ ------- ------- -------
NON-INTEREST EXPENSE:
Salaries and employee benefits.................... 5,636 907 6,543 (88)<F2c> 6,455
Occupancy expense, net............................ 621 327 948 (18)<F2c> 930
Furniture and equipment expense................... 743 -- 743 -- 743
Loss on foreclosed assets......................... 252 -- 252 -- 252
Other expense..................................... 3,480 558 4,038 431 <F2b> 4,469
------- ------ ------- ------- -------
TOTAL NON-INTEREST EXPENSE.................... 10,732 1,792 12,524 325 12,849
------- ------ ------- ------- -------
INCOME BEFORE INCOME TAXES........................ 3,616 1,729 5,345 (1,769) 3,576
Provision for income taxes........................ 1,028 573 1,601 (563)<F2b><F2c> 1,038
------- ------ ------- ------- -------
NET INCOME........................................ $ 2,588 $1,156 $ 3,744 $(1,206) $ 2,538
======= ====== ======= ======= =======
EARNINGS PER AVERAGE COMMON SHARE................. $ 0.45 $ 0.44
======= =======
DIVIDENDS PER COMMON SHARE........................ $ 0.13 $ 0.13
======= =======
RATIO OF EARNINGS TO FIXED CHARGES:
Including interest on deposits.................... 1.31x
=======
Excluding interest on deposits.................... 3.22x
=======
</TABLE>
20
<PAGE> 25
<TABLE>
PRO FORMA CONDENSED COMBINING STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1996
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<CAPTION>
COM- FBAR/ COMBINED PRO FORMA PRO FORMA
PANY FBAS ENTITY ADJUSTMENTS CONSOLIDATED
---- ----- -------- ----------- ------------
<S> <C> <C> <C> <C> <C>
INTEREST INCOME:
Loans............................................. $44,333 $22,640 $66,973 $(2,847)<F2c> $64,126
Federal funds sold and securities purchased under
agreements to resell............................ 1,680 351 2,031 (1,309)<F2b><F2c> 722
Investment securities............................. 13,664 3,594 17,258 (250)<F2b> 17,008
Mortgage loans held for sale, net of unrealized
gains (losses).................................. 1,333 -- 1,333 -- 1,333
Assets held in trading accounts................... 66 -- 66 -- 66
Interest bearing balances due from banks.......... 291 -- 291 -- 291
------- ------- ------- ------- -------
TOTAL INTEREST INCOME......................... 61,367 26,585 87,952 (4,406) 83,546
------- ------- ------- ------- -------
INTEREST EXPENSE:
Interest bearing transaction accounts and savings
deposits........................................ 7,106 1,443 8,549 -- 8,549
Time deposits..................................... 18,663 12,505 31,168 (1,876)<F2c> 29,292
Federal funds purchased and securities sold under
agreements to repurchase........................ 1,406 94 1,500 -- 1,500
Short-term debt................................... 129 -- 129 -- 129
Long-term debt.................................... 258 856 1,114 3,003 <F2b> 4,117
------- ------- ------- ------- -------
TOTAL INTEREST EXPENSE........................ 27,562 14,898 42,460 1,127 43,587
------- ------- ------- ------- -------
NET INTEREST INCOME............................... 33,805 11,687 45,492 (5,533) 39,959
Provision for loan losses......................... 2,341 2,369 4,710 -- 4,710
------- ------- ------- ------- -------
NET INTEREST INCOME AFTER PROVISION FOR LOAN
LOSSES.......................................... 31,464 9,318 40,782 (5,533) 35,249
------- ------- ------- ------- -------
NON-INTEREST INCOME:
Trust department income........................... 2,166 94 2,260 -- 2,260
Service charges on deposit accounts............... 3,222 1,683 4,905 (220)<F2c> 4,685
Other service charges and fees.................... 1,069 352 1,421 -- 1,421
Income on sale of mortgage loans, net of
commissions..................................... 287 -- 287 -- 287
Income on investment banking, net of
commissions..................................... 758 -- 758 -- 758
Credit card fees.................................. 9,601 -- 9,601 -- 9,601
Loan servicing fees............................... 7,095 -- 7,095 -- 7,095
Other income...................................... 648 15 663 -- 663
Investment securities gains (losses), net......... 270 (6) 264 -- 264
------- ------- ------- ------- -------
TOTAL NON-INTEREST INCOME..................... 25,116 2,138 27,254 (220) 27,034
------- ------- ------- ------- -------
NON-INTEREST EXPENSE:
Salaries and employee benefits.................... 21,774 3,470 25,244 (414)<F2c> 24,830
Occupancy expense, net............................ 2,310 1,135 3,445 (77)<F2c> 3,368
Furniture and equipment expense................... 2,416 -- 2,416 -- 2,416
Loss on foreclosed assets......................... 1,135 -- 1,135 -- 1,135
Other expense..................................... 14,321 2,094 16,415 1,724 <F2b> 18,139
------- ------- ------- ------- -------
TOTAL NON-INTEREST EXPENSE.................... 41,956 6,699 48,655 1,233 49,888
------- ------- ------- ------- -------
INCOME BEFORE INCOME TAXES........................ 14,624 4,757 19,381 (6,986) 12,395
Provision for income taxes........................ 4,323 1,558 5,881 (2,226)<F2b><F2c> 3,655
------- ------- ------- ------- -------
NET INCOME........................................ $10,301 $ 3,199 $13,500 $(4,760) $ 8,740
======= ======= ======= ======= =======
EARNINGS PER AVERAGE COMMON SHARE................. $ 1.81 $ 1.53
======= =======
DIVIDENDS PER COMMON SHARE........................ $ 0.48 $ 0.48
======= =======
RATIO OF EARNINGS TO FIXED CHARGES:
Excluding interest on deposits.................... 1.28x
=======
Including interest on deposits.................... 3.01x
=======
</TABLE>
21
<PAGE> 26
NOTES TO PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
On March 21, 1997, the Company entered into two separate definitive
agreements to acquire all of the issued and outstanding stock of FBAR and FBAS.
Two branches and certain loan participations of FBAR will not be acquired by
the Company. The acquisitions will be consummated through the payment of
$53,000,000 in cash. The transaction will be financed with $35,000,000 in
long-term debt, available cash and liquidation of investments and federal funds
sold. See "Summary Information--The Company--Pending Acquisitions" and "Use
of Proceeds."
1. The pro forma consolidated balance sheet of the Company and FBAR/FBAS as
of March 31, 1997 has been prepared in accordance with the following
assumptions:
a. The Pending Acquisitions occur on March 31, 1997.
b. The Pending Acquisitions are accounted for utilizing the purchase
method of accounting and, accordingly, the net assets of FBAR/FBAS are
adjusted to their fair value. The components of the transaction assumed in
the consolidated balance sheet are outlined as follows:
<TABLE>
<CAPTION>
($ IN THOUSANDS)
---------------------
<S> <C> <C>
Cash........................................................ $53,000
Transaction costs........................................... 1,000
Less: Historical book value of FBAR/FBAS.................... $27,119
Adjustment to reflect fair value of
FBAR/FBAS assets:
Acquiree intangibles written off................... (1,932)
Reduction of investments to fair value.............. (1,019)
Compensation liability due to change in control..... (680) (23,488)
------- -------
Excess of cost over fair value of net assets acquired....... $30,512
=======
</TABLE>
c. The Company will incur $35,000,000 in long-term debt, comprised of
the proceeds of the Preferred Securities offered hereby and additional
long-term debt to be incurred by the Company, with interest rates ranging
from 7.75% to 9.50% per annum. See "Use of Proceeds" and
"Capitalization." The debt issue costs are estimated to be $850,000.
Except for items specifically adjusted above, Company management
believes that historical book value of the net assets of FBAR/FBAS
approximates fair value.
d. Adjustments to reduce FBAR assets and liabilities for branch
operations and loan participations not acquired by the Company are as
follows:
<TABLE>
<S> <C>
Decrease in federal funds sold.......... $(10,107)
Decrease in loans....................... (32,030)
Decrease in allowance for loan losses... 188
Decrease in premises and equipment...... (661)
Decrease in deposits
Non-interest bearing................ 2
Interest bearing.................... 42,608
--------
$ --
========
</TABLE>
2. The pro forma consolidated income statements have been prepared in
accordance with the following assumptions:
a. The Pending Acquisitions occur at January 1, 1996 and are accounted
for utilizing the purchase method of accounting. Accordingly, the
operations of FBAR/FBAS are included in the pro forma results of operations
from January 1, 1996 forward.
22
<PAGE> 27
b. Adjustments to reflect amortization of the purchase accounting
adjustments and the decrease in interest income on $20,530,000 in cash,
investment securities and federal funds sold utilized in the acquisition
and interest expense on $35,000,000 in long-term debt and the related
income tax effects in the pro forma condensed income statements as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED
MARCH 31, 1997 DECEMBER 31, 1996
------------------ -----------------
<S> <C> <C>
Decrease in interest income for decrease in
federal funds sold.............................. $ (203) $ (813)
Decrease in interest income for decrease in cash
and securities.................................. (75) (298)
Increase in interest income for accretion of
decrease in debt securities to fair value....... 12 48
Increase in interest on borrowed funds............ (744) (2,975)
Amortization of debt issue costs.................. (7) (28)
Increase in other expenses for amortization of
excess of cost over fair value of net assets
acquired........................................ (431) (1,724)
Decrease in applicable income taxes............... 465 1,861
------- -------
Reduction in net income....................... $ (983) $(3,929)
======= =======
</TABLE>
The assumed interest rate on cash and securities in 5.25%
The decrease in the investment in debt securities is amortized using a
method that approximates the interest method over the estimated life of the
portfolio of six years.
The assumed interest rate on the long-term debt is 7.75% on $20,000,000
and 9.50% on $15,000,000 and the estimated issuance costs of $850,000 is
amortized over the term of the related debt.
The excess of cost over fair value of net assets acquired is amortized
using the straight-line method over fifteen years. As a part of the
definitive agreements for the Pending Acquisitions, an election will be made
under Internal Revenue Code Section 338(h)(10). As a result, the
amortization will be deductible for income tax purposes.
c. Adjustments to reduce FBAR results of operations for branch
operations and loan participations not acquired by the Company are as
follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED
MARCH 31, 1997 DECEMBER 31, 1996
------------------ -----------------
<S> <C> <C>
Interest--loans................................... $ (725) $(2,847)
Interest--federal funds sold...................... (123) (496)
Service charge income............................. (55) (220)
Interest expense--deposits........................ 476 1,876
Salaries and employee benefits.................... 88 414
Occupancy expenses................................ 18 77
Applicable income taxes........................... 98 365
------ -------
Decrease in net income........................ $ (223) $ (831)
====== =======
</TABLE>
23
<PAGE> 28
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the Trust
Agreement. The Trust Agreement will be qualified as an indenture under the
Trust Indenture Act. The Property Trustee, State Street Bank and Trust Company,
will act as indenture trustee for the Preferred Securities under the Trust
Agreement for purposes of complying with the provisions of the Trust Indenture
Act. The terms of the Preferred Securities will include those stated in the
Trust Agreement and those made part of the Trust Agreement by the Trust
Indenture Act. The following summary of the material terms and provisions of
the Preferred Securities and the Trust Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
the Trust Agreement, the Trust Act, and the Trust Indenture Act. Wherever
particular defined terms of the Trust Agreement are referred to, but not
defined, herein such defined terms are incorporated herein by reference. The
form of the Trust Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part.
GENERAL
Pursuant to the terms of the Trust Agreement, the Trustees, on behalf of
Simmons Trust, will issue the Trust Securities. All of the Common Securities
will be owned by the Company. The Preferred Securities will represent preferred
undivided beneficial interests in the assets of Simmons Trust and the holders
thereof will be entitled to a preference in certain circumstances with respect
to Distributions and amounts payable on redemption or liquidation over the
Common Securities, as well as other benefits as described in the Trust
Agreement. The Trust Agreement does not permit the issuance by Simmons Trust of
any securities other than the Trust Securities or the incurrence of any
indebtedness by Simmons Trust.
The Preferred Securities will rank pari passu, and payments will be made
thereon pro rata, with the Common Securities, except as described under
"--Subordination of Common Securities." Legal title to the Subordinated
Debentures will be held by the Property Trustee in trust for the benefit of the
holders of the Trust Securities. The Guarantee executed by the Company for the
benefit of the holders of the Preferred Securities will be a guarantee on a
subordinated basis with respect to the Preferred Securities, but will not
guarantee payment of Distributions or amounts payable on redemption or
liquidation of such Preferred Securities when Simmons Trust does not have funds
on hand available to make such payments. State Street Bank and Trust Company,
as Guarantee Trustee, will hold the Guarantee for the benefit of the holders of
the Preferred Securities. See "Description of the Guarantee."
DISTRIBUTIONS
PAYMENT OF DISTRIBUTIONS. Distributions on each Preferred Security will be
payable at the annual rate of % of the stated Liquidation Amount of $25,
payable quarterly in arrears on March 31, June 30, September 30 and December 31
of each year, to the holders of the Preferred Securities on the relevant record
dates (each date on which Distributions are payable in accordance with the
foregoing, a "Distribution Date"). The record date will be the 15th day of
the month in which the relevant Distribution Date occurs. Distributions will
accumulate from the date of original issuance. The first Distribution Date for
the Preferred Securities will be September 30, 1997. The amount of
Distributions payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which Distributions
are payable on the Preferred Securities is not a Business Day, then payment of
the Distributions payable on such date will be made on the next succeeding day
that is a Business Day (and without any additional Distributions, interest or
other payment in respect of any such delay) with the same force and effect as
if made on the date such payment was originally payable. "Business Day" means
any day other than a Saturday or a Sunday, a day on which banking institutions
in The City of New York are authorized or required by law or executive order to
remain closed or a day on which the corporate trust office of the Property
Trustee or the Debenture Trustee is closed for business.
EXTENSION PERIOD. The Company has the right under the Indenture, so long as
no Debenture Event of Default has occurred and is continuing, to defer the
payment of interest on the Subordinated Debentures at any time, or from time to
time (each, an "Extended Interest Payment Period"), which, if exercised,
would defer quarterly Distributions on the Preferred Securities during any such
Extended Interest Payment Period. Distributions to which holders of the
Preferred Securities are entitled will accumulate additional Distributions
thereon at the rate per annum of % thereof, compounded quarterly from the
relevant Distribution Date. "Distributions," as used herein, includes any
such additional Distributions. The right to defer the payment of interest on
the Subordinated Debentures is limited,
24
<PAGE> 29
however, to a period, in each instance, not exceeding 20 consecutive quarters
and no Extended Interest Payment Period may extend beyond the Stated Maturity
of the Subordinated Debentures. During any such Extended Interest Payment
Period, the Company may not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock (other than (a) dividends or distributions
in common stock of the Company, and declaration of a non-cash dividend in
connection with the implementation of a shareholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, and (b) purchases of common
stock of the Company related to the rights under any of the Company's benefit
plans for its directors, officers or employees), (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank pari passu with or junior in interest
to the Subordinated Debentures or make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to the
Subordinated Debentures (other than payments under the Guarantee), or (iii)
redeem, purchase or acquire less than all of the Subordinated Debentures or any
of the Preferred Securities. Prior to the termination of any such Extended
Interest Payment Period, the Company may further defer the payment of interest;
provided that such Extended Interest Payment Period may not exceed 20
consecutive quarters or extend beyond the Stated Maturity of the Subordinated
Debentures. Upon the termination of any such Extended Interest Payment Period
and the payment of all amounts then due, the Company may elect to begin a new
Extended Interest Payment Period, subject to the above requirements. Subject to
the foregoing, there is no limitation on the number of times that the Company
may elect to begin an Extended Interest Payment Period.
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures.
SOURCE OF DISTRIBUTIONS. The funds of Simmons Trust available for
distribution to holders of its Preferred Securities will be limited to payments
under the Subordinated Debentures in which Simmons Trust will invest the
proceeds from the issuance and sale of its Trust Securities. See "Description
of the Subordinated Debentures." Distributions will be paid through the
Property Trustee who will hold amounts received in respect of the Subordinated
Debentures in the Property Account for the benefit of the holders of the Trust
Securities. If the Company does not make interest payments on the Subordinated
Debentures, the Property Trustee will not have funds available to pay
Distributions on the Preferred Securities. The payment of Distributions (if and
to the extent Simmons Trust has funds legally available for the payment of such
Distributions and cash sufficient to make such payments) is guaranteed by the
Company. See "Description of the Guarantee." Distributions on the Preferred
Securities will be payable to the holders thereof as they appear on the
register of holders of the Preferred Securities on the relevant record dates,
which will be the 15th day of the month in which the relevant Distribution Date
occurs.
REDEMPTION
GENERAL. The Subordinated Debentures will mature on June 30, 2027. The
Company will have the right to redeem the Subordinated Debentures (i) on or
after June 30, 2002, in whole at any time or in part from time to time, or (ii)
at any time, in whole (but not in part), within 180 days following the
occurrence of a Tax Event, a Capital Treatment Event or an Investment Company
Event, in each case subject to receipt of prior approval by the Federal Reserve
if then required under applicable capital guidelines or policies of the Federal
Reserve. The Company will not have the right to purchase the Subordinated
Debentures, in whole or in part, from the Trust until after June 30, 2002. See
"Description of the Subordinated Debentures--General."
MANDATORY REDEMPTION. Upon the repayment or redemption, in whole or in part,
of any Subordinated Debentures, whether at Stated Maturity or upon earlier
redemption as provided in the Indenture, the proceeds from such repayment or
redemption will be applied by the Property Trustee to redeem a Like Amount (as
defined herein) of the Trust Securities, upon not less than 30 nor more than 60
days notice, at a redemption price (the "Redemption Price") equal to the
aggregate Liquidation Amount of such Trust Securities plus accumulated but
unpaid Distributions thereon to the date of redemption (the "Redemption
Date"). See "Description of the Subordinated Debentures--Redemption." If
less than all of the Subordinated Debentures are to be repaid or redeemed on a
Redemption Date, then the proceeds from such repayment or redemption will be
allocated to the redemption of the Trust Securities pro rata.
25
<PAGE> 30
DISTRIBUTION OF SUBORDINATED DEBENTURES. Subject to the Company having
received prior approval of the Federal Reserve if so required under applicable
capital guidelines or policies of the Federal Reserve, the Company will have
the right at any time to dissolve, wind-up or terminate Simmons Trust and,
after satisfaction of the liabilities of creditors of Simmons Trust as provided
by applicable law, cause the Subordinated Debentures to be distributed to the
holders of Trust Securities in liquidation of Simmons Trust. See
"--Liquidation Distribution Upon Termination."
TAX EVENT REDEMPTION, CAPITAL TREATMENT EVENT REDEMPTION OR INVESTMENT
COMPANY EVENT REDEMPTION. If a Tax Event, a Capital Treatment Event or an
Investment Company Event in respect of the Trust Securities occurs and is
continuing, the Company has the right to redeem the Subordinated Debentures in
whole (but not in part) and thereby cause a mandatory redemption of such Trust
Securities in whole (but not in part) at the Redemption Price within 180 days
following the occurrence of such Tax Event, a Capital Treatment Event or
Investment Company Event. In the event a Tax Event, a Capital Treatment Event
or an Investment Company Event has occurred with respect to the Trust
Securities and the Company does not elect to redeem the Subordinated Debentures
and thereby cause a mandatory redemption of such Trust Securities or to
liquidate Simmons Trust and cause the Subordinated Debentures to be distributed
to holders of such Trust Securities in liquidation of Simmons Trust as
described below under "--Liquidation Distribution Upon Termination," such
Preferred Securities will remain outstanding and Additional Payment (as defined
herein) may be payable on the Subordinated Debentures.
"Additional Payment" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by Simmons Trust on
the outstanding Trust Securities will not be reduced as a result of any
additional taxes, duties and other governmental charges to which Simmons Trust
has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Subordinated Debentures to be contemporaneously redeemed in
accordance with the Indenture, which will be used to pay the Redemption Price
of such Trust Securities, and (ii) with respect to a distribution of
Subordinated Debentures to holders of Trust Securities in connection with a
dissolution or liquidation of Simmons Trust, Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
holder to whom such Subordinated Debentures are distributed. Each Subordinated
Debenture distributed pursuant to clause (ii) above will carry with its
accumulated interest in an amount equal to the accumulated and unpaid interest
then due on such Subordinated Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
After the liquidation date fixed for any distribution of Subordinated
Debentures for Preferred Securities (i) such Preferred Securities will no
longer be deemed to be outstanding and (ii) any certificates representing
Preferred Securities will be deemed to represent the Subordinated Debentures
having a principal amount equal to the Liquidation Amount of such Preferred
Securities, and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on the Preferred Securities, until such
certificates are presented to the Administrative Trustees or their agent for
transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution and liquidation of Simmons Trust were
to occur. The Preferred Securities that an investor may purchase, or the
Subordinated Debentures that an investor may receive on dissolution and
liquidation of Simmons Trust, may, therefore, trade at a discount to the price
that the investor paid to purchase the Preferred Securities offered hereby.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date will be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Subordinated Debentures. Redemptions of the Preferred
Securities will be made and the Redemption Price will be payable on each
Redemption Date only to the extent that Simmons Trust has funds on hand
available for the payment of such Redemption Price. See "--Subordination of
Common Securities."
If Simmons Trust gives a notice of redemption in respect of its Preferred
Securities, then, by 12:00 noon, eastern standard time, on the Redemption Date,
to the extent funds are available, the Property Trustee will deposit
26
<PAGE> 31
irrevocably with the paying agent for the Preferred Securities funds sufficient
to pay the aggregate Redemption Price and will give the paying agent for the
Preferred Securities irrevocable instructions and authority to pay the
Redemption Price to the holders thereof upon surrender of their certificates
evidencing such Preferred Securities. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Preferred
Securities called for redemption will be payable to the holders of such
Preferred Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption will have been given and funds deposited as
required, then upon the date of such deposit, all rights of the holders of such
Preferred Securities so called for redemption will cease, except the right of
the holders of such Preferred Securities to receive the Redemption Price, but
without interest on such Redemption Price, and such Preferred Securities will
cease to be outstanding. In the event that any date fixed for redemption of
Preferred Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any additional Distribution, interest or other
payment in respect of any such delay) with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
Preferred Securities called for redemption is improperly withheld or refused
and not paid either by Simmons Trust, or by the Company pursuant to the
Guarantee, Distributions on such Preferred Securities will continue to accrue
at the then applicable rate, from the Redemption Date originally established by
Simmons Trust for such Preferred Securities to the date such Redemption Price
is actually paid, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price. See
"Description of the Guarantee."
Subject to applicable law (including, without limitation, United States
federal securities law) and, further provided, that the Company has not and is
not continuing its right to defer interest payments, the Company or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Subordinated Debentures to holders of Preferred Securities will
be made to the applicable recordholders thereof as they appear on the register
for the Preferred Securities on the relevant record date, which date will be
the date 15 days prior to the Redemption Date or liquidation date, as
applicable.
If less than all of the Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of such Trust Securities to be
redeemed will be allocated pro rata to the Trust Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed will be selected by the Property Trustee from the
outstanding Preferred Securities not previously called for redemption, by such
method as the Property Trustee deems fair and appropriate and which may provide
for the selection for redemption of portions (equal to $25 or an integral
multiple of $25 in excess thereof) of the Liquidation Amount of Preferred
Securities of a denomination larger than $25. The Property Trustee will
promptly notify the registrar for the Preferred Securities in writing of the
Preferred Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of the Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities will relate to the portion of the aggregate Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address. Unless the Company defaults in payment of
the redemption price on the Subordinated Debentures, on and after the
Redemption Date interest will cease to accrue on such Subordinated Debentures
or portions thereof (and Distributions will cease to accrue on the related
Preferred Securities or portions thereof) called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Preferred
Securities and Common Securities, as applicable, will be made pro rata based on
the Liquidation Amount of the Preferred Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default has occurred and is continuing, no payment of any
Distribution on, or Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition of
such Common Securities, will be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the
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outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full
amount of such Redemption Price on all of the outstanding Preferred Securities
then called for redemption, will have been made or provided for, and all funds
available to the Property Trustee will first be applied to the payment in full
in cash of all Distributions on, or Redemption Price of, the Preferred
Securities then due and payable.
In the case of any Event of Default resulting from a Debenture Event of
Default, the Company as holder of the Common Securities will be deemed to have
waived any right to act with respect to any such Event of Default under the
Trust Agreement until the effect of all such Events of Default with respect to
the Preferred Securities have been cured, waived or otherwise eliminated. Until
any such Events of Default under the Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee will act solely on behalf of the holders of the Preferred
Securities and not on behalf of the Company, as holder of the Common
Securities, and only the holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
The Company will have the right at any time to dissolve, wind-up or
terminate Simmons Trust and cause the Subordinated Debentures to be distributed
to the holders of the Preferred Securities. Such right is subject, however, to
the Company having received prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve.
Pursuant to the Trust Agreement, Simmons Trust will automatically terminate
upon expiration of its term and will terminate earlier on the first to occur of
(i) certain events of bankruptcy, dissolution or liquidation of the Company,
(ii) the distribution of a Like Amount of the Subordinated Debentures to the
holders of its Trust Securities, if the Company, as depositor, has given
written direction to the Property Trustee to terminate Simmons Trust (which
direction is optional and wholly within the discretion of the Company, as
depositor), (iii) redemption of all of the Preferred Securities as described
under "--Redemption--Mandatory Redemption," and (iv) the entry of an order
for the dissolution of Simmons Trust by a court of competent jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv) of
the preceding paragraph, Simmons Trust will be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of Simmons Trust as provided by
applicable law, to the holders of such Trust Securities a Like Amount of the
Subordinated Debentures, unless such distribution is determined by the Property
Trustee not to be practical, in which event such holders will be entitled to
receive out of the assets of Simmons Trust available for distribution to
holders, after satisfaction of liabilities to creditors of Simmons Trust as
provided by applicable law, an amount equal to, in the case of holders of
Preferred Securities, the aggregate of the Liquidation Amount plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid
only in part because Simmons Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by Simmons Trust on the Preferred Securities will be paid on a pro rata basis.
The Company, as the holder of the Common Securities, will be entitled to
receive distributions upon any such liquidation pro rata with the holders of
the Preferred Securities, except that, if a Debenture Event of Default has
occurred and is continuing, the Preferred Securities will have a priority over
the Common Securities. See "--Subordination of Common Securities."
Under current United States federal income tax law and interpretations and
assuming, as expected, that Simmons Trust is treated as a grantor trust, a
distribution of the Subordinated Debentures should not be a taxable event to
holders of the Preferred Securities. Should there be a change in law, a change
in legal interpretation, a Tax Event or other circumstances, however, the
distribution could be a taxable event to holders of the Preferred Securities.
See "Certain Federal Income Tax Consequences--Receipt of Subordinated
Debentures or Cash Upon Liquidation of Simmons Trust." If the Company elects
neither to redeem the Subordinated Debentures prior to maturity nor to
liquidate Simmons Trust and distribute the Subordinated Debentures to holders
of the Preferred Securities, the Preferred Securities will remain outstanding
until the repayment of the Subordinated Debentures.
If the Company elects to liquidate Simmons Trust and thereby causes the
Subordinated Debentures to be distributed to holders of the Preferred
Securities in liquidation of Simmons Trust, the Company will continue to have
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the right to shorten or extend the maturity of such Subordinated Debentures,
subject to certain conditions. See "Description of the Subordinated
Debentures--General."
LIQUIDATION VALUE
The amount of the Liquidation Distribution payable on the Preferred
Securities in the event of any liquidation of Simmons Trust is $25 per
Preferred Security plus accrued and unpaid Distributions thereon to the date of
payment, which may be in the form of a distribution of such amount in
Subordinated Debentures, subject to certain exceptions. See "--Liquidation
Distribution Upon Termination."
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an event of default under the
Trust Agreement (an "Event of Default") with respect to the Preferred
Securities (whatever the reason for such Event of Default and whether voluntary
or involuntary or effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of a Debenture Event of Default (see "Description
of the Subordinated Debentures--Debenture Events of Default"); or
(ii) default by Simmons Trust in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a period
of 30 days; or
(iii) default by Simmons Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in the Trust Agreement (other than
a covenant or warranty a default in the performance of which or the breach
of which is dealt with in clauses (ii) or (iii) above), and continuation of
such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Trustee(s) by the holders of at
least 25% in aggregate Liquidation Amount of the outstanding Preferred
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under the Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to appoint a
successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee will transmit
notice of such Event of Default to the holders of the Preferred Securities, the
Administrative Trustees and the Company, as depositor, unless such Event of
Default has been cured or waived. The Company, as depositor, and the
Administrative Trustees are required to file annually with the Property Trustee
a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities will have a preference over the Common Securities upon
termination of Simmons Trust. See "--Liquidation Distribution Upon
Termination." The existence of an Event of Default does not entitle the
holders of Preferred Securities to accelerate the maturity thereof.
REMOVAL OF SIMMONS TRUST TRUSTEES
Unless a Debenture Event of Default has occurred and is continuing, any
Trustee may be removed at any time by the holder of the Common Securities. If a
Debenture Event of Default has occurred and is continuing, the Property Trustee
and the Delaware Trustee may be removed at such time by the holders of a
majority in Liquidation Amount of the outstanding Preferred Securities. In no
event, however, will the holders of the Preferred Securities have the right to
vote to appoint, remove or replace the Administrative Trustees, which voting
rights are vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of a Trustee and no appointment of a
successor trustee will be effective until the acceptance of appointment by the
successor trustee in accordance with the provisions of the Trust Agreement.
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CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default has occurred and is continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust Property (as defined
in the Trust Agreement) may at the time be located, the Company, as the holder
of the Common Securities, will have power to appoint one or more Persons (as
defined in the Trust Agreement) either to act as a co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to act as
separate trustee of any such Trust Property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such Person or
Persons in such capacity any property, title, right or power deemed necessary
or desirable, subject to the provisions of the Trust Agreement. In case a
Debenture Event of Default has occurred and is continuing, the Property Trustee
alone will have power to make such appointment.
MERGER OR CONSOLIDATION OF TRUSTEES
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee is a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Trustee, will be the successor of such Trustee under the Trust Agreement,
provided such Person is otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF SIMMONS TRUST
Simmons Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described below. Simmons
Trust may, at the request of the Company, with the consent of the
Administrative Trustees and without the consent of the holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, that (i) such successor entity either
(a) expressly assumes all of the obligations of Simmons Trust with respect to
the Preferred Securities, or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as
the Preferred Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee in its capacity as the holder of the
Subordinated Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed (including, if applicable, The Nasdaq Stock Market's
National Market), if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect, (v) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Company has received an opinion from independent counsel to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither Simmons Trust nor such successor entity will be required to register as
an "investment company" under the Investment Company Act, and (vi) the
Company owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding
the foregoing, Simmons Trust will not, except with the consent of holders of
100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause Simmons Trust or the successor entity
to be classified as other than a grantor trust for United States federal income
tax purposes.
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VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided below and under "Description of the
Guarantee--Amendments and Assignment" and as otherwise required by the Trust
Act and the Trust Agreement, the holders of the Preferred Securities will have
no voting rights.
The Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Preferred Securities (i) with respect to acceptance of
appointment by a successor trustee, (ii) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent with
any other provision, or to make any other provisions with respect to matters or
questions arising under the Trust Agreement (provided such amendment is not
inconsistent with the other provisions of the Trust Agreement), or (iii) to
modify, eliminate or add to any provisions of the Trust Agreement to such
extent as is necessary to ensure that Simmons Trust will be classified for
United States federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that Simmons Trust will not
be required to register as an "investment company" under the Investment
Company Act; provided, however, that in the case of clause (ii), such action
may not adversely affect in any material respect the interests of any holder of
Trust Securities, and any amendments of such Trust Agreement will become
effective when notice thereof is given to the holders of Trust Securities. The
Trust Agreement may be amended by the Trustees and the Company with (i) the
consent of holders representing not less than a majority in the aggregate
Liquidation Amount of the outstanding Trust Securities, and (ii) receipt by the
Trustees of an opinion of counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the status of Simmons Trust as a grantor trust for United
States federal income tax purposes or its exemption from status as an
"investment company" under the Investment Company Act. Notwithstanding
anything in this paragraph to the contrary, without the consent of each holder
of Trust Securities, the Trust Agreement may not be amended to (a) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date, or (b) restrict the right of a
holder of Trust Securities to institute suit for the enforcement of any such
payment on or after such date.
The Trustees will not, so long as any Subordinated Debentures are held by
the Property Trustee, (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Property Trustee with respect to the
Subordinated Debentures, (ii) waive any past default that is waivable under the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Subordinated Debentures will be due and payable, or (iv)
consent to any amendment, modification or termination of the Indenture or the
Subordinated Debentures, where such consent is required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Preferred Securities; provided, however,
that where a consent under the Indenture requires the consent of each holder of
Subordinated Debentures affected thereby, no such consent will be given by the
Property Trustee without the prior consent of each holder of the Preferred
Securities. The Trustees may not revoke any action previously authorized or
approved by a vote of the holders of the Preferred Securities except by
subsequent vote of the holders of the Preferred Securities. The Property
Trustee will notify each holder of Preferred Securities of any notice of
default with respect to the Subordinated Debentures. In addition to obtaining
the foregoing approvals of the holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Trustees must obtain an opinion of
counsel experienced in such matters to the effect that Simmons Trust will not
be classified as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be taken,
to be given to each holder of record of Preferred Securities in the manner set
forth in the Trust Agreement.
No vote or consent of the holders of Preferred Securities will be required
for Simmons Trust to redeem and cancel its Preferred Securities in accordance
with the Trust Agreement.
Notwithstanding the fact that holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Company, the Trustees or any
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affiliate of the Company or any Trustee, will, for purposes of such vote or
consent, be treated as if they were not outstanding.
PAYMENT AND PAYING AGENT
Payments in respect of the Preferred Securities will be made by check
mailed to the address of the holder entitled thereto as such address will
appear on the register of holders of the Preferred Securities. The paying agent
for the Preferred Securities will initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Company. In the event that the Property Trustee
no longer is the paying agent for the Preferred Securities, the Administrative
Trustees will appoint a successor (which must be a bank or trust company
acceptable to the Administrative Trustees and the Company) to act as paying
agent.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as the registrar and the transfer agent for
the Preferred Securities. Registration of transfers of Preferred Securities
will be effected without charge by or on behalf of Simmons Trust, but upon
payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. Simmons Trust will not be required to
register or cause to be registered the transfer of Preferred Securities after
such Preferred Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than upon the occurrence and during the
continuance of an Event of Default, undertakes to perform only such duties as
are specifically set forth in the Trust Agreement and, after such Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the Trust Agreement at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
the Trust Agreement or is unsure of the application of any provision of the
Trust Agreement, and the matter is not one on which holders of Preferred
Securities are entitled under the Trust Agreement to vote, then the Property
Trustee will take such action as is directed by the Company and if not so
directed, will take such action as it deems advisable and in the best interests
of the holders of the Trust Securities and will have no liability except for
its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate Simmons Trust in such a way that Simmons Trust will
not be deemed to be an "investment company" required to be registered under
the Investment Company Act or classified as an association taxable as a
corporation for United States federal income tax purposes and so that the
Subordinated Debentures will be treated as indebtedness of the Company for
United States federal income tax purposes. The Company and the Administrative
Trustees are authorized, in this connection, to take any action, not
inconsistent with applicable law, the certificate of trust of Simmons Trust or
the Trust Agreement, that the Company and the Administrative Trustees determine
in their discretion to be necessary or desirable for such purposes.
Holders of the Preferred Securities have no preemptive or similar rights.
The Trust Agreement and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
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DESCRIPTION OF THE SUBORDINATED DEBENTURES
Concurrently with the issuance of the Preferred Securities, Simmons Trust
will invest the proceeds thereof, together with the consideration paid by the
Company for the Common Securities, in the Subordinated Debentures issued by the
Company. The Subordinated Debentures will be issued as unsecured debt under the
Indenture, to be dated as of , 1997 (the "Indenture"),
between the Company and State Street Bank and Trust Company as trustee (the
"Debenture Trustee"). The Indenture will be qualified as an indenture under
the Trust Indenture Act. The following summary of the material terms and
provisions of the Subordinated Debentures and the Indenture does not purport to
be complete and is subject to, and is qualified in its entirety by reference
to, the Indenture and to the Trust Indenture Act. Wherever particular defined
terms of the Indenture are referred to, but not defined herein, such defined
terms are incorporated herein by reference. The form of the Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus
forms a part.
GENERAL
The Subordinated Debentures will be limited in aggregate principal amount
to approximately $15,463,925 (or up to $17,783,525 if the option described
under the heading "Underwriting" is exercised by the Underwriter), such
amount being the sum of the aggregate stated Liquidation Amount of the Trust
Securities. The Subordinated Debentures will bear interest at the annual rate
of % of the principal amount thereof, payable quarterly in arrears on
March 31, June 30, September 30, and December 31 of each year (each, an
"Interest Payment Date") beginning September 30, 1997, to the Person (as
defined in the Indenture) in whose name each Subordinated Debenture is
registered, subject to certain exceptions, at the close of business on the
fifteenth day of the last month of the calendar quarter. It is anticipated
that, until the liquidation, if any, of Simmons Trust, the Subordinated
Debentures will be held in the name of the Property Trustee in trust for the
benefit of the holders of the Preferred Securities. The amount of interest
payable for any period will be computed on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which interest is payable
on the Subordinated Debentures is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) with the same force and effect as if made on the date such payment was
originally due and payable. Accrued interest that is not paid on the applicable
Interest Payment Date will bear additional interest on the amount thereof (to
the extent permitted by law) at the rate per annum of % thereof,
compounded quarterly. The term "interest," as used herein, includes quarterly
interest payments, interest on quarterly interest payments not paid on the
applicable Interest Payment Date and Additional Payment, as applicable.
The Subordinated Debentures will mature on June 30, 2027 (such date, as it
may be shortened or extended as hereinafter described, the "Stated
Maturity"). Such date may be shortened at any time by the Company to any date
not earlier than June 30, 2002, subject to the Company having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve. Such date may also be extended
at any time at the election of the Company but in no event to a date later than
June 30, 2036, provided that at the time such election is made and at the time
of extension (i) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (ii) the Company is not in default in the payment of any interest
or principal on the Subordinated Debentures, and (iii) Simmons Trust is not in
arrears on payments of Distributions on the Preferred Securities and no
deferred Distributions are accumulated. In the event that the Company elects to
shorten or extend the Stated Maturity of the Subordinated Debentures, it will
give notice thereof to the Debenture Trustee, Simmons Trust and to the holders
of the Subordinated Debentures no more than 180 days and no less than 90 days
prior to the effectiveness thereof. The Company will not have the right to
purchase the Subordinated Debentures, in whole or in part, from Simmons Trust
until after June 30, 2002, except that if a Tax Event, a Capital Treatment
Event or an Investment Company Event has occurred and is continuing.
The Subordinated Debentures will be unsecured and will rank junior and be
subordinate in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company. Because the Company is a holding
company, the right of the Company to participate in any distribution of assets
of any Bank, upon any such Bank's liquidation or reorganization or otherwise
(and thus the ability of holders of the Subordinated Debentures to benefit
indirectly from such distribution), is subject to the prior claim of creditors
of such Bank, except to the extent that the Company may itself be recognized as
a creditor of such Bank. The Subordinated Debentures will, therefore, be
effectively subordinated to all existing and future liabilities of the Banks,
and holders of Subordinated Debentures
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should look only to the assets of the Company for payments on the Subordinated
Debentures. The Indenture does not limit the incurrence or issuance of other
secured or unsecured debt of the Company, including Senior Debt, Subordinated
Debt and Additional Senior Obligations, whether under the Indenture or any
existing indenture or other indenture that the Company may enter into in the
future or otherwise. See "--Subordination."
The Indenture does not contain provisions that afford holders of the
Subordinated Debentures protection in the event of a highly leveraged
transaction or other similar transaction involving the Company that may
adversely affect such holders.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Company has the right under the Indenture at any time during the term
of the Subordinated Debentures, so long as no Debenture Event of Default has
occurred and is continuing, to defer the payment of interest at any time, or
from time to time (each, an "Extended Interest Payment Period"). The right to
defer the payment of interest on the Subordinated Debentures is limited,
however, to a period, in each instance, not exceeding 20 consecutive quarters
and no Extended Interest Payment Period may extend beyond the Stated Maturity
of the Subordinated Debentures. At the end of each Extended Interest Payment
Period, the Company must pay all interest then accrued and unpaid (together
with interest thereon at the annual rate of %, compounded quarterly, to
the extent permitted by applicable law). During an Extended Interest Payment
Period, interest will continue to accrue and holders of Subordinated Debentures
(or the holders of Preferred Securities if such securities are then
outstanding) will be required to accrue and recognize income for United States
federal income tax purposes. See "Certain Federal Income Tax
Consequences--Potential Extension of Interest Payment Period and Original Issue
Discount."
During any such Extended Interest Payment Period, the Company may not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock (other than (a) dividends or distributions in common stock of the
Company, any declaration of a non-cash dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, and (b) purchases of common stock of the Company related to
the rights under any of the Company's benefit plans for its directors, officers
or employees), (ii) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that rank
pari passu with or junior in interest to the Subordinated Debentures or make
any guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks pari passu
or junior in interest to the Subordinated Debentures (other than payments under
the Guarantee), or (iii) redeem, purchase or acquire less than all of the
Subordinated Debentures or any of the Preferred Securities. Prior to the
termination of any such Extended Interest Payment Period, the Company may
further defer the payment of interest; provided that no Extended Interest
Payment Period may exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Subordinated Debentures. Upon the termination of any such
Extended Interest Payment Period and the payment of all amounts then due on any
Interest Payment Date, the Company may elect to begin a new Extended Interest
Payment Period subject to the above requirements. No interest will be due and
payable during an Extended Interest Payment Period, except at the end thereof.
The Company has no present intention of exercising its rights to defer payments
of interest on the Subordinated Debentures. The Company must give the Property
Trustee, the Administrative Trustees and the Debenture Trustee notice of its
election of such Extended Interest Payment Period at least two Business Days
prior to the earlier of (i) the next succeeding date on which Distributions on
the Trust Securities would have been payable except for the election to begin
such Extended Interest Payment Period, or (ii) the date Simmons Trust is
required to give notice of the record date, or the date such Distributions are
payable, to The Nasdaq Stock Market's National Market (or other applicable
self-regulatory organization) or to holders of the Preferred Securities, but in
any event at least one Business Day before such record date. Subject to the
foregoing, there is no limitation on the number of times that the Company may
elect to begin an Extended Interest Payment Period.
ADDITIONAL SUMS
If Simmons Trust or the Property Trustee is required to pay any additional
taxes, duties or other governmental charges as a result of the occurrence of a
Tax Event, the Company will pay as additional amounts (referred to herein as
"Additional Payment") on the Subordinated Debentures such additional amounts
as may be required so that the net amounts received and retained by Simmons
Trust after paying any such additional taxes, duties or other
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governmental charges will not be less than the amounts Simmons Trust would have
received had such additional taxes, duties or other governmental charges not
been imposed.
REDEMPTION
The Company will have the right to redeem the Subordinated Debentures prior
to maturity (i) on or after June 30, 2002, in whole at any time or in part from
time to time, or (ii) at any time in whole (but not in part), within 180 days
following the occurrence of a Tax Event, a Capital Treatment Event or an
Investment Company Event, in each case at a redemption price equal to the
accrued and unpaid interest on the Subordinated Debentures so redeemed to the
date fixed for redemption, plus 100% of the principal amount thereof. Any such
redemption prior to the Stated Maturity will be subject to prior approval of
the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve.
"Tax Event" means the receipt by Simmons Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (i) interest payable by the Company on the Subordinated
Debentures is not, or within 90 days of the date of such opinion will not be,
deductible by the Company, in whole or in part, for United States federal
income tax purposes, (ii) Simmons Trust is, or will be within 90 days after the
date of such opinion of counsel, subject to United States federal income tax
with respect to income received or accrued on the Subordinated Debentures, or
(iii) Simmons Trust is, or will be within 90 days after the date of such
opinion of counsel, subject to more than a de minimis amount of other taxes,
duties, assessments or other governmental charges. The Company must request and
receive an opinion with regard to such matters within a reasonable period of
time after it becomes aware of the possible occurrence of any of the events
described in clauses (i) through (iii) above.
"Capital Treatment Event" means the receipt by Simmons Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such proposed change,
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk of impairment of the Company's ability to treat the
aggregate Liquidation Amount of the Preferred Securities (or any substantial
portion thereof) as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Company.
"Investment Company Event" means the receipt by Simmons Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, Simmons Trust is or will be
considered an "investment company" that is required to be registered under
the Investment Company Act, which change becomes effective on or after the date
of original issuance of the Preferred Securities.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Subordinated Debentures to
be redeemed at its registered address. Unless the Company defaults in payment
of the redemption price for the Subordinated Debentures, on and after the
redemption date interest ceases to accrue on such Subordinated Debentures or
portions thereof called for redemption.
The Subordinated Debentures will not be subject to any sinking fund.
DISTRIBUTION UPON LIQUIDATION
As described under "Description of the Preferred Securities--Liquidation
Distribution Upon Termination," under certain circumstances involving the
termination of Simmons Trust, the Subordinated Debentures may be distributed to
the holders of the Preferred Securities in liquidation of Simmons Trust after
satisfaction of liabilities to creditors of Simmons Trust as provided by
applicable law. Any such distribution will be subject to receipt of prior
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approval by the Federal Reserve if then required under applicable policies or
guidelines of the Federal Reserve. If the Subordinated Debentures are
distributed to the holders of Preferred Securities upon the liquidation of
Simmons Trust, the Company will use its best efforts to list the Subordinated
Debentures on The Nasdaq Stock Market's National Market or such stock
exchanges, if any, on which the Preferred Securities are then listed. There can
be no assurance as to the market price of any Subordinated Debentures that may
be distributed to the holders of Preferred Securities.
RESTRICTIONS ON CERTAIN PAYMENTS
If at any time (i) there has occurred a Debenture Event of Default, (ii)
the Company is in default with respect to its obligations under the Guarantee,
or (iii) the Company has given notice of its election of an Extended Interest
Payment Period as provided in the Indenture with respect to the Subordinated
Debentures and has not rescinded such notice, or such Extended Interest Payment
Period, or any extension thereof, is continuing, the Company will not (1)
declare or pay any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the Company's capital
stock (other than (a) dividends or distributions in common stock of the
Company, any declaration of a non-cash dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, and (b) purchases of common stock of the Company related to
the rights under any of the Company's benefit plans for its directors, officers
or employees), (2) make any payment of principal, interest or premium, if any,
on or repay or repurchase or redeem any debt securities of the Company that
rank pari passu with or junior in interest to the Subordinated Debentures or
make any guarantee payments with respect to any guarantee by the Company of the
debt securities of any subsidiary of the Company if such guarantee ranks pari
passu or junior in interest to the Subordinated Debentures (other than payments
under the Guarantee), or (3) redeem, purchase or acquire less than all of the
Subordinated Debentures or any of the Preferred Stock.
SUBORDINATION
The Indenture provides that the Subordinated Debentures issued thereunder
are subordinated and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company. Upon any
payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceedings of the Company, the holders of Senior Debt, Subordinated
Debt and Additional Senior Obligations of the Company will first be entitled to
receive payment in full of principal of (and premium, if any) and interest, if
any, on such Senior Debt, Subordinated Debt and Additional Senior Obligations
of the Company before the holders of Subordinated Debentures will be entitled
to receive or retain any payment in respect of the principal of or interest on
the Subordinated Debentures.
In the event of the acceleration of the maturity of any Subordinated
Debentures, the holders of all Senior Debt, Subordinated Debt and Additional
Senior Obligations of the Company outstanding at the time of such acceleration
will first be entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders of the
Subordinated Debentures will be entitled to receive or retain any payment in
respect of the principal of or interest on the Subordinated Debentures.
No payments on account of principal or interest in respect of the
Subordinated Debentures may be made if there has occurred and is continuing a
default in any payment with respect to Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company or an event of default with
respect to any Senior Debt, Subordinated Debt or Additional Senior Obligations
of the Company resulting in the acceleration of the maturity thereof, or if any
judicial proceeding is pending with respect to any such default.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every capital
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lease obligation of such Person, and (vi) and every obligation of the type
referred to in clauses (i) through (v) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable, directly or indirectly, as obligor or otherwise.
"Senior Debt" means, with respect to the Company, the principal of (and
premium, if any) and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt, whether incurred on or prior to the date of the Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Subordinated Debentures
or to other Debt which is pari passu with, or subordinated to, the Subordinated
Debentures; provided, however, that Senior Debt will not be deemed to include
(i) any Debt of the Company which when incurred and without respect to any
election under Section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, (the "Bankruptcy Code"), was without recourse to the Company, (ii)
any Debt of the Company to any of its subsidiaries, (iii) any Debt to any
employee of the Company, (iv) any Debt which by its terms is subordinated to
trade accounts payable or accrued liabilities arising in the ordinary course of
business to the extent that payments made to the holders of such Debt by the
holders of the Subordinated Debentures as a result of the subordination
provisions of the Indenture would be greater than they otherwise would have
been as a result of any obligation of such holders to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination provisions to which
such Debt is subject, and (v) Debt which constitutes Subordinated Debt.
"Subordinated Debt" means, with respect to the Company, the principal of
(and premium, if any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating
to the Company whether or not such claim for post-petition interest is allowed
in such proceeding), on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, which is by its terms expressly provided to
be junior and subordinate to other Debt of the Company (other than the
Subordinated Debentures).
"Additional Senior Obligations" means, with respect to the Company, all
indebtedness, whether incurred on or prior to the date of the Indenture or
thereafter incurred, for claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements; provided, however, that Additional Senior Obligations do not
include claims in respect of Senior Debt or Subordinated Debt or obligations
which, by their terms, are expressly stated to be not superior in right of
payment to the Subordinated Debentures or to rank pari passu in right of
payment with the Subordinated Debentures. "Claim," as used herein, has the
meaning assigned thereto in Section 101(4) of the Bankruptcy Code.
The Indenture places no limitation on the amount of additional Senior Debt,
Subordinated Debt or Additional Senior Obligations that may be incurred by the
Company. The Company expects from time to time to incur additional indebtedness
constituting Senior Debt, Subordinated Debt and Additional Senior Obligations.
As of March 31, 1997, the Company had aggregate Senior Debt, Subordinated Debt
and Additional Senior Obligations of approximately $1.1 million and, upon
consummation of the Pending Acquisitions, such aggregate amount will be
approximately $34.1 million. See "Use of Proceeds" and "Capitalization."
Because the Company is a holding company, the Subordinated Debentures are
effectively subordinated to all existing and future liabilities of the
Company's subsidiaries, including obligations to depositors of the Banks.
PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on the Subordinated Debentures
will be made at the office of the Debenture Trustee in Boston, Massachusetts,
except that, at the option of the Company, payment of any interest may be made
(i) by check mailed to the address of the Person entitled thereto as such
address appears in the register of holders of the Subordinated Debentures, or
(ii) by transfer to an account maintained by the Person entitled thereto as
specified in the register of holders of the Subordinated Debentures, provided
that proper transfer instructions have been received by the regular record
date. Payment of any interest on Subordinated Debentures will be made to the
Person in whose name such Subordinated Debenture is registered at the close of
business on the regular record date for such interest, except in the case of
defaulted interest. The Company may at any time designate additional paying
agents for the Subordinated Debentures or rescind the designation of any paying
agent for the Subordinated
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Debentures; however, the Company will at all times be required to maintain a
paying agent in each place of payment for the Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any paying agent for the
Subordinated Debentures, or then held by the Company in trust, for the payment
of the principal of or interest on the Subordinated Debentures and remaining
unclaimed for two years after such principal or interest has become due and
payable will be repaid to the Company on May 31 of each year or (if then held
in trust by the Company) will be discharged from such trust and the holder of
such Subordinated Debenture will thereafter look, as a general unsecured
creditor, only to the Company for payment thereof.
REGISTRAR AND TRANSFER AGENT
The Debenture Trustee will act as the registrar and the transfer agent for
the Subordinated Debentures. Subordinated Debentures may be presented for
registration of transfer (with the form of transfer endorsed thereon, or a
satisfactory written instrument of transfer, duly executed), at the office of
the registrar in Boston, Massachusetts. The Company may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts. The Company may at any time
designate additional transfer agents with respect to the Subordinated
Debentures. In the event of any redemption, neither the Company nor the
Debenture Trustee will be required to (i) issue, register the transfer of or
exchange Subordinated Debentures during a period beginning at the opening of
business 15 days before the day of selection for redemption of Subordinated
Debentures and ending at the close of business on the day of mailing of the
relevant notice of redemption, or (ii) transfer or exchange any Subordinated
Debentures so selected for redemption, except, in the case of any Subordinated
Debentures being redeemed in part, any portion thereof not to be redeemed.
MODIFICATION OF INDENTURE
The Company and the Debenture Trustee may, from time to time without the
consent of the holders of the Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies and qualifying, or maintaining
the qualification of, the Indenture under the Trust Indenture Act. The
Indenture contains provisions permitting the Company and the Debenture Trustee,
with the consent of the holders of not less than a majority in principal amount
of the outstanding Subordinated Debentures, to modify the Indenture; provided,
that no such modification may, without the consent of the holder of each
outstanding Subordinated Debenture affected by such proposed modification, (i)
extend the fixed maturity of the Subordinated Debentures, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or (ii) reduce the percentage of principal amount of
Subordinated Debentures, the holders of which are required to consent to any
such modification of the Indenture; provided that so long as any of the
Preferred Securities remain outstanding, no such modification may be made that
requires the consent of the holders of the Subordinated Debentures, and no
termination of the Indenture may occur, and no waiver of any Debenture Event of
Default may be effective, without the prior consent of the holders of at least
a majority of the aggregate Liquidation Amount of the Preferred Securities and
that if the consent of the holder of each Subordinated Debenture is required,
such modification will not be effective until each holder to Trust Securities
has consented thereto.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Subordinated Debentures that has occurred and is
continuing constitutes an event of default (each, a "Debenture Event of
Default") with respect to the Subordinated Debentures:
(i) failure for 30 days to pay any interest on the Subordinated
Debentures, when due (subject to the deferral of any due date in the case
of an Extended Interest Payment Period); or
(ii) failure to pay any principal on the Subordinated Debentures when
due whether at maturity, upon redemption by declaration or otherwise; or
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(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Company from the Debenture Trustee or the holders of at least 25% in
aggregate outstanding principal amount of the Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of the
Subordinated Debentures have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee.
The Debenture Trustee, or the holders of not less than 25% in aggregate
outstanding principal amount of the Subordinated Debentures, may declare the
principal due and payable immediately upon a Debenture Event of Default. The
holders of a majority in aggregate outstanding principal amount of the
Subordinated Debentures may annul such declaration and waive the default if the
default (other than the non-payment of the principal of the Subordinated
Debentures which has become due solely by such acceleration) has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee.
Should the holders of the Subordinated Debentures fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Preferred Securities will have such right.
The Company is required to file annually with the Debenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under the Indenture.
If a Debenture Event of Default has occurred and is continuing, the
Property Trustee will have the right to declare the principal of and the
interest on such Subordinated Debentures, and any other amounts payable under
the Indenture, to be forthwith due and payable and to enforce its other rights
as a creditor with respect to such Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF THE PREFERRED SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest on or
principal of the Subordinated Debentures on the payment date on which such
payment is due and payable, then a holder of Preferred Securities may institute
a legal proceeding directly against the Company for enforcement of payment to
such holder of the principal of or interest on such Subordinated Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such holder (a "Direct Action"). In connection with
such Direct Action, the Company will have a right of set-off under the
Indenture to the extent of any payment made by the Company to such holder of
Preferred Securities in the Direct Action. The Company may not amend the
Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Preferred Securities. If the
right to bring a Direct Action is removed, Simmons Trust may become subject to
the reporting obligations under the Exchange Act.
The holders of the Preferred Securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the Subordinated Debentures unless there has been
an Event of Default under the Trust Agreement. See "Description of the
Preferred Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Company may not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to
any Person, and any Person may not consolidate with or merge into the Company
or sell, convey, transfer or otherwise dispose of its properties and assets
substantially as an entirety to the Company, unless (i) in the event the
Company consolidates with or merges into another Person or conveys or transfers
its properties and assets substantially as an entirety to any Person, the
successor Person is organized under the laws of the United States or any state
or the District of Columbia, and such successor Person expressly assumes by
supplemental indenture the Company's obligations on the Subordinated Debentures
issued under the Indenture, (ii) immediately after giving effect thereto, no
Debenture Event of Default, and no event which, after notice or lapse of time
or both, would become a Debenture Event of Default, has occurred and is
continuing, and (iii) certain other conditions as prescribed in the Indenture
are met.
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SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect (except as to the
Company's obligations to pay certain sums due pursuant to the Indenture and to
provide certain officers' certificates and opinions of counsel described
therein) and the Company will be deemed to have satisfied and discharged the
Indenture when, among other things, all Subordinated Debentures not previously
delivered to the Debenture Trustee for cancellation (i) have become due and
payable, or (ii) will become due and payable at their Stated Maturity within
one year or are to be called for redemption within one year, and the Company
deposits or causes to be deposited with the Debenture Trustee trust funds, in
trust, for the purpose and in an amount sufficient to pay and discharge the
entire indebtedness on the Subordinated Debentures not previously delivered to
the Debenture Trustee for cancellation, for the principal and interest to the
date of the deposit or to the Stated Maturity or redemption date, as the case
may be.
GOVERNING LAW
The Indenture and the Subordinated Debentures will be governed by and
construed in accordance with the laws of the State of Arkansas.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee has and is subject to all of the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Debenture Trustee is under no
obligation to exercise any of the powers vested in it by the Indenture at the
request of any holder of Subordinated Debentures, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which
might be incurred thereby. The Debenture Trustee is not required to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
MISCELLANEOUS
The Company has agreed, pursuant to the Indenture, for so long as Trust
Securities remain outstanding, (i) to maintain directly or indirectly 100%
ownership of the Common Securities of Simmons Trust (provided that certain
successors which are permitted pursuant to the Indenture may succeed to the
Company's ownership of the Common Securities), (ii) not to voluntarily
terminate, wind up or liquidate Simmons Trust, except upon prior approval of
the Federal Reserve if then so required under applicable capital guidelines or
policies of the Federal Reserve, and (a) in connection with a distribution of
Subordinated Debentures to the holders of the Preferred Securities in
liquidation of Simmons Trust, or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement, and (iii) to
use its reasonable efforts, consistent with the terms and provisions of the
Trust Agreement, to cause Simmons Trust to remain classified as a grantor trust
and not as an association taxable as a corporation for United States federal
income tax purposes.
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DESCRIPTION OF THE GUARANTEE
The Preferred Securities Guarantee Agreement (the "Guarantee") will be
executed and delivered by the Company concurrently with the issuance of the
Preferred Securities for the benefit of the holders of the Preferred
Securities. The Guarantee will be qualified as an indenture under the Trust
Indenture Act. The Guarantee Trustee, State Street Bank and Trust Company, will
act as indenture trustee under the Guarantee for purposes of complying with the
provisions of the Trust Indenture Act and will hold the Guarantee for the
benefit of the holders of the Preferred Securities. The following summary of
the material terms and provisions of the Guarantee does not purport to be
complete and is subject to, and qualified in its entirety by reference to, all
of the provisions of the Guarantee and the Trust Indenture Act. Wherever
particular defined terms of the Guarantee are referred to, but not defined
herein, such defined terms are incorporated herein by reference. The form of
the Guarantee has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part.
GENERAL
The Company will, pursuant to the Guarantee, irrevocably agree to pay in
full on a subordinated basis, to the extent set forth therein, the Guarantee
Payments (as defined below) to the holders of the Preferred Securities, as and
when due, regardless of any defense, right of set-off or counterclaim that
Simmons Trust may have or assert other than the defense of payment. The
following payments with respect to the Preferred Securities, to the extent not
paid by or on behalf of Simmons Trust (the "Guarantee Payments"), will be
subject to the Guarantee: (i) any accrued and unpaid Distributions required to
be paid on the Preferred Securities, to the extent that Simmons Trust has funds
available therefor at such time, (ii) the Redemption Price with respect to any
Preferred Securities called for redemption to the extent that Simmons Trust has
funds available therefor at such time, and (iii) upon a voluntary or
involuntary dissolution, winding up or liquidation of Simmons Trust (other than
in connection with the distribution of Subordinated Debentures to the holders
of Preferred Securities or a redemption of all of the Preferred Securities),
the lesser of (a) the amount of the Liquidation Distribution, to the extent
Simmons Trust has funds available therefor at such time, and (b) the amount of
assets of Simmons Trust remaining available for distribution to holders of
Preferred Securities in liquidation of Simmons Trust. The obligation of the
Company to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Company to the holders of the Preferred Securities or
by causing Simmons Trust to pay such amounts to such holders.
The Guarantee will not apply to any payment of Distributions except to the
extent Simmons Trust has funds available therefor. If the Company does not make
interest payments on the Subordinated Debentures held by Simmons Trust, Simmons
Trust will not pay Distributions on the Preferred Securities and will not have
funds legally available therefor.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company in the same
manner as the Subordinated Debentures. The Guarantee does not place a
limitation on the amount of additional Senior Debt, Subordinated Debt or
Additional Senior Obligations that may be incurred by the Company. The Company
expects from time to time to incur additional indebtedness constituting Senior
Debt, Subordinated Debt and Additional Senior Obligations.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other Person). The Guarantee will
not be discharged except by payment of the Guarantee Payments in full to the
extent not paid by Simmons Trust or upon distribution of the Subordinated
Debentures to the holders of the Preferred Securities. Because the Company is a
holding company, the right of the Company to participate in any distribution of
assets of any Bank upon such Bank's liquidation or reorganization or otherwise
is subject to the prior claims of creditors of that Bank, except to the extent
the Company may itself be recognized as a creditor of that Bank. The Company's
obligations under the Guarantee, therefore, will be effectively subordinated to
all existing and future liabilities of the Company's subsidiaries, and
claimants should look only to the assets of the Company for payments
thereunder.
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AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Preferred Securities (in which case no vote will
be required), the Guarantee may not be amended without the prior approval of
the holders of not less than a majority of the aggregate Liquidation Amount of
the outstanding Preferred Securities. See "Description of the Preferred
Securities--Voting Rights; Amendment of Trust Agreement." All guarantees and
agreements contained in the Guarantee will bind the successors, assigns,
receivers, trustees and representatives of the Company and will inure to the
benefit of the holders of the Preferred Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of not less than a majority in aggregate Liquidation Amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
Any holder of Preferred Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against Simmons Trust, the Guarantee
Trustee or any other Person.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with
all the conditions and covenants applicable to it under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Company in performance of the Guarantee, undertakes to perform
only such duties as are specifically set forth in the Guarantee and, after
default with respect to the Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or
her own affairs. Subject to such provisions, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by the Guarantee at the
request of any holder of any Preferred Securities, unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon (a)
full payment of the Redemption Price of the Preferred Securities, (b) full
payment of the amounts payable upon liquidation of Simmons Trust, or (c)
distribution of the Subordinated Debentures to the holders of the Preferred
Securities. The Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of the Preferred Securities must
restore payment of any sums paid under such Preferred Securities or the
Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of Arkansas.
EXPENSE AGREEMENT
The Company will, pursuant to the Agreement as to Expenses and Liabilities
entered into by it under the Trust Agreement (the "Expense Agreement"),
irrevocably and unconditionally guarantee to each person or entity to whom
Simmons Trust becomes indebted or liable, the full payment of any costs,
expenses or liabilities of Simmons Trust, other than obligations of Simmons
Trust to pay to the holders of the Preferred Securities or other similar
interests in Simmons Trust of the amounts due such holders pursuant to the
terms of the Preferred Securities or such other similar interests, as the case
may be. Third party creditors of Simmons Trust may proceed directly against the
Company under the Expense Agreement, regardless of whether such creditors had
notice of the Expense Agreement.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE SUBORDINATED DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent Simmons Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Company as and to the extent
set forth under "Description of the Guarantee." The Company and Simmons Trust
believe that, taken together, the obligations of the Company under the
Subordinated Debentures, the Indenture, the Trust Agreement, the Expense
Agreement, and the Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee, on a subordinated basis, of payment of Distributions
and other amounts due on the Preferred Securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the obligations of Simmons Trust under the Preferred
Securities. If and to the extent that the Company does not make payments on the
Subordinated Debentures, Simmons Trust will not pay Distributions or other
amounts due on the Preferred Securities. The Guarantee does not cover payment
of Distributions when Simmons Trust does not have sufficient funds to pay such
Distributions. In such event, the remedy of a holder of Preferred Securities is
to institute a legal proceeding directly against the Company for enforcement of
payment of such Distributions to such holder. The obligations of the Company
under the Guarantee are subordinate and junior in right of payment to all
Senior Debt, Subordinated Debt and Additional Senior Obligations of the
Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Preferred Securities, primarily
because (i) the aggregate principal amount of the Subordinated Debentures will
be equal to the sum of the aggregate stated Liquidation Amount of the Trust
Securities, (ii) the interest rate and interest and other payment dates on the
Subordinated Debentures will match the Distribution rate and Distribution and
other payment dates for the Preferred Securities, (iii) the Company will pay
for all and any costs, expenses and liabilities of Simmons Trust (except the
obligations of Simmons Trust to holders of the Preferred Securities), and (iv)
the Trust Agreement further provides that Simmons Trust will not engage in any
activity that is not consistent with the limited purposes of Simmons Trust.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred Security may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee, Simmons
Trust or any other Person. A default or event of default under any Senior Debt,
Subordinated Debt or Additional Senior Obligations of the Company would not
constitute a default or Event of Default. In the event, however, of payment
defaults under, or acceleration of, Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company, the subordination provisions of
the Indenture provide that no payments may be made in respect of the
Subordinated Debentures until such Senior Debt, Subordinated Debt or Additional
Senior Obligations has been paid in full or any payment default thereunder has
been cured or waived. Failure to make required payments on the Subordinated
Debentures would constitute an Event of Default.
LIMITED PURPOSE OF SIMMONS TRUST
The Preferred Securities evidence a preferred undivided beneficial interest
in the assets of Simmons Trust. Simmons Trust exists for the sole purpose of
issuing the Trust Securities and investing the proceeds thereof in Subordinated
Debentures. A principal difference between the rights of a holder of a
Preferred Security and the rights of a holder of a Subordinated Debenture is
that a holder of a Subordinated Debenture is entitled to receive from the
Company the principal amount of and interest accrued on Subordinated Debentures
held, while a holder of Preferred Securities is entitled to receive
Distributions from Simmons Trust (or from the Company under the Guarantee) if
and to the extent Simmons Trust has funds available for the payment of such
Distributions.
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RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
Simmons Trust involving the liquidation of the Subordinated Debentures, the
holders of the Preferred Securities will be entitled to receive, out of assets
held by Simmons Trust, the Liquidation Distribution in cash. See "Description
of the Preferred Securities--Liquidation Distribution Upon Termination." Upon
any voluntary or involuntary liquidation or bankruptcy of the Company, the
Property Trustee, as holder of the Subordinated Debentures, would be a
subordinated creditor of the Company, subordinated in right of payment to all
Senior Debt, Subordinated Debt and Additional Senior Obligations of the Company
(as set forth in the Indenture), but entitled to receive payment in full of
principal and interest before any shareholders of the Company receive payments
or distributions. Since the Company is the guarantor under the Guarantee and
has agreed to pay for all costs, expenses and liabilities of Simmons Trust
(other than the obligations of Simmons Trust to the holders of its Preferred
Securities), the positions of a holder of the Preferred Securities and a holder
of the Subordinated Debentures relative to other creditors and to shareholders
of the Company in the event of liquidation or bankruptcy of the Company are
expected to be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The following is a summary of the material United States federal income tax
considerations that may be relevant to the purchasers of Preferred Securities
which has been passed upon by Lewis, Rice & Fingersh, L.C., special counsel to
the Company and Simmons Trust insofar as it relates to matters of law and legal
conclusions. The conclusions expressed herein are based upon current provisions
of the Internal Revenue Code of 1986, as amended (the "Code"), regulations
thereunder and current administrative rulings and court decisions, all of which
are subject to change at any time, with possible retroactive effect. Subsequent
changes may cause tax consequences to vary substantially from the consequences
described below. Furthermore, the authorities on which the following summary is
based are subject to various interpretations, and it is therefore possible that
the United States federal income tax treatment of the purchase, ownership, and
disposition of Preferred Securities may differ from the treatment described
below.
No attempt has been made in the following discussion to comment upon all
United States federal income tax matters affecting purchasers of Preferred
Securities. Moreover, the discussion generally focuses on holders of Preferred
Securities who are individual citizens or residents of the United States and
who acquire Preferred Securities on their original issue at their offering
price and hold Preferred Securities as capital assets. The discussion has only
limited application to dealers in securities, corporations, estates, trusts or
nonresident aliens and does not address all the tax consequences that may be
relevant to holders who may be subject to special tax treatment, such as, for
example, banks, thrifts, real estate investment trusts, regulated investment
companies, insurance companies, dealers in securities or currencies, tax-exempt
investors, or persons that will hold the Preferred Securities as a position in
a "straddle," as part of a "synthetic security" or "hedge," as part of a
"conversion transaction" or other integrated investment, or as other than a
capital asset. The following summary also does not address the tax consequences
to persons that have a functional currency other than the United States dollar
or the tax consequences to shareholders, partners or beneficiaries of a holder
of Preferred Securities. Further, it does not include any description of any
alternative minimum tax consequences or the tax laws of any state or local
government or of any foreign government that may be applicable to the Preferred
Securities. Accordingly, each prospective investor should consult, and should
rely exclusively on, such investor's own tax advisors in analyzing the federal,
state, local and foreign tax consequences of the purchase, ownership or
disposition of Preferred Securities.
CLASSIFICATION OF THE SUBORDINATED DEBENTURES
The Company intends to take the position that the Subordinated Debentures
will be classified for United States federal income tax purposes as
indebtedness of the Company under current law, and, by acceptance of a
Preferred Security, each holder covenants to treat the Subordinated Debentures
as indebtedness and the Preferred Securities as evidence of an indirect
beneficial ownership interest in the Subordinated Debentures. No assurance can
be given, however, that such position of the Company will not be challenged by
the Internal Revenue Service or, if challenged, that such a challenge will not
be successful. The remainder of this discussion assumes that the Subordinated
Debentures will be classified for United States federal income tax purposes as
indebtedness of the Company.
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CLASSIFICATION OF SIMMONS TRUST
Under current law and assuming full compliance with the terms of the Trust
Agreement and Indenture (and certain other documents described herein), Simmons
Trust will be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation. Accordingly,
for United States federal income tax purposes, each holder of Preferred
Securities generally will be treated as owning an undivided beneficial interest
in the Subordinated Debentures, and each holder will be required to include in
its gross income any OID accrued with respect to his allocable share of the
Subordinated Debentures whether or not cash is actually distributed to such
holder.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
Under recently issued Treasury regulations (the "Regulations"), a debt
instrument will be deemed to be issued with OID if there is more than a
"remote" contingency that periodic stated interest payments due on the
instrument will not be timely paid. Because the exercise by the Company of its
option to defer the payment of stated interest on the Subordinated Debentures
would prevent the Company from declaring dividends on any class of equity, the
Company believes that the likelihood of its exercising the option is "remote"
within the meaning of the Regulations. As a result, the Company intends to take
the position that the Subordinated Debentures will not be deemed to be issued
with OID. Accordingly, based on this position, stated interest payments on the
Subordinated Debentures will be includible in the ordinary income of a holder
at the time that such payments are paid or accrued in accordance with the
holder's regular method of accounting. Because the Regulations have not yet
been addressed in any published rulings or other published interpretations
issued by the Internal Revenue Service, it is possible that the Internal
Revenue Service could take a position contrary to the position taken by the
Company.
If the Company were to exercise its option to defer the payment of stated
interest on the Subordinated Debentures, the Subordinated Debentures would be
treated, solely for purpose of the OID rules, as being "re-issued" at such
time with OID. The amount of interest income includible in the taxable income
of a holder of the Subordinated Debentures would be determined on the basis of
a constant yield method over the remaining term of the instrument regardless of
the holder's method of tax accounting and the actual receipt of future payments
of stated interest on the Subordinated Debentures would no longer be separately
reported as taxable income. Consequently, a holder of Preferred Securities
would be required to include OID in ordinary income, on a current basis, over
the period that the instrument is held even though the Company would not be
making any actual cash payments during the Extended Interest Payment Period.
The amount of OID that would accrue, in the aggregate, during the Extended
Interest Payment Period would be approximately equal to the amount of the cash
payment due at the end of such period. Moreover, under the Regulations, if the
option to defer the payment of interest income with respect to the Subordinated
Debentures was determined not to be "remote," the Subordinated Debentures
would be treated as having been originally issued with OID. In such event, all
of a holder's taxable interest income would be accounted for as OID and any OID
included in income would increase the holder's adjusted tax basis in the
Subordinated Debentures and the holder's actual receipt of interest payments
would reduce such basis.
Because income on the Preferred Securities will constitute interest income
for United States federal income tax purposes, corporate holders of Preferred
Securities will not be entitled to claim a dividends received deduction in
respect of such income.
MARKET DISCOUNT AND ACQUISITION PREMIUM
Holders of Preferred Securities other than a holder who purchased the
Preferred Securities upon original issuance may be considered to have acquired
their undivided interests in the Subordinated Debentures with "market
discount" or "acquisition premium" as such phrases are defined for United
States federal income tax purposes. Such holders are advised to consult their
tax advisors as to the income tax consequences of the acquisition, ownership
and disposition of the Preferred Securities.
RECEIPT OF SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF SIMMONS TRUST
Under certain circumstances, as described under "Description of the
Preferred Securities--Redemption" and "--Liquidation Distribution Upon
Termination," the Subordinated Debentures may be distributed to holders of
Preferred Securities upon a liquidation of Simmons Trust. Under current United
States federal income tax law, such a
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distribution would be treated as a nontaxable event to each such holder and
would result in such holder having an adjusted tax basis in the Subordinated
Debentures received in the liquidation equal to such holder's adjusted tax
basis in the Preferred Securities immediately before the distribution. A
holder's holding period in the Subordinated Debentures so received in
liquidation of Simmons Trust would include the period for which such holder
held the Preferred Securities.
If, however, a Tax Event occurs which results in Simmons Trust being
treated as an association taxable as a corporation, the distribution would
likely constitute a taxable event to holders of the Preferred Securities. Under
certain circumstances described herein, the Subordinated Debentures may be
redeemed for cash and the proceeds of such redemption distributed to holders in
redemption of their Preferred Securities. Under current law, such a redemption
would, for United States federal income tax purposes, constitute a taxable
disposition of the redeemed Preferred Securities, and a holder would recognize
gain or loss as if the holder sold such Preferred Securities for cash. See
"Description of the Preferred Securities--Redemption" and "--Liquidation
Distribution Upon Termination."
DISPOSITION OF PREFERRED SECURITIES
Upon the sale of the Preferred Securities, a holder will recognize a gain
or loss in an amount equal to the difference between his adjusted tax basis in
the Preferred Securities and the amount realized in the sale (except to the
extent of any amount received in respect of accrued but unpaid interest not
previously included in income). A holder's adjusted tax basis in the Preferred
Securities generally will be its initial purchase price increased by OID (if
any) previously includible in the holder's gross income to the date of
disposition and decreased by payments (if any) received on the Preferred
Securities in respect of OID to the date of disposition. Such gain or loss
generally will be a capital gain or loss and will be a long-term capital gain
or loss if the Preferred Securities have been held for more than one year at
the time of sale.
The Preferred Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest (or OID if the Subordinated
Debentures are treated as having been issued, or reissued, with OID) with
respect to the underlying Subordinated Debentures. A holder who disposes of his
Preferred Securities between record payment dates will be required to include
in ordinary income any portion of the amount realized that is attributable to
accrued but unpaid interest (or OID, if any) to the extent not previously
included in income on his pro rata share of the underlying Subordinated
Debentures during the taxable year of sale through the date of disposition. To
the extent that the amount realized in the sale is less than the holder's
adjusted tax basis, a holder will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
EFFECT OF PROPOSED CHANGES IN TAX LAWS
On March 19, 1996, President Clinton proposed certain tax law changes that
would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations issued on or after December 7,
1995 (the "1996 Proposed Legislation") if such debt obligations (i) have a
weighted average maturity in excess of 40 years or (ii) have a maximum term in
excess of 20 years and are not shown as indebtedness on the issuer's applicable
consolidated balance sheet. On March 29, 1996, Senate Finance Committee
Chairman William V. Roth, Jr. and House Ways and Means Committee Chairman Bill
Archer issued a joint statement (the "Joint Statement") indicating their
intent that certain legislative proposals initiated by the Clinton
administration, including the 1996 Proposed Legislation, that may be adopted by
either of the tax-writing committees of Congress would have an effective date
that is no earlier than the date of "appropriate Congressional action." In
addition, subsequent to the publication of the Joint Statement, Senator Daniel
Patrick Moynihan and Representatives Sam M. Gibbons and Charles B. Rangel wrote
letters to Treasury Department officials concurring with the views expressed in
the Joint Statement. Neither the 1996 Proposed Legislation nor similar
legislation was enacted during the 104th Congress. On February 6, 1997,
President Clinton proposed in the administration's fiscal year 1998 budget
certain tax law changes (the "1997 Proposed Legislation") that would, among
other things, generally deny corporate issuers a deduction for interest or OID
in respect of certain debt obligations if such debt obligations have a maximum
term in excess of 15 years and are not shown as indebtedness on the issuer's
applicable consolidated balance sheet. The proposed budget also contains a
provision that would deny a deduction to corporate issuers for interest or OID
with respect to debt instruments that have a maximum term of more than 40 years
(including rights to extend, renew or relend), or are payable in stock of the
issuer or a related party. The United States Treasury Department's summary of
the 1997
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Proposed Legislation states that the above provisions regarding the deduction
of interest would generally be effective for instruments issued on or after the
date of "first Congressional committee action" with respect to the 1997
Proposed Legislation. The Ways and Means Committee began a full committee
hearing on the President's fiscal 1998 budget on February 11, 1997 (the
"February Hearing"). There can be no assurance that the effective date
guidance in the administration's proposal will be adopted if the proposed
change to the tax law is enacted or that the February Hearing will not be
considered the date of "first Congressional Committee action." Nor can there
be any assurance that other legislation enacted after the date hereof will not
otherwise adversely affect the ability of the Company to deduct the interest
payable on the Subordinated Debentures. Consequently, there can be no assurance
that a Tax Event will not occur. A Tax Event would permit the Company, upon
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, to cause a redemption of the
Preferred Securities before, as well as after, June 30, 2002. See "Description
of the Subordinated Debentures--Redemption or Exchange" and "Description of
the Preferred Securities--Redemption--Tax Event Redemption, Capital Treatment
Event Redemption or Investment Company Event Redemption."
BACKUP WITHHOLDING AND INFORMATION REPORTING
The amount of interest paid on the Preferred Securities held of record by
individual citizens or residents of the United States, or certain trusts,
estates, and partnerships, will be reported to the Internal Revenue Service on
Forms 1099, which forms should be mailed to such holders of Preferred
Securities by January 31 following each calendar year. Payments, including
interest, made on, and proceeds from the sale of, the Preferred Securities may
be subject to a "backup" withholding tax (currently at 31%) unless the holder
complies with certain identification and other requirements. Any amounts
withheld under the backup withholding rules may be allowed as a credit against
the holder's United States federal income tax liability, provided the required
information is provided to the Internal Revenue Service.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON THE
PARTICULAR SITUATION OF A HOLDER OF PREFERRED SECURITIES. HOLDERS OF PREFERRED
SECURITIES SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES
FEDERAL OR OTHER TAX LAWS.
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ERISA CONSIDERATIONS
Employee benefit plans that are subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
("Plans"), generally may purchase Preferred Securities, subject to the
investing fiduciary's determination that the investment in Preferred Securities
satisfies ERISA's fiduciary standards and other requirements applicable to
investments by the Plan.
In any case, the Company and/or any of its affiliates may be considered a
"party in interest" (within the meaning of ERISA) or a "disqualified
person" (within the meaning of Section 4975 of the Code) with respect to
certain plans (generally, Plans maintained or sponsored by, or contributed to
by, any such persons with respect to which the Company or an affiliate is a
fiduciary or Plans for which the Company or an affiliate provides services).
The acquisition and ownership of Preferred Securities by a Plan (or by an
individual retirement arrangement or other Plans described in Section
4975(e)(1) of the Code) with respect to which the Company or any of its
affiliates is considered a party in interest or a disqualified person, may
constitute or result in a prohibited transaction under ERISA or Section 4975 of
the Code, unless such Preferred Securities are acquired pursuant to and in
accordance with an applicable exemption.
As a result, Plans with respect to which the Company or any of its
affiliates is a party in interest or a disqualified person should not acquire
Preferred Securities unless such Preferred Securities are acquired pursuant to
and in accordance with an applicable exemption. Any other Plans or other
entities whose assets include Plan assets subject to ERISA or Section 4975 of
the Code proposing to acquire Preferred Securities should consult with their
own counsel.
UNDERWRITING
Stifel, Nicolaus & Company, Incorporated, the Underwriter, has agreed,
subject to the terms and conditions set forth in the Underwriting Agreement,
the form of which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part, to purchase 600,000 Preferred Securities from
Simmons Trust. The Underwriter has agreed in the Underwriting Agreement,
subject to the terms and conditions set forth therein, to purchase all the
Preferred Securities offered hereby if any of the Preferred Securities are
purchased.
The Underwriter has advised Simmons Trust that it proposes initially to
offer the Preferred Securities to the public at the public offering price set
forth on the cover page of this Prospectus, and to certain dealers at such
price less a concession not in excess of $ per Preferred Security. The
Underwriter may allow, and such dealers may reallow, a discount not in excess
of $ per Preferred Security to certain other dealers. After the initial
public offering, the public offering price, concession and discount may be
changed.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Debentures of the Company,
the Underwriting Agreement provides that the Company will pay as compensation
to the Underwriter arranging the investment therein of such proceeds, an amount
in immediately available funds of $ per Preferred Security (or $ in the
aggregate) for the accounts of the Underwriter.
Simmons Trust has granted the Underwriter an option to purchase up to an
additional 90,000 Preferred Securities at the initial public offering price.
Such option, which expires 30 days from the date of this Prospectus, may be
exercised solely to cover over-allotments. To the extent that the Underwriter
exercises its option to purchase additional Preferred Securities, Simmons Trust
will issue and sell to the Company additional Common Securities in such
aggregate Liquidation Amount as is required for the Company to continue to hold
Common Securities in an aggregate Liquidation Amount equal to at least 3% of
the total capital of Simmons Trust and the Company will issue and sell to
Simmons Trust Subordinated Debentures in an aggregate principal amount equal to
the total aggregate Liquidation Amount of the additional Preferred Securities
being purchased pursuant to the option.
During a period of 30 days from the date of this Prospectus, neither
Simmons Trust nor the Company will, subject to certain exceptions, without the
prior written consent of the Underwriters, directly or indirectly, sell, offer
to sell, grant any option for sale of, or otherwise dispose of, any Preferred
Securities, any security convertible into or exchangeable into or exercisable
for Preferred Securities or Subordinated Debentures or any debt securities
substantially similar to the Subordinated Debentures or equity securities
substantially similar to the Preferred Securities (except for Subordinated
Debentures and the Preferred Securities offered hereby).
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Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market. The Underwriter has
advised Simmons Trust that it presently intends to make a market in the
Preferred Securities after the commencement of trading on The Nasdaq Stock
Market's National Market, but no assurances can be made as to the liquidity of
such Preferred Securities or that an active and liquid trading market will
develop or, if developed, that it will continue. The offering price and
distribution rate have been determined by negotiations among representatives of
the Company and the Underwriter, and the offering price of the Preferred
Securities may not be indicative of the market price following the offering.
The Underwriter will have no obligation to make a market in the Preferred
Securities, however, and may cease market-making activities, if commenced, at
any time.
Simmons Trust and the Company have agreed to indemnify the Underwriter
against, or contribute to payments that the Underwriter may be required to make
in respect of, certain liabilities, including liabilities under the Securities
Act.
In order to facilitate the offering of the Preferred Securities, the
Underwriter may engage in transactions that stabilize, maintain or otherwise
affect the price of the Preferred Securities. Specifically, the Underwriter may
over-allot in connection with the offering, creating a short position in the
Preferred Securities for its own account. In addition, to cover over-allotments
or to stabilize the price of the Preferred Securities, the Underwriter may bid
for, and purchase, the Preferred Securities in the open market. The Underwriter
may reclaim selling concessions allowed to a dealer for distributing the
Preferred Securities in the offering, if the Underwriter repurchases previously
distributed Preferred Securities in transactions to cover short positions in
stabilization transactions or otherwise. Any of these activities may stabilize
or maintain the market price of the Preferred Securities above independent
market levels. The Underwriter is not required to engage in these activities,
and may end any of these activities at any time.
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VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Preferred
Securities, the enforceability of the Trust Agreement and the formation of
Simmons Trust will be passed upon by Richards, Layton & Finger, special
Delaware counsel to the Company and Simmons Trust. Certain legal matters for
the Company and Simmons Trust, including the validity of the Guarantee and the
Subordinated Debentures, will be passed upon for the Company and Simmons Trust
by Lewis, Rice & Fingersh, L.C., St. Louis, Missouri, counsel to the Company
and Simmons Trust. Certain legal matters will be passed upon for the
Underwriter by Bryan Cave LLP, St. Louis, Missouri. Counsel for the Company,
Simmons Trust and the Underwriter will rely on the opinion of Richards, Layton
& Finger as to matters of Delaware law. Certain matters relating to United
States federal income tax considerations will be passed upon for the Company by
Lewis, Rice & Fingersh, L.C.
EXPERTS
The audited consolidated financial statements of the Company and its
subsidiaries incorporated herein by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996 and the audited financial
statements of the FBAR and the FBAS incorporated herein by reference to the
Company's Current Report on Form 8-K, filed with the Securities and Exchange
Commission on June 6, 1997, have been audited by Baird, Kurtz and Dobson,
independent certified public accountants, as stated in their reports, which
reports are incorporated herein by reference and have been so incorporated in
reliance on the reports having been given upon the authority of said firm as
experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Company with the
Securities and Exchange Commission pursuant to Section 13 of the Exchange Act,
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997; and
(c) The Company's Current Report on Form 8-K, filed June 6, 1997.
All reports and any definitive proxy or information statements filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Preferred Securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER
THAN EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY
REFERENCE IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE
DIRECTED TO JOHN L. RUSH, SECRETARY, SIMMONS FIRST NATIONAL CORPORATION, 501
MAIN STREET, PINE BLUFF, ARKANSAS 71601. TELEPHONE REQUESTS MAY BE DIRECTED TO
(870) 541-1000.
50
<PAGE> 55
AVAILABLE INFORMATION
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and Simmons Trust with the Commission under
the Securities Act, with respect to the Preferred Securities, the Subordinated
Debentures and the Guarantee. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission,
although it does include a summary of the material terms of the Trust
Agreement, the Indenture and the Guarantee. Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company, Simmons Trust, the Preferred
Securities, the Subordinated Debentures and the Guarantee. Any statements
contained herein concerning the provisions of any document filed as an exhibit
to the Registration Statement or otherwise filed with the Commission or
incorporated by reference herein are not necessarily complete, and, in each
instance, reference is made to the copy of such document so filed for a more
complete description of the matter involved. Each such statement is qualified
in its entirety by such reference.
The Company is subject to the informational requirements of the Exchange
Act and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Simmons Trust is not currently subject to the
information reporting requirements of the Exchange Act and, although Simmons
Trust will become subject to such requirements upon the effectiveness of the
Registration Statement, it is not expected that Simmons Trust will be filing
separate reports under the Exchange Act. The Company's reports, proxy
statements and other information can be inspected and copies at the following
public reference facilities maintained by the Commission: 450 Fifth Street,
N.W., Washington, D.C. 20549; 7 World Trade Center, Suite 1300, New York, New
York 10048; and the Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material may also be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, upon payment of prescribed rates. The
Commission maintains in Internet web site that contains reports, proxy and
information statements and other information regarding issuers who file
electronically with the Commission. The address of that site is
http://www.sec.gov. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
No separate financial statements of Simmons Trust have been included
herein. The Company does not consider that such financial statements would be
material to holders of Preferred Securities because (i) all of the voting
securities of Simmons Trust will be owned by the Company, a reporting company
under the Exchange Act, (ii) Simmons Trust has no independent operations but
exists for the sole purpose of issuing securities representing undivided
beneficial interests in the assets of Simmons Trust and investing the proceeds
thereof in Subordinated Debentures issued by the Company, and (iii) the
obligations of the Company described herein to provide certain indemnities in
respect of and be responsible for certain costs, expenses, debts and
liabilities of Simmons Trust under the Indenture and pursuant to the Trust
Agreement, the guarantee issued by the Company with respect to the Preferred
Securities, the Subordinated Debentures purchased by Simmons Trust and the
related Indenture, taken together, constitute, in the belief of the Company and
Simmons Trust, a full and unconditional guarantee of payments due on the
Preferred Securities. See "Description of the Subordinated Debentures" and
"Description of the Guarantee."
51
<PAGE> 56
<TABLE>
- ----------------------------------------------------------------------------------------
TABLE OF CONTENTS
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary.............................................................. 2
Summary Consolidated Financial Data............................................. 9
Summary Pro Forma Consolidated Financial Data................................... 10
Risk Factors.................................................................... 11
Use of Proceeds................................................................. 16
Market for the Preferred Securities............................................. 16
Accounting Treatment............................................................ 16
Capitalization.................................................................. 17
Pro Forma Consolidated Financial Statements..................................... 18
Description of the Preferred Securities......................................... 24
Description of the Subordinated Debentures...................................... 33
Description of the Guarantee.................................................... 41
Relationship Among the Preferred Securities, the Subordinated Debentures and the
Guarantee..................................................................... 43
Certain Federal Income Tax Consequences......................................... 44
ERISA Considerations............................................................ 48
Underwriting.................................................................... 48
Validity of Securities.......................................................... 50
Experts......................................................................... 50
Incorporation of Certain Documents by Reference................................. 50
Available Information........................................................... 51
</TABLE>
------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
SIMMONS FIRST NATIONAL CORPORATION, SIMMONS FIRST CAPITAL TRUST OR THE
UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF SIMMONS FIRST NATIONAL CORPORATION SINCE THE DATE
HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES IN ANY CIRCUMSTANCES IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
[LOGO]
600,000 PREFERRED SECURITIES
SIMMONS FIRST
CAPITAL TRUST
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED, AS DESCRIBED HEREIN, BY
SIMMONS FIRST
NATIONAL CORPORATION
------------------------
$15,000,000
% SUBORDINATED DEBENTURES
OF
SIMMONS FIRST
NATIONAL CORPORATION
------------------------
Prospectus
, 1997
------------------------
STIFEL, NICOLAUS & COMPANY
INCORPORATED
- -------------------------------------------------------------------------------
<PAGE> 57
PART II--INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14--OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC Registration Fee....................................................... $ 5,228
NASD Filing Fee............................................................ 2,225
Nasdaq Listing Fee......................................................... 3,500
Blue Sky Qualification Fees and Expenses................................... 3,000
Accounting Fees and Expenses............................................... 87,500
Legal Fees and Expenses.................................................... 95,000
Trustees' Fees and Expenses................................................ 15,000
Printing and Engraving Expenses............................................ 25,000
Transfer and Registrar Fees................................................ 2,000
Miscellaneous.............................................................. 11,522
--------
Total.................................................................. $250,000
========
</TABLE>
ITEM 15--INDEMNIFICATION OF DIRECTORS AND OFFICERS
Arkansas Code Annotated 4-26-814 (the "Arkansas Code") provides as
follows:
(a) (1) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending, or
completed actions, suit, or proceeding, whether civil, criminal,
administrative, or investigative, other than an action by or in the right of
the corporation by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses, including attorneys' fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with the
action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
(2) The termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against expenses, including attorneys' fees, actually and reasonably incurred
by him in connection with the defense or settlement of the action or suit if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation. No indemnification shall be
made, however, in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable for negligence or misconduct in
the performance of his duty 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, despite the adjudication of liability but in view of all
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
II-1
<PAGE> 58
(c) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in subsections (a) or (b) of this
section or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) or (b) of this section,
unless ordered by a court, shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he has met
the applicable standards of conduct set forth in subsections (a) or (b) of this
section. The determination shall be made by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to the
action, suit, or proceeding, or, if such a quorum is not obtainable, or even if
obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or by the shareholders.
(e) Expenses, including attorneys' fees, incurred in defending a civil or
criminal action, suit, or proceeding may be paid by the corporation in advance
of the final disposition of the action, suit, or proceeding as authorized in
the manner provided in subsection (d) of this section upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay that amount unless it shall ultimately be determined that he is entitled
to be indemnified by the corporation as authorized in this section.
(f) The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any bylaw, agreement, vote of shareholders, or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office, and shall continue as to a person who
has ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against any liability asserted
against him and incurred by him in any capacity or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against liability under the provisions of this section.
(h) The powers and duties of a corporation to indemnify any person under
this section shall apply with equal force whether an action, suit, or
proceeding is threatened or commenced in this state or outside this state.
(i) This section shall apply to any action, suit, proceeding threatened or
commenced prior to February 12, 1973, which had not been finally disposed or
prior to February 12, 1973, and also shall apply to any action, suit, or
proceeding threatened or commenced after February 12, 1973, but which is based
in whole or in part on actions that occurred prior to February 12, 1973.
The Registrant's Articles of Incorporation and Bylaws extend
indemnification rights to its directors and officers to the fullest extent
authorized by the Arkansas Code. In addition, the Articles of Incorporation and
Bylaws permit the Registrant to maintain insurance to protect itself and any of
its directors, officers or representatives against any liability asserted
against such person and incurred in any such capacity or arising out of such
status whether or not the Registrant would have the power to indemnify such
person under the Arkansas Code.
II-2
<PAGE> 59
ITEM 16--EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
(a) Exhibits
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture.
4.2 Form of Subordinated Debenture (included as an exhibit of Exhibit 4.1).
4.3 Certificate of Trust of Simmons First Capital Trust.
4.4 Trust Agreement of Simmons First Capital Trust.
4.5 Form of Amended and Restated Trust Agreement.
4.6 Form of Preferred Security Certificate (included as an exhibit to Exhibit 4.5).
4.7 Form of Preferred Securities Guarantee Agreement.
4.8 Form of Agreement as to Expenses and Liabilities (included as an exhibit to
Exhibit 4.5).
5.1 Opinion of Lewis, Rice & Fingersh, L.C., as to the validity of the issuance of
the Subordinated Debentures.
5.2 Opinion of Richards, Layton & Finger, special Delaware counsel, as to the
legality of the Preferred Securities.
8.1 Opinion of Lewis, Rice & Fingersh, L.C., as to certain federal income tax
matters.
12.1 Statements Regarding Computation of Ratio of Earnings to Fixed Charges.
15.1 Letter Regarding Unaudited Interim Financial Information.
23.1 Consent of Baird, Kurtz and Dobson, Independent Accountants.
23.2 Consent of Baird, Kurtz and Dobson, Independent Accountants.
23.3 Consent of Lewis, Rice & Fingersh, L.C. (included in their opinion filed
herewith as Exhibits 5.1 and 8.1).
23.4 Consent of Richards, Layton & Finger (included in their opinion filed herewith
as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page).
25.1 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act
as trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act
as trustee under the Amended and Restated Trust Agreement.
25.3 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act
as trustee under the Preferred Securities Guarantee Agreement.
</TABLE>
(b) Financial Statement Schedules--Not applicable as all required
information is contained in the financial statements and the notes thereto or
in the selected financial data.
ITEM 17--UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, (the "Act") may be permitted to directors, officers and
controlling persons of the Company pursuant to the provisions described under
"Item 15--Indemnification of Directors and Officers" above, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Company hereby undertakes that: (1) For purposes of determining any
liability under the Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Company pursuant to Rule
424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and (2) For
the purpose of determining any liability under the Act, each post-effective
amendment that contains a form of prospectus 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.
II-3
<PAGE> 60
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
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 Pine Bluff, Arkansas on May 29, 1997.
SIMMONS FIRST NATIONAL CORPORATION
By: /s/ J. THOMAS MAY
------------------------------------
J. Thomas May
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of Securities Act of 1933, the undersigned
registrant certifies that it has reasonable grounds to believe that it meets
all 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 Pine Bluff, Arkansas on May 29, 1997.
SIMMONS FIRST CAPITAL TRUST
By: /s/ J. THOMAS MAY
----------------------------------
J. Thomas May, Trustee
By: /s/ BARRY L. CROW
----------------------------------
Barry L. Crow, Trustee
By: /s/ JOHN L. RUSH
----------------------------------
John L. Rush, Trustee
II-4
<PAGE> 61
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. Thomas May, Donald W. Stone, Barry L. Crow
and John L. Rush and each of them (with full power to each of them to act
alone), his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, including any Registration
Statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ J. THOMAS MAY Chairman of the Board, President and Chief Executive May 29, 1997
-------------------------- Officer (Principal Executive Officer)
J. Thomas May
/s/ BARRY L. CROW Executive Vice President and Chief Financial Officer, May 29, 1997
-------------------------- (Printipal Financial and
Barry L. Crow Accounting Officer)
/s/ W. E. AYRES Director May 29, 1997
--------------------------
W. E. Ayres
/s/ BEN V. FLORIANI Director May 29, 1997
--------------------------
Ben V. Floriani
/s/ C. RAMON GREENWOOD Director May 29, 1997
--------------------------
C. Ramon Greenwood
/s/ LARA F. HUTT, III Director May 29, 1997
--------------------------
Lara F. Hutt, III
/s/ GEORGE MAKRIS, JR. Director May 29, 1997
--------------------------
George Makris, Jr.
/s/ DAVID R. PERDUE Director May 29, 1997
--------------------------
David R. Perdue
/s/ HARRY L. RYBURN Director May 29, 1997
--------------------------
Harry L. Ryburn
/s/ DONALD W. STONE Director May 29, 1997
--------------------------
Donald W. Stone
Director , 1997
--------------------------
Henry F. Trotter, Jr.
</TABLE>
II-5
<PAGE> 62
<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Form of Indenture.
4.2 Form of Subordinated Debenture (included as an exhibit to Exhibit 4.1).
4.3 Certificate of Trust of Simmons First Capital Trust.
4.4 Trust Agreement of Simmons First Capital Trust.
4.5 Form of Amended and Restated Trust Agreement.
4.6 Form of Preferred Security Certificate (included as an exhibit to Exhibit 4.5).
4.7 Form of Preferred Securities Guarantee Agreement.
4.8 Form of Agreement as to Expenses and Liabilities (included as an exhibit to
Exhibit 4.5).
5.1 Opinion of Lewis, Rice & Fingersh, L.C., as to the validity of the issuance of
the Subordinated Debentures.
5.2 Opinion of Richards, Layton & Finger, special Delaware counsel, as to the
legality of the Preferred Securities.
8.1 Opinion of Lewis, Rice & Fingersh, L.C., as to certain federal income tax
matters.
12.1 Statements Regarding Computation of Ratio of Earnings to Fixed Charges.
15.1 Letter Regarding Unaudited Interim Financial Information.
23.1 Consent of Baird, Kurtz and Dobson, Independent Accountants.
23.2 Consent of Baird, Kurtz and Dobson, Independent Accountants.
23.3 Consent of Lewis, Rice & Fingersh, L.C. (included in their opinion filed
herewith as Exhibits 5.1 and 8.1).
23.4 Consent of Richards, Layton & Finger (included in their opinion filed herewith
as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page).
25.1 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act
as trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act
as trustee under the Amended and Restated Trust Agreement.
25.3 Form T-1 Statement of Eligibility of State Street Bank and Trust Company to act
as trustee under the Preferred Securities Guarantee Agreement.
</TABLE>
II-6
<PAGE> 1
600,000 Preferred Securities
Simmons First Capital Trust
---% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
--------------, 1997
STIFEL, NICOLAUS & COMPANY, INCORPORATED
500 North Broadway
St. Louis, Missouri 63102
Dear Ladies and Gentlemen:
Simmons First National Corporation, an Arkansas
corporation (the "Company"), and its financing subsidiary,
Simmons First Capital Trust, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the
"Offerors"), propose that the Trust issue and sell to Stifel,
Nicolaus & Company, Incorporated (sometimes referred to herein as
the "Underwriter"), pursuant to the terms of this Agreement,
600,000 of the Trust's ---% Cumulative Trust Preferred
Securities, with a liquidation amount of $25.00 per preferred
security (the "Preferred Securities"), to be issued under the
Trust Agreement (as hereinafter defined), the terms of which are
more fully described in the Prospectus (as hereinafter defined).
The aforementioned 600,000 Preferred Securities to be sold to the
Underwriter are herein called the "Firm Preferred Securities."
Solely for the purpose of covering over-allotments in the sale of
the Firm Preferred Securities, the Offerors further propose that
the Trust issue and sell to the Underwriter, at its option, up to
an additional 90,000 Preferred Securities (the "Option Preferred
Securities") upon exercise of the over-allotment option granted
in Section 1 hereof. The Firm Preferred Securities and any
Option Preferred Securities are herein collectively referred to
as the "Designated Preferred Securities."
The Offerors hereby confirm as follows their agreement
with you in connection with the proposed purchase of the
Designated Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED
---------------------------------------------------
SECURITIES; DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
- -----------------------------------------------------------
(a) On the basis of the representations, warranties
and agreements herein contained, and subject to the terms and
conditions herein set forth, the Offerors hereby agree that the
Trust shall issue and sell to the Underwriter and the Underwriter
agrees to purchase from the Trust, at a purchase price of $25.00
per share (the "Purchase Price"), the Firm Preferred Securities.
Because the proceeds from the sale of the Firm Preferred
Securities will be used to
<PAGE> 2
purchase from the Company its Debentures (as hereinafter defined
and as described in the Prospectus), the Company shall pay to the
Underwriter a commission of $----- per Firm Preferred Security
purchased (the "Firm Preferred Securities Commission").
In addition, on the basis of the representations,
warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Trust hereby grants to
the Underwriter an option to purchase all or any portion of the
90,000 Option Preferred Securities, and upon the exercise of such
option in accordance with this Section 1, the Offerors hereby
agree that the Trust shall issue and sell to the Underwriter all
or any portion of the Option Preferred Securities at the same
Purchase Price per share paid for the Firm Preferred Securities.
Because the proceeds from the sale of the Option Preferred
Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriter a commission
of $----- per Option Preferred Security for each Option Preferred
Security purchased (the "Option Preferred Securities
Commission"). The option hereby granted (the "Option") shall
expire 30 days after the date upon which the Registration
Statement (as hereinafter defined) becomes effective and may be
exercised only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of
the Firm Preferred Securities. The Option may be exercised in
whole or in part at any time (but not more than once) by the
Underwriter giving notice (confirmed in writing) to the Trust
setting forth the number of Option Preferred Securities as to
which the Underwriter is exercising the Option and the time, date
and place for payment and delivery of certificates for such
Option Preferred Securities. Such time and date of payment and
delivery for the Option Preferred Securities (the "Option Closing
Date") shall be determined by the Underwriter, but shall not be
earlier than two nor later than five full business days after the
exercise of such Option, nor in any event prior to the Closing
Date (as hereinafter defined). The Option Closing Date may be
the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred
Securities Commission and delivery of certificates for the Firm
Preferred Securities shall be made at the Underwriter's offices,
located at 500 North Broadway, St. Louis, Missouri 63102, or such
other place as shall be agreed to by the Underwriter and the
Offerors, at 10:00 a.m., St. Louis time, on --------, 1997, or at
such other time not more than five full business days thereafter
as the Offerors and the Underwriter shall determine (the "Closing
Date"). If the Underwriter exercises the option to purchase any
or all of the Option Preferred Securities, payment of the
Purchase Price and Option Preferred Securities Commission and
delivery of certificates for such Option Preferred Securities
shall be made on the Option Closing Date at the Underwriter's
offices, or at such other place as the Offerors and the
Underwriter shall determine. Such payments shall be made to an
account designated by the Trust by wire transfer or certified or
bank cashier's check, in same day funds, in the amount of the
Purchase Price therefor, against delivery by or on behalf of the
Trust to the Underwriter of certificates for the Designated
Preferred Securities to be purchased by the Underwriter.
The Agreement contained herein with respect to the
timing of the Closing Date and Option Closing Date is intended
to, and does, constitute an express agreement, as described in
Rule 15c6-1(c) and (d) promulgated under the 1934 Act (as defined
herein), for a settlement date other than four business days
after the date of the contract.
2
<PAGE> 3
Certificates for Designated Preferred Securities to be
purchased by the Underwriter shall be delivered by the Offerors
in fully registered form in such authorized denominations and
registered in such names as the Underwriter shall request in
writing not later than 12:00 noon, St. Louis time, two business
days prior to the Closing Date and, if applicable, the Option
Closing Date. Certificates for Designated Preferred Securities
to be purchased by the Underwriter shall be made available by the
Offerors to the Underwriter for inspection, checking and
packaging at such office as the Underwriter may designate in
writing not later than 1:00 p.m., St. Louis time, on the last
business day prior to the Closing Date and, if applicable, on the
last business day prior to the Option Closing Date.
Time shall be of the essence, and delivery of the
certificates for the Designated Preferred Securities at the time
and place specified pursuant to this Agreement is a further
condition of the Underwriter's obligations hereunder.
(b) The Offerors propose that the Trust issue the
Designated Preferred Securities pursuant to an Amended and
Restated Trust Agreement among State Street Bank and Trust
Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein,
(collectively, the "Trustees"), and the Company, in substantially
the form heretofore delivered to the Underwriter, said Agreement
being hereinafter referred to as the "Trust Agreement." In
connection with the issuance of the Designated Preferred
Securities, the Company proposes (i) to issue its Subordinated
Debentures ( the "Debentures") pursuant to an Indenture, to be
dated as of --------, 1997, between the Company and State Street
Bank and Trust Company, as Trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities
pursuant to a Guarantee Agreement between the Company and State
Street Bank and Trust Company, as guarantee trustee (the
"Guarantee"), to the extent described therein.
2. REPRESENTATIONS AND WARRANTIES.
------------------------------
(a) The Offerors jointly and severally represent and
warrant to, and agree with, the Underwriter that:
(i) The reports filed with the Securities and
Exchange Commission (the "Commission") by the Company under
the Securities Exchange Act of 1934, as amended (the "1934
Act") and the rules and regulations thereunder (the "1934
Act Regulations") at the time they were filed with the
Commission, complied as to form in all material respects
with the requirements of the 1934 Act and the 1934 Act
Regulations and did not contain an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were
made, not misleading.
(ii) The Offerors have prepared and filed with the
Commission a registration statement on Form S-3 (File
Numbers 333------ and 333-------01) for the registration of
the Designated Preferred Securities, the Guarantee and
$17,250,000 aggregate principal amount of Debentures under
the Securities Act of 1933, as amended (the "1933 Act"),
including the related prospectus subject to completion, and
one or more amendments to such registration statement may
have been so filed, in each case in
3
<PAGE> 4
conformity in all material respects with the requirements of
the 1933 Act, the rules and regulations promulgated thereunder
(the "1933 Act Regulations") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and
regulations thereunder. Copies of such registration
statement, including any amendments thereto, each
Preliminary Prospectus (as defined herein) contained therein
and the exhibits, financial statements and schedules to such
registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the
Underwriter. After the execution of this Agreement, the
Offerors will file with the Commission (A) if such
registration statement, as it may have been amended, has
been declared by the Commission to be effective under the
1933 Act, a prospectus in the form most recently included in
an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration
statement), with such changes or insertions as are required
by Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by
the Underwriter prior to (or as are agreed to by the
Underwriter subsequent to) the execution of this Agreement,
or (B) if such registration statement, as it may have been
amended, has not been declared by the Commission to be
effective under the 1933 Act, an amendment to such
registration statement, including a form of final
prospectus, necessary to permit such registration statement
to become effective, a copy of which amendment has been
furnished to and not objected to by the Underwriter prior to
(or is agreed to by the Underwriter subsequent to) the
execution of this Agreement. As used in this Agreement, the
term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared
effective under the 1933 Act, including (1) all financial
schedules and exhibits thereto, (2) all documents (or
portions thereof) incorporated by reference therein filed
under the 1934 Act, and (3) any information omitted
therefrom pursuant to Rule 430A and included in the
Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion
filed with such registration statement or any amendment
thereto including all documents (or portions thereof)
incorporated by reference therein under the 1934 Act
(including the prospectus subject to completion, if any,
included in the Registration Statement and each prospectus
filed pursuant to Rule 424(a) under the 1933 Act); and the
term "Prospectus" means the prospectus first filed with the
Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule
424(b)(1) or (4), the prospectus included in the
Registration Statement, in each case including the financial
schedules and all documents (or portions thereof)
incorporated by reference therein under the 1934 Act. The
date on which the Registration Statement becomes effective
is hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in
the Preliminary Prospectus or Prospectus or from which
information is so incorporated by reference, when they
became effective or were filed with the Commission, as the
case may be, complied in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations,
and when read together and with the other information in the
Preliminary Prospectus or Prospectus, as the case may be, at
the time the Registration Statement became or becomes
effective and at the Closing Date and any Option Closing
Date, did not or will not, as the case may be, contain an
untrue statement of a material fact or omit
4
<PAGE> 5
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) has been issued by
the Commission, nor has the Commission, to the knowledge of
the Offerors, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary
Prospectus, at the time of filing thereof, (A) complied in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and (B) did not contain an
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; provided,
--------
however, that this representation and warranty does not
-------
apply to statements or omissions made in reliance upon and
in conformity with information furnished in writing to the
Offerors by the Underwriter expressly for inclusion in the
Prospectus beneath the heading "Underwriting" and the last
sentence on the cover page of the Prospectus (such
information referred to herein as the "Underwriter's
Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date
and, if applicable, the Option Closing Date, the
Registration Statement and any post-effective amendment
thereto (A) complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations and the Trust Indenture Act (and the rules and
regulations thereunder) and (B) did not and will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein, not misleading. At the
Effective Date and at all times when the Prospectus is
required to be delivered in connection with offers and sales
of Designated Preferred Securities, including, without
limitation, the Closing Date and, if applicable, the Option
Closing Date, the Prospectus, as amended or supplemented,
(A) complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act
Regulations and the Trust Indenture Act (and the rules and
regulations thereunder) and (B) did not contain and will not
contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty
-------- -------
does not apply to Underwriter's Information.
(vi) (A) The Company is duly organized, validly
existing and in good standing under the laws of the State of
Arkansas, with full corporate and other power and authority
to own, lease and operate its properties and conduct its
business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted and is duly
registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act").
(B) The Trust has been duly created and is
validly existing as a statutory business trust in good
standing under the Delaware Business Trust Act with the
power and authority (trust and other) to own its property
and conduct its business as
5
<PAGE> 6
described in the Registration Statement and Prospectus, to
issue and sell its common securities (the "Common Securities")
to the Company pursuant to the Trust Agreement, to issue and
sell the Designated Preferred Securities, to enter into and
perform its obligations under this Agreement and to consummate
the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and
is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Trust; the Trust has
conducted and will conduct no business other than the
transactions contemplated by this Agreement and described in
the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust
Agreement and the agreements and instruments contemplated by
the Trust Agreement and described in the Prospectus; the
Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the
Prospectus; the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is not,
and at the Closing Date or any Option Closing Date will not
be, to the knowledge of the Offerors, classified as a
business entity taxable as a corporation for United States
federal income tax purposes; and the Trust is, and as of the
Closing Date or any Option Closing Date will be, treated as
a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) The Company has 6 subsidiaries. They are
listed on Exhibit A attached hereto and incorporated herein
---------
(the "Subsidiaries"). The Company does not own or control,
directly or indirectly, more than 5% of any class of equity
security of any corporation, association or other entity other
than the Subsidiaries. Simmons First National Bank is
referred to as the "Bank." Each Subsidiary is a bank,
corporation or business trust duly organized, validly existing
and in good standing under the laws of its respective
jurisdiction of incorporation. Each such Subsidiary has full
corporate and other power and authority to own, lease and
operate its properties and to conduct its business as
described in and contemplated by the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) and as currently being
conducted. The deposit accounts of the Bank are insured by
the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum amount
provided by law; and no proceedings for the modification,
termination or revocation of any such insurance are pending
or, to the knowledge of the Offerors, threatened.
(viii) The Company and each of the Subsidiaries
is duly qualified to transact business as a foreign
corporation and is in good standing in each other
jurisdiction in which it owns or leases property or conducts
its business so as to require such qualification and in
which the failure to so qualify would, individually or in
the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business,
prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis. All of the issued and
outstanding shares of capital stock of the Subsidiaries (A)
have been duly authorized and are validly issued, (B) are
fully paid and nonassessable except to the extent such
shares may be deemed assessable under 12
6
<PAGE> 7
U.S.C. Section 55 or 12 U.S.C. Section 1831o, and (C) except
as disclosed in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), are
directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, restriction
upon voting or transfer, preemptive rights, claim or equity.
Except as disclosed in the Prospectus, there are no
outstanding rights, warrants or options to acquire or
instruments convertible into or exchangeable for any capital
stock or equity securities of the Offerors or the
Subsidiaries.
(ix) The capital stock of the Company and the
equity securities of the Trust conform to the description
thereof contained in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized
and validly issued and are fully paid and nonassessable, and
no such shares were issued in violation of the preemptive or
similar rights of any security holder of an Offeror; no
person has any preemptive or similar right to purchase any
shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Offerors, and
there are no outstanding securities convertible into or
exchangeable for any such securities and no restrictions
upon the voting or transfer of any capital stock of the
Company or equity securities of the Trust pursuant to the
Company's corporate charter or bylaws, the Trust Agreement
or any agreement or other instrument to which an Offeror is
a party or by which an Offeror is bound.
(x) (A) The Trust has all requisite power and
authority to issue, sell and deliver the Designated
Preferred Securities in accordance with and upon the terms
and conditions set forth in this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action
required to be taken by the Offerors for the authorization,
issuance, sale and delivery of the Designated Preferred
Securities in accordance with such terms and conditions has
been validly and sufficiently taken. The Designated
Preferred Securities, when delivered in accordance with this
Agreement, will be duly and validly issued and outstanding,
will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to
the benefits of the Trust Agreement, will not be issued in
violation of or subject to any preemptive or similar rights,
and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Trust Agreement. None of the Designated
Preferred Securities, immediately prior to delivery, will be
subject to any security interest, lien, mortgage, pledge,
encumbrance, restriction upon voting or transfer, preemptive
rights, claim, equity or other defect.
(B) The Debentures have been duly and
validly authorized, and, when duly and validly executed,
authenticated and issued as provided in the Indenture and
delivered to the Trust pursuant to the Trust Agreement, will
constitute valid and
7
<PAGE> 8
legally binding obligations of the Company entitled to the
benefits of the Indenture and will conform to the description
thereof contained in the Prospectus.
(C) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and
delivered to the guarantee trustee for the benefit of the
Trust, will constitute a valid and legally binding
obligation of the Company and will conform to the
description thereof contained in the Prospectus.
(D) The Agreement as to Expenses and
Liabilities (the "Expense Agreement") has been duly and
validly authorized, and, when duly and validly executed and
delivered by the Company, will constitute a valid and
legally binding obligation of the Company and will conform
to the description thereof contained in the Prospectus.
(xi) The Offerors and the Subsidiaries have
complied in all material respects with all federal, state
and local statutes, regulations, ordinances and rules
applicable to the ownership and operation of their
properties or the conduct of their businesses as described
in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and as currently being
conducted.
(xii) The Offerors and the Subsidiaries have
all material permits, easements, consents, licenses,
franchises and other governmental and regulatory
authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own
and lease their properties and conduct their businesses in
the manner described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as
currently being conducted in all material respects. All
such Permits are in full force and effect and each of the
Offerors and the Subsidiaries are in all material respects
complying therewith, and no event has occurred that allows,
or after notice or lapse of time would allow, revocation or
termination thereof or will result in any other material
impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be
adequately disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Such Permits contain no restrictions that
would materially impair the ability of the Company or the
Subsidiaries to conduct their businesses in the manner
consistent with their past practices. Neither the Offerors
nor any of the Subsidiaries have received notice or
otherwise has knowledge of any proceeding or action relating
to the revocation or modification of any such Permit.
(xiii) Neither of the Offerors nor any of the
Subsidiaries is in breach or violation of their corporate
charter, by-laws or other governing documents (including
without limitation, the Trust Agreement) in any material
respect. Neither of the Offerors nor any of the
Subsidiaries are, and to the knowledge of the Offerors no
other party is, in violation, breach or default (with or
without notice or lapse of time or both) in the performance
or observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any
other agreement or
8
<PAGE> 9
instrument to which it is a party or by which it or any of its
properties may be bound, which such breach, violation or
default could have material adverse consequences to the
Offerors and the Subsidiaries on a consolidated basis, and to
the knowledge of the Offerors, no other party has asserted
that the Offerors or any of the Subsidiaries is in such
violation, breach or default (provided that the foregoing
shall not apply to defaults by borrowers from the Bank), or
(B) except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), any order, decree, judgment, rule or regulation
of any court, arbitrator, government, or governmental agency
or instrumentality, domestic or foreign, having jurisdiction
over the Offerors or the Subsidiaries or any of their
respective properties the breach, violation or default of
which could have a material adverse effect on the condition,
financial or otherwise, earnings, affairs, business,
prospects, or results of operations of the Offerors and the
Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated by this Agreement, the Trust Agreement, the
Registration Statement and the Prospectus (or, if the
Prospectus in not in existence, the most recent Preliminary
Prospectus) do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of
the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, constitute a breach or violation of,
or constitute a default under, with or without notice or
lapse of time or both, any of the terms, provisions or
conditions of the charter or by-laws of the Company or the
Subsidiaries, the Trust Agreement, the Guarantee, the
Indenture, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license,
Permit or any other agreement or instrument to which the
Offerors or the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound or
any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction
over the Offerors or the Subsidiaries or any of their
respective properties which conflict, creation, imposition,
breach, violation or default would have either singly or in
the aggregate a material adverse effect on the condition,
financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of or filing, registration or
qualification with, any person (including, without
limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by
this Agreement, the Trust Agreement, the Indenture, the
Guarantee, the Registration Statement and the Prospectus,
except such as have been obtained under the 1933 Act, the
Trust Indenture Act and from the Nasdaq Stock Market's
National Market relating to the listing of the Designated
Preferred Securities, and such as may be required under
state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the
Designated Preferred Securities by the Underwriter.
(xv) The Offerors have all requisite corporate
power and authority to enter into this Agreement and this
Agreement has been duly and validly authorized,
9
<PAGE> 10
executed and delivered by the Offerors and constitutes the
legal, valid and binding agreement of the Offerors,
enforceable against the Offerors in accordance with its terms,
except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating
to or affecting creditors' rights generally and except as any
indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the
Indenture, the Trust Agreement, the Guarantee and the
Expense Agreement has been duly authorized by the Company,
and, when executed and delivered by the Company on the
Closing Date, each of said agreements will constitute a
valid and legally binding obligation of the Company and will
be enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy or other laws
relating to or affecting creditors' rights generally and
except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement and the Guarantee
has been duly qualified under the Trust Indenture Act and
will conform to the description thereof contained in the
Prospectus.
(xvi) The Company and the Subsidiaries have
good and marketable title in fee simple to all real property
and good title to all personal property owned by them and
material to their business, in each case free and clear of
all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other
defects except such as are referred to in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or such as do not materially affect
the value of such property in the aggregate and do not
materially interfere with the use made or proposed to be
made of such property; and all of the leases under which the
Company or the Subsidiaries hold real or personal property
are valid, existing and enforceable leases and in full force
and effect with such exceptions as are not material and do
not materially interfere with the use made or proposed to be
made of such real or personal property, and neither the
Company nor any of the Subsidiaries is in default in any
material respect of any of the terms or provisions of any
leases.
(xvii) Baird, Kurtz & Dobson, who have
certified certain of the consolidated financial statements
of the Company and the Subsidiaries including the notes
thereto, included in the Registration Statement and
Prospectus, are independent public accountants with respect
to the Company and the Subsidiaries, as required by the 1933
Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements
including the notes thereto, included by incorporation by
reference or otherwise in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) with respect to the
Company and the Subsidiaries, comply in all material
respects with the 1933 Act and the 1933 Act Regulations and
present fairly the consolidated financial position of the
Company and the Subsidiaries as of the dates indicated and
the consolidated results of operations, cash flows and
shareholders' equity of the Company and the Subsidiaries for
the periods specified and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis. The selected and summary consolidated
financial data concerning the Offerors and the
10
<PAGE> 11
Subsidiaries included in the Registration Statement and the
Prospectus (or such Preliminary Prospectus) comply in all
material respects with the 1933 Act and the 1933 Act
Regulations, present fairly the information set forth therein,
and have been compiled on a basis consistent with that of the
consolidated financial statements of the Offerors and the
Subsidiaries in the Registration Statement and the
Prospectus (or such Preliminary Prospectus). The other
financial, statistical and numerical information included in
the Registration Statement and the Prospectus (or such
Preliminary Prospectus) comply in all material respects with
the 1933 Act and the 1933 Act Regulations, present fairly
the information shown therein, and to the extent applicable
have been compiled on a basis consistent with the
consolidated financial statements of the Company and the
Subsidiaries included in the Registration Statement and the
Prospectus (or such Preliminary Prospectus).
(xix) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), except as otherwise
stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries have sustained any loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action,
order or decree which is material to the condition
(financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the
Subsidiaries on a consolidated basis;
(B) there has not been any material adverse
change in, or any development which is reasonably
likely to have a material adverse effect on, the
condition (financial or otherwise), earnings, business,
prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis, whether or
not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the
Subsidiaries have incurred any liabilities or
obligations, direct or contingent, or entered into any
material transactions, other than in the ordinary
course of business which is material to the condition
(financial or otherwise), earnings, business, prospects
or results of operations of the Offerors and the
Subsidiaries on a consolidated basis;
(D) neither of the Offerors have declared or
paid any dividend, and neither of the Offerors nor any
of the Subsidiaries have become delinquent in the
payment of principal or interest on any outstanding
borrowings; and
(E) there has not been any change in the
capital stock, equity securities, long-term debt,
obligations under capital leases or, other than in the
ordinary course of business, short-term borrowings of
the Offerors or the Subsidiaries.
(xx) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary
11
<PAGE> 12
Prospectus), no charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors,
threatened, against or affecting the Offerors or the
Subsidiaries or any of their respective properties before or
by any court or any regulatory, administrative or governmental
official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision,
ruling or finding could have a material adverse effect on the
consummation of this Agreement or the transactions
contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis or which is required to be disclosed
in the Registration Statement or the Prospectus (or such
Preliminary Prospectus) and is not so disclosed.
(xxi) There are no contracts or other
documents required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act
Regulations or the Trust Indenture Act (or any rules or
regulations thereunder) which have not been filed as
exhibits or incorporated by reference to the Registration
Statement, or that are required to be summarized in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) that are not so
summarized.
(xxii) Neither of the Offerors has taken,
directly or indirectly, any action designed to result in or
which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the
price of any security of the Offerors to facilitate the sale
or resale of the Designated Preferred Securities, and
neither of the Offerors is aware of any such action taken or
to be taken by any affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own,
or possess adequate rights to use, all patents, copyrights,
trademarks, service marks, trade names and other rights
necessary to conduct the businesses now conducted by them in
all material respects or as described in the Prospectus (or,
if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Offerors nor the
Subsidiaries have received any notice of infringement or
conflict with asserted rights of others with respect to any
patents, copyrights, trademarks, service marks, trade names
or other rights which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis, and the Offerors do
not know of any basis for any such infringement or conflict.
(xxiv) Except as adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), no labor dispute
involving the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which might be
expected to have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to
be disclosed in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
Neither the Company nor any of the Subsidiaries have
received notice of any existing or threatened labor dispute
by the employees of any of its principal suppliers,
customers or contractors which might be expected to have a
material adverse
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<PAGE> 13
effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xxv) The Offerors and the Subsidiaries have
timely and properly prepared and filed all necessary
federal, state, local and foreign tax returns which are
required to be filed and have paid all taxes shown as due
thereon and have paid all other taxes and assessments to the
extent that the same shall have become due, except such as
are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a
material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis. The Offerors have no knowledge of
any tax deficiency which has been or might be assessed
against the Offerors or the Subsidiaries which, if the
subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Subsidiaries
on a consolidated basis.
(xxvi) Each of the material contracts,
agreements and instruments described or referred to in the
Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and each contract, agreement and instrument
filed as an exhibit to the Registration Statement is in full
force and effect and is the legal, valid and binding
agreement of the Offerors or the Subsidiaries, enforceable
in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting
creditors' rights generally. Except as disclosed in the
Prospectus (or such Preliminary Prospectus), to the
knowledge of the Offerors, no other party to any such
agreement is (with or without notice or lapse of time or
both) in breach or default in any material respect
thereunder.
(xxvii) No relationship, direct or indirect,
exists between or among the Offerors or the Subsidiaries, on
the one hand, and the directors, officers, trustees,
shareholders, customers or suppliers of the Offerors or the
Subsidiaries, on the other hand, which is required to be
described in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) which is not adequately described
therein.
(xxviii) No person has the right to request or
require the Offerors or the Subsidiaries to register any
securities for offering and sale under the 1933 Act by
reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Designated
Preferred Securities except as adequately disclosed in the
Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xxix) The Designated Preferred Securities have
been approved for quotation on the Nasdaq Stock Market's
National Market subject to official notice of issuance.
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<PAGE> 14
(xxx) Except as described in or contemplated
by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there
are no contractual encumbrances or restrictions or material
legal restrictions required to be described therein, on the
ability of the Subsidiaries (A) to pay dividends or make any
other distributions on its capital stock or to pay any
indebtedness owed to the Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to
transfer any of its property or assets to the Offerors.
(xxxi) Neither of the Offerors is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company
Act").
(xxxii) The Offerors have not distributed and
will not distribute prior to the Closing Date any prospectus
in connection with the Offering, other than a Preliminary
Prospectus, the Prospectus, the Registration Statement and
the other materials permitted by the 1933 Act and the 1933
Act Regulations and reviewed by the Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration
---------------------------
Statement becomes effective or, if the Registration Statement is
already effective, after this Agreement becomes effective, the
Underwriter proposes to offer the Firm Preferred Securities for
sale to the public upon the terms and conditions set forth in the
Prospectus. The Underwriter may from time to time thereafter
reduce the public offering price and change the other selling
terms, provided the proceeds to the Trust shall not be reduced as
a result of such reduction or change.
The Underwriter may reserve and sell such of the
Designated Preferred Securities purchased by the Underwriter as
the Underwriter may elect to dealers chosen by it (the "Selected
Dealers") at the public offering price set forth in the
Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public
at the public offering price. The Underwriter may allow, and
Selected Dealers may re-allow, a concession set forth in the
Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors
---------------------------------
jointly and severally covenant with the Underwriter as follows:
(a) The Offerors shall use their best efforts to cause
the Registration Statement and any amendments thereto, if not
effective at the time of execution of this Agreement, to become
effective as promptly as possible. If the Registration Statement
has become or becomes effective pursuant to Rule 430A and
information has been omitted therefrom in reliance on Rule 430A,
then, the Offerors will prepare and file in accordance with
Rule 430A and Rule 424(b) copies of the Prospectus or, if
required by Rule 430A, a post-effective amendment to the
Registration Statement (including the Prospectus) containing all
information so omitted and will provide evidence satisfactory to
the Underwriter of such timely filing.
(b) The Offerors shall notify the Underwriter
immediately, and confirm such notice in writing:
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<PAGE> 15
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has
become effective, or when the Prospectus or any supplement
to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests
from the Commission;
(iii) of any request of the Commission to
amend or supplement the Registration Statement, any
Preliminary Prospectus or the Prospectus or for additional
information; and
(iv) of the issuance by the Commission or any
state or other regulatory body of any stop order or other
order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or suspending the
qualification of any of the Designated Preferred Securities
for offering or sale in any jurisdiction or the institution
or threat of institution of any proceedings for any of such
purposes. The Offerors shall use their best efforts to
prevent the issuance of any such stop order or of any other
such order and if any such order is issued, to cause such
order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriter,
from time to time without charge, as soon as available, as many
copies as the Underwriter may reasonably request of (i) the
registration statement as originally filed and of all amendments
thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective,
(ii) all exhibits and documents incorporated therein or filed
therewith, (iii) all consents and certificates of experts in
executed form, (iv) each Preliminary Prospectus and all
amendments and supplements thereto, and (v) the Prospectus, and
all amendments and supplements thereto.
(d) During the time when a prospectus is required to
be delivered under the 1933 Act, the Offerors shall comply to the
best of their ability with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as
to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust
Agreement and the Prospectus. The Offerors shall not file any
amendment to the registration statement as originally filed or to
the Registration Statement and shall not file any amendment
thereto or make any amendment or supplement to any Preliminary
Prospectus or to the Prospectus of which the Underwriter shall
not previously have been advised in writing and provided a copy a
reasonable time prior to the proposed filings thereof or to which
the Underwriter or its counsel shall object. If it is necessary,
in the Company's reasonable opinion or in the reasonable opinion
of the Company's counsel to amend or supplement the Registration
Statement or the Prospectus in connection with the distribution
of the Designated Preferred Securities, the Offerors shall
forthwith amend or supplement the Registration Statement or the
Prospectus, as the case may be, by preparing and filing with the
Commission (provided the Underwriter or its counsel does not
reasonably object), and furnishing to the Underwriter, such
number of copies as the Underwriter may reasonably request of an
amendment or amendments of, or a supplement or supplements to,
the Registration Statement or the Prospectus, as the case may be
(in form and substance reasonably satisfactory to the Underwriter
and its counsel). If any event shall occur as a result of which
it is necessary to amend or supplement the Prospectus to correct
an untrue statement of a material fact or to include a material
fact necessary to make the
15
<PAGE> 16
statements therein, in light of the circumstances under which they
were made, not misleading, or if for any reason it is necessary at
any time to amend or supplement the Prospectus to comply with the
1933 Act and the 1933 Act Regulations, the Offerors shall, subject
to the second sentence of this subsection (d), forthwith amend or
supplement the Prospectus by preparing and filing with the
Commission, and furnishing to the Underwriter, such number of
copies as the Underwriter may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus
(in form and substance satisfactory to the Underwriter and its
counsel) so that, as so amended or supplemented, the Prospectus
shall not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(e) The Offerors shall cooperate with the Underwriter
and its counsel in order to qualify the Designated Preferred
Securities for offering and sale under the securities or blue sky
laws of such jurisdictions as the Underwriter may reasonably
request and shall continue such qualifications in effect so long
as may be advisable for distribution of the Designated Preferred
Securities; provided, however, that the Offerors shall not be
required to qualify to do business as a foreign corporation or
file a general consent to service of process in any jurisdiction
in connection with the foregoing. The Offerors shall file such
statements and reports as may be required by the laws of each
jurisdiction in which the Designated Preferred Securities have
been qualified as above. The Offerors will notify the
Underwriter immediately of, and confirm in writing, the
suspension of qualification of the Designated Preferred
Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to
their security holders in the manner contemplated by Rule 158 of
the 1933 Act Regulations and furnish to the Underwriter as soon
as practicable, but in any event not later than 16 months after
the Effective Date, a consolidated earnings statement of the
Offerors conforming with the requirements of Section 11(a) of the
1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale
of the Designated Preferred Securities to be sold by the Trust
hereunder in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(h) For five years from the Effective Date, the
Offerors shall furnish to the Underwriter copies of all reports
and communications (financial or otherwise) furnished by the
Offerors to the holders of the Designated Preferred Securities as
a class, copies of all reports and financial statements filed
with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the
Commission) or with any national securities exchange or the
Nasdaq Stock Market's National Market and such other documents,
reports and information concerning the business and financial
conditions of the Offerors as the Underwriter may reasonably
request, other than such documents, reports and information for
which the Offerors has the legal obligation not to reveal to the
Underwriter.
(i) For a period of 30 days from the Effective Date,
the Offerors shall not, directly or indirectly, offer for sale,
sell or agree to sell or otherwise dispose of any Designated
Preferred Securities other than pursuant to this Agreement, any
other beneficial interests in the assets of the Trust or any
securities of the Trust or the Company that are substantially
similar to
16
<PAGE> 17
the Designated Preferred Securities, including any guarantee of
such beneficial interests or substantially similar securities, or
securities convertible into or exchangeable for or that represent
the right to receive any such beneficial interest or substantially
similar securities without the Underwriter's prior written consent.
(j) The Offerors shall use their best efforts to cause
the Designated Preferred Securities to become quoted on the
Nasdaq Stock Market's National Market, or in lieu thereof a
national securities exchange, and to remain so quoted for at
least five years from the Effective Date or for such shorter
period as may be specified in a written consent of the
Underwriter, provided this shall not prevent the Company from
redeeming the Designated Preferred Securities pursuant to the
terms of the Trust Agreement. If the Designated Preferred
Securities are exchanged for Debentures, the Company will use its
best efforts to have the Debentures promptly listed on the Nasdaq
Stock Market's National Market or other organization on which the
Designated Preferred Securities are then listed, and to have the
Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and
through the date which is the later of (i) the day following the
date on which the Underwriter's option to purchase the Option
Preferred Securities shall expire or (ii) the day following the
Option Closing Date with respect to any Option Preferred
Securities that the Underwriter shall elect to purchase, except
as described in or contemplated by the Prospectus, neither the
Offerors nor any of the Subsidiaries shall take any action (or
refrain from taking any action) which will result in the Offerors
or the Subsidiaries incurring any material liability or
obligation, direct or contingent, or enter into any material
transaction, except in the ordinary course of business, and there
will not be any material change in the financial position,
capital stock, or any material increase in long-term debt,
obligations under capital leases or short-term borrowings of the
Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not take, directly or
indirectly, any action designed to result in or which has
constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Offerors to facilitate the sale or resale of the
Designated Preferred Securities and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the
Offerors.
(m) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Offerors will not issue any press
release or other communication directly or indirectly or hold any
press conference with respect to the Offerors, the Subsidiaries
or the offering of the Designated Preferred Securities (the
"Offering") without the Underwriter's prior written consent.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is
-------------------
terminated or the sale of the Designated Preferred Securities to
the Underwriter is consummated, the Company covenants and agrees
that it will pay or cause to be paid (directly or by
reimbursement) all costs and expenses incident to the performance
of the obligations of the Offerors under this Agreement,
including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary
Prospectus or Prospectuses, the Registration Statement
17
<PAGE> 18
and the Prospectus and any amendments or supplements thereto, and
the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected
dealers agreements), the certificates for the Designated
Preferred Securities and the Preliminary and Final Blue Sky
Memoranda and any legal investment surveys and any supplements
thereto;
(b) all fees, expenses and disbursements of the
Offerors' counsel and accountants;
(c) all fees and expenses incurred in connection with
the qualification of the Designated Preferred Securities,
Debentures and the Guarantee under the securities or blue sky
laws of such jurisdictions as the Underwriter may request,
including all filing fees and fees and disbursements of counsel
to the Underwriter in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary
and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(d) all fees and expenses incurred in connection with
filings made with the NASD;
(e) any applicable fees and other expenses incurred in
connection with the listing of the Designated Preferred
Securities and, if applicable, the Guarantee and the Debentures
on the Nasdaq Stock Market's National Market;
(f) the cost of furnishing to the Underwriter copies
of the initial registration statements, any Preliminary
Prospectus, the Registration Statement and the Prospectus and all
amendments or supplements thereto;
(g) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel to any
transfer agent or registrar;
(h) all costs and expenses (including stock transfer
taxes) incurred in connection with the printing, issuance and
delivery of the Designated Preferred Securities to the
Underwriter;
(i) all expenses incident to the preparation,
execution and delivery of the Trust Agreement, the Indenture and
the Guarantee; and
(j) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and under
the Trust Agreement that are not otherwise specifically provided
for in this Section 5.
If the sale of Designated Preferred Securities
contemplated by this Agreement is not completed due to the
termination pursuant to the terms, the Company will pay the
Underwriter its accountable out-of-pocket expenses in connection
herewith or in contemplation of the performance of the
Underwriter's obligations hereunder, including without limitation
travel expenses, reasonable fees, expenses and disbursements of
counsel or other out-of-pocket expenses incurred by the
Underwriter in connection with any discussion of the Offering or
the
18
<PAGE> 19
contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the
marketing, purchase, sale or delivery of the Designated Preferred
Securities, in each case following presentation of reasonably
detailed invoices therefor.
If the sale of Designated Preferred Securities
contemplated by this Agreement is completed, the Company shall
not be responsible for payment of fees or disbursements of
counsel to the Underwriter other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of
the Underwriter.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The
-------------------------------------------
obligations of the Underwriter to purchase and pay for the Firm
Preferred Securities and, following exercise of the option
granted by the Offerors in Section 1 of this Agreement, the
Option Preferred Securities, are subject, in the Underwriter's
sole discretion, to the accuracy of and compliance with the
representations and warranties and agreements of the Offerors
herein as of the date hereof and as of the Closing Date (or in
the case of the Option Preferred Securities, if any, as of the
Option Closing Date), to the accuracy of the written statements
of the Offerors made pursuant to the provisions hereof, to the
performance by the Offerors of their covenants and obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared
effective prior to the time of execution hereof, the Registration
Statement shall become effective not later than 10:00 a.m., St.
Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as
the Underwriter may agree to in writing. If required, the
Prospectus and any amendment or supplement thereto shall have
been timely filed in accordance with Rule 424(b) and Rule 430A
under the 1933 Act and Section 4(a) hereof. No stop order
suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued under the
1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall
be pending, or, to the knowledge of the Offerors or the
Underwriter, shall be contemplated by the Commission or any state
authority. Any request on the part of the Commission or any
state authority for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have
been disclosed to the Underwriter and complied with to the
satisfaction of the Underwriter and its counsel.
(b) The Underwriter shall not have advised the Company
at or before the Closing Date (and, if applicable, the Option
Closing Date) that the Registration Statement or any post-
effective amendment thereto, or the Prospectus or any amendment
or supplement thereto, contains an untrue statement of a fact
which, in the Underwriter's opinion, is material or omits to
state a fact which, in the Underwriter's opinion, is material and
is required to be stated therein or is necessary to make
statements therein (in the case of the Prospectus or any
amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Trust Agreement, and the Designated Preferred
Securities, and the authorization and form of the Registration
Statement and Prospectus, other than financial statements and
other financial data, and all other legal matters relating to
this Agreement and the transactions contemplated hereby or by the
Trust Agreement
19
<PAGE> 20
shall be satisfactory in all material respects to counsel to the
Underwriter, and the Offerors and the Subsidiaries shall have
furnished to such counsel all documents and information relating
thereto that they may reasonably request to enable them to pass
upon such matters.
(d) Lewis, Rice & Fingersh, L.C., counsel to the
Offerors, shall have furnished to the Underwriter their signed
opinion, dated the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to counsel to
the Underwriter, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Arkansas, and is duly registered as a bank holding
company under the BHC Act. Each of the Subsidiaries is duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation. Each of the
Company and the Subsidiaries has full corporate power and
authority to own or lease its properties and to conduct its
business as such business is described in the Prospectus and
is currently conducted in all material respects. To the
best of such counsel's knowledge, all outstanding shares of
capital stock of the Subsidiaries have been duly authorized
and validly issued and are fully paid and nonassessable
except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 1831 and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus,
there are no outstanding rights, options or warrants to
purchase any such shares or securities convertible into or
exchangeable for any such shares.
(ii) The capital stock, Debentures and Guarantee
of the Company and the equity securities of the Trust
conform to the description thereof contained in the
Prospectus in all material respects. To the best of such
counsel's knowledge, the capital stock of the Company
authorized and issued as of March 31, 1997 is as set forth
under the caption "Capitalization" in the Prospectus, has
been duly authorized and validly issued, and is fully paid
and nonassessable. To the best of such counsel's knowledge,
there are no outstanding rights, options or warrants to
purchase, no other outstanding securities convertible into
or exchangeable for, and no commitments, plans or
arrangements to issue, any shares of capital stock of the
Company or equity securities of the Trust, except as
described in the Prospectus.
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and Debentures in accordance
with the terms and conditions of this Agreement and the
Indenture have been duly authorized by all necessary actions
of the Offerors. All of the Designated Preferred Securities
have been duly and validly authorized and, when delivered in
accordance with this Agreement will be duly and validly
issued, fully paid and nonassessable, and will conform to
the description thereof in the Registration Statement, the
Prospectus and the Trust Agreement. The Designated
Preferred Securities have been approved for quotation on the
Nasdaq Stock Market's National Market subject to official
notice of issuance. There are no preemptive or other rights
to subscribe for or to purchase, and other than as disclosed
in the Prospectus no restrictions upon the voting or
transfer of, any shares of capital stock or equity
securities of the Offerors or the Subsidiaries pursuant to
the corporate charter, by-laws or other governing documents
(including without limitation, the Trust Agreement) of the
Offerors or the Subsidiaries,
20
<PAGE> 21
or, to the best of such counsel's knowledge, any agreement or
other instrument to which either Offeror or any of the
Subsidiaries is a party or by which either Offeror or any of
the Subsidiaries may be bound.
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their obligations
under this Agreement, and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors
and constitutes the legal, valid and binding obligations of
the Offerors enforceable in accordance with its terms,
except as the enforcement hereof or thereof may be limited
by general principles of equity and by bankruptcy or other
laws relating to or affecting creditors' rights generally,
and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and
certain remedies may not be available in the case of a non-
material breach.
(v) Each of the Indenture, the Trust Agreement
and the Guarantee has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and
delivered by the Company, and is a valid and legally binding
obligation of the Company enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and
of general principles of equity.
(vi) The Debentures have been duly authorized,
executed, authenticated and delivered by the Company, are
entitled to the benefits of the Indenture and are legal,
valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject
to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general
principles of equity.
(vii) The Expense Agreement has been duly
authorized, executed and delivered by the Company, and is a
valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights
and remedies of creditors generally and of general
principles of equity.
(viii) To the best of such counsel's knowledge,
neither of the Offerors nor any of the Subsidiaries is in
breach or violation of, or default under, with or without
notice or lapse of time or both, its corporate charter, by-
laws or governing document (including without limitation,
the Trust Agreement). The execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated by this Agreement, and the Trust
Agreement do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of
the Offerors or the Subsidiaries or the Designated Preferred
Securities pursuant to, or constitute a material breach or
violation of, or constitute a material default under, with
or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter, by-laws or
governing document (including without limitation, the Trust
Agreement) of the Offerors or the Subsidiaries, or to the
best of such counsel's knowledge, any material contract,
indenture, mortgage, deed
21
<PAGE> 22
of trust, loan or credit agreement, note, lease, franchise,
license or any other agreement or instrument to which either
Offeror or the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound or any
order, decree, judgment, franchise, license, Permit, rule or
regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign,
known to such counsel having jurisdiction over the Offerors
or the Subsidiaries or any of their respective properties
which, in each case, is material to the Offerors and the
Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or
qualification with, any person (including, without
limitation, any court, governmental body or authority) is
required under Arkansas law in connection with the
transactions contemplated by this Agreement in connection
with the purchase and distribution of the Designated
Preferred Securities by the Underwriter.
(ix) To the best of such counsel's knowledge,
holders of securities of the Offerors either do not have any
right that, if exercised, would require the Offerors to
cause such securities to be included in the Registration
Statement or have waived such right. To the best of such
counsel's knowledge, neither the Offerors nor any of the
Subsidiaries is a party to any agreement or other instrument
which grants rights for or relating to the registration of
any securities of the Offerors.
(x) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's
knowledge, (i) no action, suit or proceeding at law or in
equity is pending or threatened in writing to which the
Offerors or the Subsidiaries is or may be a party, and (ii)
no action, suit or proceeding is pending or threatened in
writing against or affecting the Offerors or the
Subsidiaries or any of their properties, before or by any
court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator,
wherein an unfavorable decision, ruling or finding could
reasonably be expected to have a material adverse effect on
the consummation of this Agreement or the issuance and sale
of the Designated Preferred Securities as contemplated
herein or the condition (financial or otherwise), earnings,
affairs, business, or results of operations of the Offerors
and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Registration Statement or
the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order
of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body
or authority) is required in connection with the
transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus,
except such as have been obtained under the 1933 Act, the
Trust Indenture Act, and except such as may be required
under state securities laws or Interpretations or Rules of
the NASD in connection with the purchase and distribution of
the Designated Preferred Securities by the Underwriter.
(xii) The Registration Statement and the
Prospectus and any amendments or supplements thereto and any
documents incorporated therein by reference (other than the
financial statements or other financial data included
therein or omitted therefrom and Underwriter's Information,
as to which such counsel need express no
22
<PAGE> 23
opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations as
of their respective dates of effectiveness.
(xiii) To the best of such counsel's knowledge,
there are no contracts, agreements, leases or other
documents of a character required to be disclosed in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so
disclosed or filed.
(xiv) The statements under the captions
"Description of the Preferred Securities," "Description of
the Subordinated Debentures," "Description of the
Guarantee," "Relationship Among the Preferred Securities,
the Subordinated Debentures and the Guarantee," "Certain
Federal Income Tax Consequences," "ERISA Considerations" and
"Supervision and Regulation" in the Prospectus or
incorporated therein by reference, insofar as such
statements constitute a summary of legal and regulatory
matters, documents or instruments referred to therein, are
accurate descriptions of the matters summarized therein in
all material respects and fairly present the information
called for with respect to such legal matters, documents and
instruments, other than financial and statistical data as to
which said counsel expresses no opinion or belief.
(xv) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become
effective under the 1933 Act; any required filing of the
Prospectus pursuant to Rule 424(b) has been made within the
time period required by Rule 424(b); to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for a stop order are pending or
threatened by the Commission.
(xvi) Except as described in or contemplated
by the Prospectus, to the best of such counsel's knowledge,
there are no contractual encumbrances or restrictions, or
material legal restrictions required to be described therein
on the ability of the Subsidiaries (A) to pay dividends or
make any other distributions on its capital stock or to pay
indebtedness owed to the Offerors, (B) to make any loans or
advances to, or investments in, the Offerors or (C) to
transfer any of its property or assets to the Offerors.
(xvii) To the best of such counsel's knowledge,
(A) the business and operations of the Offerors and the
Subsidiaries comply in all material respects with all
statutes, ordinances, laws, rules and regulations applicable
thereto and which are material to the Offerors and the
Subsidiaries on a consolidated basis, except in those
instances where non-compliance would not materially impair
the ability of the Offerors and the Subsidiaries to conduct
their business; and (B) the Offerors and the Subsidiaries
possess and are operating in all material respects in
compliance with the terms, provisions and conditions of all
Permits that are required to conduct their businesses as
described in the Prospectus and that are material to the
Offerors and the Subsidiaries on a consolidated basis,
except in those instances where the loss thereof or non-
compliance therewith would not have a material adverse
effect on the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the
Offerors and the Subsidiaries on a consolidated basis; to
the best of such counsel's knowledge, all such Permits are
valid
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<PAGE> 24
and in full force and effect, and, to the best of such
counsel's knowledge, no action, suit or proceeding is
pending or threatened which may lead to the revocation,
termination, suspension or non-renewal of any such Permit,
except in those instances where the loss thereof or non-
compliance therewith would not materially impair the ability
of the Offerors or the Subsidiaries to conduct their
businesses.
In giving the above opinion, such counsel may state
that, insofar as such opinion involves factual matters, they have
relied upon certificates of officers of the Offerors including,
without limitation, certificates as to the identity of any and
all material contracts, indentures, mortgages, deeds of trust,
loans or credit agreements, notes, leases, franchises, licenses
or other agreements or instruments, and all material permits,
easements, consents, licenses, franchises and government
regulatory authorizations, for purposes of paragraphs (viii),
(xiii) and (xvii) hereof and certificates of public officials.
In giving such opinion, such counsel may rely upon (A) the
opinion of Richards, Layton and Finger described herein as to
matters of Delaware law and (B) the opinion of Ramsay,
Bridgforth, Harrelson & Starling, as to matters of Arkansas law
and certain matters regarding the Company and the Subsidiaries,
and such counsel shall state in its opinion the amount of
reliance it is placing on the opinion of such Company counsel and
that such reliance is, in the view of such counsel, reasonable
under the circumstances.
Such counsel shall also confirm that, in connection
with the preparation of the Registration Statement and
Prospectus, such counsel has participated in conferences with
officers and representatives of the Offerors and with their
independent public accountants and with the Underwriter and its
counsel, at which conferences such counsel made inquiries of such
officers, representatives and accountants and discussed in detail
the contents of the Registration Statement and Prospectus and the
documents incorporated therein by reference (without taking
further action to verify independently the statements made in the
Registration Statement and the Prospectus, and without assuming
responsibility for the accuracy or completeness of such
statements, except to the extent expressly provided above) and
such counsel has no reason to believe (A) that the Registration
Statement or any amendment thereto (except for the financial
statements and related schedules and statistical data included
therein or omitted therefrom or Underwriter's Information, as to
which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
(B) that the Prospectus or any amendment or supplement thereto or
the documents incorporated therein by reference (except for the
financial statements and related schedules and statistical data
included therein or omitted therefrom or Underwriter's
Information, as to which such counsel need express no opinion),
at the time the Registration Statement became effective (or, if
the term "Prospectus" refers to the prospectus first filed
pursuant to Rule 424(b) of the 1933 Act Regulations, at the time
the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if
applicable, the Option Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made, or (C) that there is
any amendment to the Registration Statement required to be filed
that has not already been filed.
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<PAGE> 25
(e) Richards, Layton and Finger, special Delaware
counsel to the Offerors, shall have furnished to the Underwriter
their signed opinion, dated as of Closing Date or the Option
Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act and, under the Trust
Agreement and the Delaware Business Trust Act, has the trust
power and authority to conduct its business as described in
the Prospectus.
(ii) The Trust Agreement is a legal, valid and
binding agreement of the Trust and the Trustees, and is
enforceable against the Company, as sponsor, and the
Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the
Delaware Business Trust Act, the execution and delivery of
the Underwriting Agreement by the Trust, and the performance
by the Trust of its obligations thereunder, have been
authorized by all requisite trust action on the part of the
Trust.
(iv) The Designated Preferred Securities have been
duly authorized by the Trust Agreement, and when issued and
sold in accordance with the Trust Agreement, the Designated
Preferred Securities will be, subject to the qualifications
set forth in paragraph (v) below, fully paid and
nonassessable beneficial interest in the assets of the Trust
and entitled to the benefits of the Trust Agreement. The
form of certificates to evidence the Designated Preferred
Securities has been approved by the Trust and is in due and
proper form and complies with all applicable requirements of
the Delaware Business Trust Act.
(v) Holders of Designated Preferred Securities,
as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to
shareholders of private, for-profit corporations organized
under the General Corporation Law of the State of Delaware.
Such opinion may note that the holders of Designated
Preferred Securities may be obligated to make payments as
set forth in the Trust Agreement.
(vi) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Preferred
Securities is not subject to preemptive rights.
(vii) The issuance and sale by the Trust of
the Designated Preferred Securities and the Common
Securities, the execution, delivery and performance by the
Trust of this Agreement, and the consummation of the
transactions contemplated by this Agreement, do not violate
(a) the Trust Agreement, or (b) any applicable Delaware law,
rule or regulation.
Such opinion may state that it is limited to the laws
of the State of Delaware and that the opinion expressed in
paragraph (ii) above is subject to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation,
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<PAGE> 26
fraudulent conveyance and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
(f) Bryan Cave LLP, counsel to the Underwriter, shall
have furnished to the Underwriter their signed opinion, dated the
Closing Date or the Option Closing Date, as the case may be, with
respect to the sufficiency of all corporate procedures and other
legal matters relating to this Agreement, the validity of the
Designated Preferred Securities, the Registration Statement, the
Prospectus and such other related matters as to the Underwriter
may reasonably request and there shall have been furnished to
such counsel such documents and other information as they may
request to enable them to pass on such matters. In giving such
opinion, Bryan Cave LLP may rely as to matters of fact upon
statements and certifications of officers of the Offerors and of
other appropriate persons and may rely as to matters of law,
other than law of the United States and the State of Missouri,
and upon the opinions of Lewis, Rice & Fingersh, L.C. and
Richards, Layton and Finger described herein.
(g) On the date of this Agreement and on the Closing
Date (and, if applicable, any Option Closing Date), the
Underwriter shall have received from Baird, Kurtz & Dobson a
letter, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Underwriter, confirming
that they are independent public accountants with respect to
Company, within the meaning of the 1933 Act and the 1933 Act
Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company audited by them and included in
the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by
the American Institute of Certified Public Accountants as
described in SAS No. 71, "Interim Financial Information,"
inquiries of officials of the Company responsible for
financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which
procedures do not constitute an audit in accordance with
U.S. generally accepted auditing standards, nothing came to
their attention that caused them to believe that, if
applicable, the unaudited interim consolidated financial
statements of the Company included in the Registration
Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act
and 1933 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis
substantially consistent, except as noted in the
Registration Statement, with the basis for the audited
consolidated financial statements of the Company included in
the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally
accepted auditing standards, consisting of a reading of the
unaudited interim financial statements and other information
referred to below, a reading
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<PAGE> 27
of the latest available unaudited condensed consolidated
financial statements of the Company, inspection of the minute
books of the Company since the date of the latest audited
financial statements of the Company included in the
Registration Statement, inquiries of officials of the Company
responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) as of a specified date not more than
five days prior to the date of such letter, there have
been any changes in the consolidated capital stock of
the Company, any increase in the consolidated debt of
the Company, any decreases in consolidated total assets
or shareholders equity of the Company, or any changes,
decreases or increases in other items specified by the
Underwriter, in each case as compared with amounts
shown in the latest unaudited interim consolidated
statement of financial condition of the Company
included in the Registration Statement except in each
case for changes, increases or decreases which the
Registration Statement specifically discloses, have
occurred or may occur or which are described in such
letter; and
(B) for the period from the date of the
latest unaudited interim consolidated financial
statements included in the Registration Statement to
the specified date referred to in Clause (iii)(A),
there were any decreases in the consolidated interest
income, net interest income, or net income of the
Company or in the per share amount of net income of the
Company, or any changes, decreases or increases in any
other items specified by the Underwriter, in each case
as compared with the comparable period of the preceding
year and with any other period of corresponding length
specified by the Underwriter, except in each case for
increases or decreases which the Registration Statement
discloses have occurred or may occur, or which are
described in such letter.
(iv) In addition to the audit referred to in their
report included in the Registration Statement and the
limited procedures, inspection of minute books, inquiries
and other procedures referred to in paragraphs (ii) and
(iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with
U.S. generally accepted auditing standards, with respect to
certain amounts, percentages and financial information
specified by the Underwriter which are derived from the
general accounting records and consolidated financial
statements of the Company which appear in the Registration
Statement specified by the Underwriter in the Registration
Statement, and have compared such amounts, percentages and
financial information with the accounting records and the
material derived from such records and consolidated
financial statements of the Company have found them to be in
agreement.
In the event that the letters to be delivered referred
to above set forth any such changes, decreases or increases as
specified in Clauses (iii)(A) or (iii)(B) above, or any
exceptions from such agreement specified in Clause (iv) above, it
shall be a further condition to the Underwriter's obligations
that the Underwriter shall have determined, after discussions
with officers of the Company responsible for financial and
accounting matters, that such changes, decreases, increases or
exceptions as are set forth in such letters do not (x) reflect a
material
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<PAGE> 28
adverse change in the items specified in Clause (iii)(A) above as
compared with the amounts shown in the latest unaudited
consolidated statement of financial condition of the Company
included in the Registration Statement, (y) reflect a material
adverse change in the items specified in Clause (iii)(B) above as
compared with the corresponding periods of the prior year or
other period specified by the Underwriter, or (z) reflect a
material change in items specified in Clause (iv) above from the
amounts shown in the Preliminary Prospectus distributed by the
Underwriter in connection with the offering contemplated hereby
or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option
Closing Date, the Underwriter shall have received certificates of
the chief executive officer and the chief financial and
accounting officer of the Company, which certificates shall be
deemed to be made on behalf of the Company dated as of the
Closing Date and, if applicable, the Option Closing Date,
evidencing satisfaction of the conditions of Section 6(a) and
stating that (i) the representations and warranties of the
Company set forth in Section 2(a) hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and
that the Offerors have complied with all agreements and satisfied
all conditions on their part to be performed or satisfied at or
prior to such Closing Date; (ii) since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis; (iii) since such dates
there has not been any material transaction entered into by the
Offerors or the Subsidiaries other than transactions in the
ordinary course of business; and (iv) they have carefully
examined the Registration Statement and the Prospectus as amended
or supplemented and nothing has come to their attention that
would lead them to believe that either the Registration Statement
or the Prospectus, or any amendment or supplement thereto as of
their respective effective or issue dates, contained, and the
Prospectus as amended or supplemented at such Closing Date (and,
if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and (v) covering such other
matters as the Underwriter may reasonably request. The officers'
certificate of the Company shall further state that no stop order
affecting the Registration Statement is in effect or, to their
knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option
Closing Date, the Underwriter shall have received a certificate
of an authorized representative of the Trust to the effect that
to the best of his or her knowledge based upon a reasonable
investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of
the Closing Date (and, if applicable, the Option Closing Date);
the Trust has complied with all the agreements and satisfied all
the conditions required by this Agreement to be performed or
satisfied by the Trust on or prior to the Closing Date and since
the most recent date as of which information is given in the
Prospectus, except as contemplated by the Prospectus, the Trust
has not incurred any material liabilities or obligations, direct
or contingent, or entered into any material transactions not in
the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise)
of the Trust.
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<PAGE> 29
(j) On the Closing Date, the Underwriter shall have
received duly executed counterparts of the Trust Agreement, the
Guarantee, the Indenture and the Expense Agreement.
(k) The NASD, upon review of the terms of the public
offering of the Designated Preferred Securities, shall not have
objected to the Underwriter's participation in such offering.
(l) Prior to the Closing Date and, if applicable, the
Option Closing Date, the Offerors shall have furnished to the
Underwriter and its counsel all such other documents,
certificates and opinions as they have reasonably requested.
All opinions, certificates, letters and other documents
shall be in compliance with the provisions hereof only if they
are reasonably satisfactory in form and substance to the
Underwriter. The Offerors shall furnish the Underwriter with
conformed copies of such opinions, certificates, letters and
other documents as the Underwriter shall reasonably request.
If any of the conditions referred to in this Section 6
shall not have been fulfilled when and as required by this
Agreement, this Agreement and all of the Underwriter's
obligations hereunder may be terminated by the Underwriter on
notice to the Company at, or at any time before, the Closing Date
or the Option Closing Date, as applicable. Any such termination
shall be without liability of the Underwriter to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Offerors agree to jointly and severally
indemnify and hold harmless the Underwriter, each of its
directors, officers and agents, and each person, if any, who
controls the Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and
reasonable attorney fees and expenses), joint or several, arising
out of or based (i) upon any untrue statement or alleged untrue
statement of a material fact made by the Company or the Trust
contained in Section 2(a) of this Agreement (or any certificate
delivered by the Company or the Trust pursuant to Sections 6(h),
6(i) or 6(l) hereof) or the registration statement as originally
filed or the Registration Statement, any Preliminary Prospectus
or the Prospectus, or in any amendment or supplement thereto,
(ii) upon any blue sky application or other document executed by
the Company or the Trust specifically for that purpose or based
upon written information furnished by the Company or the Trust
filed in any state or other jurisdiction in order to qualify any
of the Designated Preferred Securities under the securities laws
thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), (iii) any
omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration
Statement, the Preliminary Prospectus or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky
Application required to be stated therein or necessary to make
the statements therein not misleading, and against any and all
losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorney fees), joint or
several, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the
29
<PAGE> 30
statements therein, in the light of the circumstances under which
they were made, not misleading or (iv) the enforcement of this
indemnification provision or the contribution provisions of Section
7(d); and shall reimburse each such indemnified party for any
reasonable legal or other expenses as incurred, but in no event
less frequently than 30 days after each invoice is submitted,
incurred by them in connection with investigating or defending
against or appearing as a third-party witness in connection with
any such loss, claim, damage, liability or action, notwithstanding
the possibility that payments for such expenses might later be held
to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offerors shall not be
-----------------
liable in any such case to the extent, but only to the extent,
that any such losses, claims, damages, liabilities and expenses
arise out of or are based upon any untrue statement or omission
or allegation thereof that has been made therein or omitted
therefrom in reliance upon and in conformity with the
Underwriter's Information; provided, that the indemnification
--------
contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of the Underwriter (or
of any person controlling the Underwriter) to the extent any such
losses, claims, damages, liabilities or expenses directly results
from the fact that the Underwriter sold Designated Preferred
Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the
Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been furnished to the Underwriter
in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law,
and if such loss, claim, damage, liability or expense would not
have arisen but for the failure to give or send such person such
document. The foregoing indemnity agreement is in addition to
any liability the Company or the Trust may otherwise have to any
such indemnified party.
(b) The Underwriter agrees to indemnify and hold
harmless each Offeror, each of its directors, each of its
officers who signed the Registration Statement and each person,
if any, who controls an Offeror within the meaning of the 1933
Act, to the same extent as required by the foregoing indemnity
from the Company to the Underwriter, but only with respect to the
Underwriter's Information or in a Blue Sky Application. The
foregoing indemnity agreement is in addition to any liability
which the Underwriter may otherwise have to any such indemnified
party.
(c) If any action or claim shall be brought or
asserted against any indemnified party or any person controlling
an indemnified party in respect of which indemnity may be sought
from the indemnifying party, such indemnified party or
controlling person shall promptly notify the indemnifying party
in writing, and the indemnifying party shall assume the defense
thereof, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all
expenses; provided, however, that the failure so to notify the
-----------------
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under such
paragraph, and further, shall only relieve it from liability
under such paragraph to the extent prejudiced thereby. Any
indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified party or
such controlling person unless (i) the employment thereof has
been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the
defense or to employ counsel reasonably satisfactory to the
indemnified
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<PAGE> 31
party or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party or such
controlling person and the indemnifying party and such indemnified
party or such controlling person shall have been advised by such
counsel that there may be one or more legal defenses available to
it that are different from or in addition to those available to the
indemnifying party (in which case, if such indemnified party or
controlling person notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified
party or such controlling person) it being understood, however,
that the indemnifying party shall not, in connection with any one
such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any
time and for all such indemnified parties and controlling
persons, which firm shall be designated in writing by the
indemnified party and shall be reasonably satisfactory to the
indemnifying party. Each indemnified party and each controlling
person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense
of any such action or claim. The indemnifying party shall not be
liable for any settlement of any such action effected without its
written consent, but if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior
written consent of each indemnified party, settle, compromise or
consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnity
may be sought hereunder (whether or not such indemnified party or
any person who controls such indemnified party within the meaning
of the 1933 Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent
includes a release of each such indemnified party reasonably
satisfactory to each such indemnified party and each such
controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall
confirm in a written agreement with each indemnified party, that
notwithstanding any federal, state or common law, such
settlement, compromise or consent shall not alter the right of
any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless an
indemnified party under paragraphs (a), (b) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Offerors on the one hand and the Underwriter on
the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Offerors
on the one hand and the Underwriter on the other in connection
with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable
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<PAGE> 32
considerations. The relative benefits received by the Offerors on
the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
of the Designated Preferred Securities (before deducting expenses)
received by the Offerors bear to the total underwriting discounts,
commissions and compensation received by the Underwriter, in each
case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Offerors on the one hand and of the
Underwriter on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Offerors or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. Each Offeror and the
Underwriter agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) were determined by
pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities and expenses
referred to in the first sentence of this paragraph (d) shall be
deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
paragraph (d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten
by the Underwriter and distributed to the public were offered to
the public exceeds the amount of any damages that the Underwriter
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this paragraph (d), each person who
controls the Underwriter within the meaning of the 1933 Act shall
have the same rights to contribution as the Underwriter, and each
person who controls an Offeror within the meaning of the 1933
Act, each officer and trustee of an Offeror who shall have signed
the Registration Statement and each director of an Offeror shall
have the same rights to contribution as the Offerors subject in
each case to the preceding sentence. The obligations of the
Offerors under this paragraph (d) shall be in addition to any
liability which the Offerors may otherwise have and the
obligations of the Underwriter under this paragraph (d) shall be
in addition to any liability that the Underwriter may otherwise
have.
(e) The indemnity and contribution agreements
contained in this Section 7 and the representations and
warranties of the Offerors set forth in this Agreement shall
remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of the Underwriter or
any person controlling the Underwriter or by or on behalf of the
Offerors, or such directors, trustees or officers (or any person
controlling an Offeror, (ii) acceptance of any Designated
Preferred Securities and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of the Underwriter or
of an Offeror, such directors, trustees or officers (or of any
person controlling the Underwriter or an Offeror) shall be
entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 7.
32
<PAGE> 33
(f) The Company agrees to indemnify the Trust against
any and all losses, claims, damages or liabilities that may
become due from the Trust under this Section 7.
8. TERMINATION. The Underwriter shall have the right to
-----------
terminate this Agreement at any time at or prior to the Closing
Date or, with respect to the Underwriter's obligation to purchase
the Option Preferred Securities, at any time at or prior to the
Option Closing Date, without liability on the part of the
Underwriter to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been
unable to perform any agreement on its part to be performed under
this Agreement, or any of the conditions referred to in Section 6
shall not have been fulfilled, when and as required by this
Agreement;
(b) The Offerors or any of the Subsidiaries shall have
sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree which in the judgment of the
Underwriter materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of
which information is given in the Registration Statement or the
Prospectus, any materially adverse change in, or any development
which is reasonably likely to have a material adverse effect on,
the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and
the Subsidiaries on a consolidated basis, whether or not arising
in the ordinary course of business;
(d) There has occurred any outbreak of hostilities or
other calamity or crisis or material change in general economic,
political or financial conditions, or internal conditions, the
effect of which on the financial markets of the United States is
such as to make it, in the Underwriter's reasonable judgment,
impracticable to market the Designated Preferred Securities or
enforce contracts for the sale of the Designated Preferred
Securities;
(e) Trading generally on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq Stock Market's National
Market shall have been suspended, or minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, by any of said exchanges
or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by
either federal or Arkansas authorities; or
(g) Any action shall have been taken by any government
in respect of its monetary affairs which, in the Underwriter's
reasonable judgment, has a material adverse effect on the United
States securities markets.
The Offerors shall have the right to terminate this
Agreement at any
33
<PAGE> 34
time at or prior to the Closing Date or, with respect to the sale
of the Option Preferred Securities, at any time at or prior to the
Option Closing Date, if a Tax Event or a Capital Treatment Event,
as such terms are defined in the Registration Statement, shall have
occurred.
If this Agreement shall be terminated pursuant to this
Section 8, the Offerors shall not then be under any liability to
the Underwriter except as provided in Sections 5 and 7 hereof.
9. EFFECTIVE DATE OF AGREEMENT. If the Registration
---------------------------
Statement is not effective at the time of execution of this
Agreement, this Agreement shall become effective on the Effective
Date at the time the Commission declares the Registration
Statement effective. The Company shall immediately notify the
Underwriter when the Registration Statement becomes effective.
If the Registration Statement is effective at the time
of execution of this Agreement, this Agreement shall become
effective at the earlier of 11:00 a.m. St. Louis time, on the
first full business day following the day on which this Agreement
is executed, or at such earlier time as the Underwriter shall
release the Designated Preferred Securities for initial public
offering. The Underwriter shall notify the Offerors immediately
after it has taken any action which causes this Agreement to
become effective.
Until such time as this Agreement shall have become
effective, it may be terminated by the Offerors, by notifying the
Underwriter, or by the Underwriter, by notifying either Offeror,
except that the provisions of Sections 5 and 7 shall at all times
be effective.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
-----------------------------------------------------
DELIVERY. The representations, warranties, indemnities,
- --------
agreements and other statements of the Offerors and their
officers and trustees set forth in or made pursuant to this
Agreement and the agreements of the Underwriter contained in
Section 7 hereof shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of
the Offerors or controlling persons of either Offeror, or by or
on behalf of the Underwriter or controlling persons of the
Underwriter or any termination or cancellation of this Agreement
and shall survive delivery of and payment for the Designated
Preferred Securities.
11. NOTICES. Except as otherwise provided in this
-------
Agreement, all notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if
delivered by hand, mailed by registered or certified mail, return
receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to either Offeror shall
be sent to 501 Main Street, Pine Bluff, Arkansas 71611,
Attention: J. Thomas May (with a copy to Lewis, Rice & Fingersh,
L.C., 500 North Broadway, Suite 2000, St. Louis, Missouri 63102,
Attention: Thomas C. Erb, Esq.; and to Ramsay, Bridgforth,
Harrelson & Starling, 501 Main Street, Pine Bluff, Arkansas
71611, Attention: Patrick A. Burrow, Esq.); and notices to the
Underwriter shall be sent to Stifel, Nicolaus & Company,
Incorporated, 500 North Broadway, Suite 1500, St. Louis, Missouri
63102, Attention: Rick E. Maples (with a copy to Bryan Cave LLP,
One Metropolitan Square, 211 North Broadway, Suite 3600, St.
Louis, Missouri 63102, Attention: Frederick W. Scherrer, Esq.).
12. PARTIES. The Agreement herein set forth is made solely
-------
for the benefit of the Underwriter and the Offerors and, to the
extent expressed, directors, trustees and officers of the
Offerors, any person controlling the Offerors or the Underwriter,
and their respective successors
34
<PAGE> 35
and assigns. No other person shall acquire or have any right under
or by virtue of this Agreement. The term "successors and assigns"
shall not include any purchaser, in his status as such purchaser,
from the Underwriter of the Designated Preferred Securities.
13. GOVERNING LAW. This Agreement shall be governed by the
-------------
laws of the State of Missouri, without giving effect to the
choice of law or conflicts of law principles thereof.
14. COUNTERPARTS. This Agreement may be executed in one or
------------
more counterparts, and when a counterpart has been executed by
each party hereto all such counterparts taken together shall
constitute one and the same Agreement.
[The remainder of this page is intentionally left blank.]
35
<PAGE> 36
If the foregoing is in accordance with the your
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this shall become a binding
agreement between the Company, the Trust and you in accordance
with its terms.
Very truly yours,
SIMMONS FIRST NATIONAL
CORPORATION
By:-------------------------------
Name:
Title:
SIMMONS FIRST CAPITAL TRUST
By:-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of June ---, 1997.
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By:---------------------------
Name:
Title:
36
<PAGE> 37
EXHIBIT A
LIST OF SUBSIDIARIES
Simmons First Capital Trust
Simmons First National Bank
Simmons First Bank of Jonesboro
Simmons First Bank of South Arkansas
Simmons First Bank of Dumas
Simmons First Bank of Northwest Arkansas
37
<PAGE> 1
===============================================================================
SIMMONS FIRST NATIONAL CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE
INDENTURE
-----% SUBORDINATED DEBENTURES DUE 2027
DATED AS OF ----------, 1997.
===============================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS 1
Section 1.1. Definitions of Terms 1
ARTICLE II. ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF DEBENTURES 8
Section 2.1. Designation and Principal Amount 8
Section 2.2. Maturity 8
Section 2.3. Form and Payment 9
Section 2.4. [Intentionally Omitted] 10
Section 2.5. Interest 10
Section 2.6. Execution and Authentications 10
Section 2.7. Registration of Transfer and Exchange 11
Section 2.8. Temporary Debentures 12
Section 2.9. Mutilated, Destroyed, Lost or Stolen Debentures 12
Section 2.10. Cancellation 13
Section 2.11. Benefit of Indenture 13
Section 2.12. Authentication Agent 13
ARTICLE III. REDEMPTION OF DEBENTURES 14
Section 3.1. Redemption 14
Section 3.2. Special Event Redemption 14
Section 3.3. Optional Redemption by Company 15
Section 3.4. Notice of Redemption 15
Section 3.5. Payment Upon Redemption 16
Section 3.6. No Sinking Fund 16
ARTICLE IV. EXTENSION OF INTEREST PAYMENT PERIOD 16
Section 4.1. Extension of Interest Payment Period 16
Section 4.2. Notice of Extension 17
Section 4.3. Limitation on Transactions 17
ARTICLE V. PARTICULAR COVENANTS OF COMPANY 18
Section 5.1. Payment of Principal and Interest 18
Section 5.2. Maintenance of Agency 18
Section 5.3. Paying Agents 18
Section 5.4. Appointment to Fill Vacancy in Office of Trustee 19
Section 5.5. Compliance with Consolidation Provisions 19
Section 5.6. Limitation on Transactions 19
Section 5.7. Covenants as to the Trust 20
Section 5.8. Covenants as to Purchases 20
i
<PAGE> 3
<S> <C>
ARTICLE VI. DEBENTUREHOLDERS' LISTS AND REPORTS
BY COMPANY AND TRUSTEE 20
Section 6.1. Company to Furnish Trustee Names and Addresses of
Debentureholders 20
Section 6.2. Preservation of Information Communications with Debentureholders 21
Section 6.3. Reports by Company 21
Section 6.4. Reports by Trustee 22
ARTICLE VII. REMEDIES OF TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT 22
Section 7.1. Events of Default 22
Section 7.2. Collection of Indebtedness and Suits for Enforcement by Trustee 23
Section 7.3. Application of Moneys Collected 25
Section 7.4. Limitation on Suits 25
Section 7.5. Rights and Remedies Cumulative; Delay or Omission not Waiver 26
Section 7.6. Control by Debentureholders 26
Section 7.7. Undertaking to Pay Costs 26
ARTICLE VIII. FORM OF DEBENTURE AND ORIGINAL ISSUE 27
Section 8.1. Form of Debenture 27
Section 8.2. Original Issue of Debentures 27
ARTICLE IX. CONCERNING TRUSTEE 27
Section 9.1. Certain Duties and Responsibilities of Trustee 27
Section 9.2. Notice of Defaults 28
Section 9.3. Certain Rights of Trustee 29
Section 9.4. Trustee Not Responsible for Recitals, etc. 30
Section 9.5. May Hold Debentures 30
Section 9.6. Moneys Held in Trust 30
Section 9.7. Compensation and Reimbursement 30
Section 9.8. Reliance on Officers' Certificate 31
Section 9.9. Disqualification: Conflicting Interests 31
Section 9.10. Corporate Trustee Required; Eligibility 31
Section 9.11. Resignation and Removal; Appointment of Successor 31
Section 9.12. Acceptance of Appointment by Successor 33
Section 9.13. Merger, Conversion, Consolidation or Succession to Business 33
Section 9.14. Preferential Collection of Claims Against the Company 33
ARTICLE X. CONCERNING DEBENTUREHOLDERS 34
Section 10.1. Evidence of Action by Holders 34
Section 10.2. Proof of Execution by Debentureholders 34
Section 10.3. Who May be Deemed Owners 34
Section 10.4. Certain Debentures Owned by Company Disregarded 35
Section 10.5. Actions Binding on Future Debentureholders 35
ARTICLE XI. SUPPLEMENTAL INDENTURES 35
Section 11.1. Supplemental Indentures Without the Consent of Debentureholders 35
Section 11.2. Supplemental Indentures with Consent of Debentureholders 36
ii
<PAGE> 4
<S> <C>
Section 11.3. Effect of Supplemental Indentures 37
Section 11.4. Debentures Affected by Supplemental Indentures 37
Section 11.5. Execution of Supplemental Indentures 37
ARTICLE XII. SUCCESSOR CORPORATION 38
Section 12.1. Company May Consolidate, etc 38
Section 12.2. Successor Corporation Substituted 38
Section 12.3. Evidence of Consolidation, etc. to Trustee 39
ARTICLE XIII. SATISFACTION AND DISCHARGE 39
Section 13.1. Satisfaction and Discharge of Indenture 39
Section 13.2. Discharge of Obligations 39
Section 13.3. Deposited Moneys to be Held in Trust 40
Section 13.4. Payment of Monies Held by Paying Agents 40
Section 13.5. Repayment to Company 40
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS 40
Section 14.1. No Recourse 40
ARTICLE XV. MISCELLANEOUS PROVISIONS 41
Section 15.1. Effect on Successors and Assigns 41
Section 15.2. Actions by Successor 41
Section 15.3. Surrender of Company Powers 41
Section 15.4. Notices 41
Section 15.5. Governing Law 41
Section 15.6. Treatment of Debentures as Debt 41
Section 15.7. Compliance Certificates and Opinions 42
Section 15.8. Payments on Business Days 42
Section 15.9. Conflict with Trust Indenture Act 42
Section 15.10. Counterparts 42
Section 15.11. Separability 42
Section 15.12. Assignment 43
Section 15.13. Acknowledgment of Rights; Right of Setoff 43
ARTICLE XVI. SUBORDINATION OF DEBENTURES 43
Section 16.1. Agreement to Subordinate 43
Section 16.2. Default on Senior Debt, Subordinated Debt or Additional Senior
Obligations 43
Section 16.3. Liquidation; Dissolution; Bankruptcy 44
Section 16.4. Subrogation 45
Section 16.5. Trustee to Effectuate Subordination 46
Section 16.6. Notice by Company 46
Section 16.7. Rights of Trustee; Holders of Senior Indebtedness 47
Section 16.8. Subordination may not be Impaired 47
</TABLE>
iii
<PAGE> 5
<TABLE>
CROSS REFERENCE TABLE
<CAPTION>
SECTION OF TRUST
INDENTURE ACT OF SECTION OF
1939, AS AMENDED INDENTURE
---------------- ----------
<C> <S>
310(a) 9.10
310(b) 9.9, 9.11
310(c) Not Applicable
311(a) 9.14
311(b) 9.14
311(c) Not Applicable
312(a) 6.1, 6.2(a)
312(b) 6.2(c)
312(c) 6.2(c)
313(a) 6.4(a)
313(b) 6.4(b)
313(c) 6.4(a), 6.4(b)
313(d) 6.4(c)
314(a) 6.3(a)
314(b) Not Applicable
314(c) 15.7
314(d) Not Applicable
314(e) 15.7
314(f) Not Applicable
315(a) 9.1(a), 9.3
315(b) 9.2
315(c) 9.1(a)
315(d) 9.1(b)
315(e) 7.7
316(a) 1.1, 7.6
316(b) 7.4(b)
316(c) 10.1(b)
317(a) 7.2
317(b) 5.3
318(a) 15.9
Note: This Cross-Reference Table does not constitute part of this
Indenture and shall not affect the interpretation of any of its
terms or provisions.
</TABLE>
iv
<PAGE> 6
INDENTURE
INDENTURE, dated as of , 1997, between SIMMONS
-------------
FIRST NATIONAL CORPORATION, an Arkansas corporation (the "Company"), and
STATE STREET BANK AND TRUST COMPANY, a trust company duly organized and
existing under the laws of the Commonwealth of Massachusetts, as trustee (the
"Trustee");
RECITALS
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of securities to be known as its % Subordinated Debentures due
----
2027 (hereinafter referred to as the "Debentures"), the form and substance of
such Debentures and the terms, provisions and conditions thereof to be set
forth as provided in this Indenture;
WHEREAS, Simmons First Capital Trust, a Delaware statutory
business trust (the "Trust"), has offered to the public up to
$17,250,000 aggregate liquidation amount of its Preferred Securities (as
defined herein) and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the
Company of up to $533,525 aggregate liquidation amount of its Common
Securities (as defined herein), in up to $17,783,525 aggregate principal
amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Indenture; and
WHEREAS, all requirements necessary to make this Indenture a
valid instrument in accordance with its terms, and to make the Debentures,
when executed by the Company and authenticated and delivered by the Trustee,
the valid obligations of the Company, have been performed, and the execution
and delivery of this Indenture have been duly authorized in all respects; and
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the
purchase of the Debentures by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of the
Debentures:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS OF TERMS.
The terms defined in this Section 1.1 (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto shall
have the respective meanings specified in this Section 1.1 and shall include
the plural as well as the singular. All other terms used in this Indenture
that are defined in the Trust Indenture Act, or that are by reference in the
Trust Indenture Act defined in the Securities Act (except
<PAGE> 7
as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as in force at the date of the execution of this
instrument. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with Generally Accepted
Accounting Principles.
"Accelerated Maturity Date" means if the Company elects to
accelerate the Maturity Date in accordance with Section 2.2(c), the date
selected by the Company which is prior to the Scheduled Maturity Date, but is
after June 30, 2002.
"Additional Payment" shall have the meaning set forth in
Section 2.5.
"Additional Senior Obligations" means all indebtedness of the
Company whether incurred on or prior to the date of this Indenture or
thereafter incurred, for claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements; provided, however, that Additional Senior Obligations does not
include claims in respect of Senior Debt or Subordinated Debt or obligations
which, by their terms, are expressly stated to be not superior in right of
payment to the Debentures or to rank pari passu in right of payment with the
Debentures. For purposes of this definition, "claim" shall have the meaning
assigned thereto in Section 101(4) of the United States Bankruptcy Code of
1978, as amended.
"Administrative Trustees" shall have the meaning set forth in the
Trust Agreement.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person; (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person; (c) any Person directly or indirectly controlling, controlled by, or
under common control with the specified Person; (d) a partnership in which
the specified Person is a general partner; (e) any officer or director of the
specified Person; and (f) if the specified Person is an individual, any
entity of which the specified Person is an officer, director or general
partner.
"Authenticating Agent" means an authenticating agent with respect
to the Debentures appointed by the Trustee pursuant to Section 2.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company
or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification.
"Business Day" means, with respect to the Debentures, any day
other than a Saturday or a Sunday or a day on which federal or state banking
institutions in the Borough of Manhattan, The City of New York, are
authorized or required by law, executive order or regulation to close, or a
day on which the Corporate Trust Office of the Trustee or the Property
Trustee is closed for business.
2
<PAGE> 8
"Capital Treatment Event" means the receipt by the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized banking law
practice, to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such proposed change, pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under the Trust Agreement, there is more than an insubstantial
risk of impairment of the Company's ability to treat the aggregate
liquidation amount of the Preferred Securities (or any substantial portion
thereof) as "Tier 1 Capital" (or the then equivalent thereof) for purposes of
the capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Company.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer, the principal accounting
officer, the treasurer or any vice president of the Company. The Certificate
need not comply with the provisions of Section 15.7.
"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Securities" means undivided beneficial interests in the
assets of the Trust which rank pari passu with the Preferred Securities;
provided, however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of
(i) distributions, and (ii) payments upon liquidation, redemption and
otherwise, are subordinated to the rights of holders of Preferred Securities.
"Company" means Simmons First National Corporation, a corporation
duly organized and existing under the laws of the State of Arkansas, and,
subject to the provisions of Article XII, shall also include its successors
and assigns.
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Corporate Trust Office" means the office of the Trustee at which,
at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at Two International
Place, 4th Floor, Boston Massachusetts 02110, Attention: Corporate Trust
Department.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals
hereto.
3
<PAGE> 9
"Debentureholder," "holder of Debentures," "registered holder," or
other similar term, means the Person or Persons in whose name or names a
particular Debenture shall be registered on the books of the Company or the
Trustee kept for that purpose in accordance with the terms of this Indenture.
"Debenture Register" shall have the meaning set forth in Section
2.7(b).
"Debenture Registrar" shall have the meaning set forth in
Section 2.7(b).
"Debt" means with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent,
(i) every obligation of such Person for money borrowed; (ii) every obligation
of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person;
(iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable
or accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such Person; and (vi) and every obligation of the
type referred to in clauses (i) through (v) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Deferred Payment" shall have the meaning set forth in
Section 4.1.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance
with the Trust Agreement and the Debentures held by the Property Trustee are
to be distributed to the holders of the Trust Securities issued by the Trust
pro rata in accordance with the Trust Agreement.
"Distribution" shall have the meaning set forth in the Trust
Agreement.
"Event of Default" means, with respect to the Debentures, any
event specified in Section 7.1, which has continued for the period of time,
if any, and after the giving of the notice, if any, therein designated.
"Exchange Act," means the Securities Exchange Act of 1934, as
amended, as in effect at the date of execution of this instrument.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Extended Maturity Date" means if the Company elects to extend the
Maturity Date in accordance with Section 2.2(b), the date selected by the
Company which is after the Scheduled Maturity Date but before June 30, 2036.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
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"Generally Accepted Accounting Principles" means such accounting
principles as are generally accepted at the time of any computation required
hereunder.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America that, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of
the holder of such depositary receipt; provided, however, that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
"Herein," "hereof," and "hereunder," and other words of similar
import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
"Interest Payment Date," shall have the meaning set forth in
Section 2.5.
"Investment Company Act" means the Investment Company Act of 1940,
as amended, as in effect at the date of execution of this instrument.
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized tax and
securities law practice, to the effect that, as a result of the occurrence of
a change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), the Trust is or shall be
considered an "investment company" that is required to be registered under
the Investment Company Act, which Change in 1940 Act Law becomes effective on
or after the date of original issuance of the Preferred Securities under the
Trust Agreement.
"Maturity Date" means the date on which the Debentures mature and
on which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Payment,
if any.
"Ministerial Action" shall have the meaning set forth in Section
3.2.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in accordance with
the terms hereof. Each such certificate shall include the statements
provided for in Section 15.7, if and to the extent required by the provisions
thereof.
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"Opinion of Counsel" means an opinion in writing of legal counsel,
who may be an employee of or counsel for the Company, that is delivered to
the Trustee in accordance with the terms hereof. Each such opinion shall
include the statements provided for in Section 15.7, if and to the extent
required by the provisions thereof.
"Outstanding," when used with reference to the Debentures, means,
subject to the provisions of Section 10.4, as of any particular time, all
Debentures theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Debentures theretofore canceled by the Trustee or any
paying agent, or delivered to the Trustee or any paying agent for
cancellation or that have previously been canceled; (b) Debentures or
portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the
Company shall act as its own paying agent); provided, however, that if such
Debentures or portions of such Debentures are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in
Article III provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and (c) Debentures in lieu of or in
substitution for which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.7.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.3.
"Person" means any individual, corporation, partnership,
joint-venture, joint-stock company, unincorporated organization or government
or any agency or political subdivision thereof.
"Predecessor Debenture" means every previous Debenture evidencing
all or a portion of the same debt as that evidenced by such particular
Debenture; and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 2.9 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
"Preferred Securities" means undivided beneficial interests in the
assets of the Trust which rank pari passu with Common Securities issued by
the Trust; provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
(i) distributions, and (ii) payments upon liquidation, redemption and
otherwise, are subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the
Company may enter into with the Trustee or other Persons that operate
directly or indirectly for the benefit of holders of Preferred Securities.
"Property Trustee" has the meaning set forth in the Trust
Agreement.
"Responsible Officer" when used with respect to the Trustee means
the Chairman of the Board of Directors, the President, any Vice President,
the Secretary, the Treasurer, any trust officer, any corporate trust officer
or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Scheduled Maturity Date" means June 30, 2027.
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"Securities Act," means the Securities Act of 1933, as amended, as
in effect at the date of execution of this instrument.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether
or not such claim for post-petition interest is allowed in such proceeding),
on Debt, whether incurred on or prior to the date of this Indenture or
thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Debentures or to
other Debt which is pari passu with, or subordinated to, the Debentures;
provided, however, that Senior Debt shall not be deemed to include (i) any
Debt of the Company which when incurred and without respect to any election
under section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company; (ii) any Debt of the Company to
any of its subsidiaries; (iii) Debt to any employee of the Company; (iv) Debt
which by its terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the extent that
payments made to the holders of such Debt by the holders of the Debentures as
a result of the subordination provisions of this Indenture would be greater
than they otherwise would have been as a result of any obligation of such
holders to pay amounts over to the obligees on such trade accounts payable or
accrued liabilities arising in the ordinary course of business as a result of
subordination provisions to which such Debt is subject; and (v) Debt which
constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in Section
16.1.
"Special Event" means a Tax Event, a Capital Treatment Event or an
Investment Company Event.
"Subordinated Debt" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to the Company
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt, whether incurred on or prior to the date of this
Indenture or thereafter incurred, which is by its terms expressly provided to
be junior and subordinate to other Debt of the Company (other than the
Debentures).
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at
the time be owned, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries;
(ii) any general partnership, joint venture, trust or similar entity, at
least a majority of whose outstanding partnership or similar interests shall
at the time be owned by such Person, or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries; and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general
partner.
"Tax Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm having a recognized tax and securities
practice, to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under the Trust Agreement, there is more than an insubstantial
risk that (i) the Trust is, or shall be within 90 days after the date of such
Opinion of
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Counsel, subject to United States federal income tax with respect
to income received or accrued on the Debentures; (ii) interest payable by the
Company on the Debentures is not, or within 90 days after the date of such
Opinion of Counsel, shall not be, deductible by the Company, in whole or in
part, for United States federal income tax purposes; or (iii) the Trust is,
or shall be within 90 days after the date of such Opinion of Counsel, subject
to more than a de minimis amount of other taxes, duties, assessments or other
governmental charges. The Trust or the Company shall request and receive
such Opinion of Counsel with regard to such matters within a reasonable
period of time after the Trust or the Company shall have become aware of any
of the events described in clauses (i) through (iii) above.
"Trust" means Simmons First Capital Trust, a Delaware statutory
business trust.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated , 1997, of the Trust.
----------------
"Trustee" means State Street Bank and Trust Company and, subject
to the provisions of Article IX, shall also include its successors and
assigns, and, if at any time there is more than one Person acting in such
capacity hereunder, "Trustee" shall mean each such Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 11.1, 11.2, and 12.1, as in
effect at the date of execution of this instrument.
"Trust Securities" means the Common Securities and Preferred
Securities, collectively.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having such
power only by reason of the occurrence of a contingency.
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized Debentures designated the " %
------
Subordinated Debentures due 2027," limited in aggregate principal amount to
$17,783,525, which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Debentures pursuant to
Section 2.6.
SECTION 2.2. MATURITY.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to extend the Maturity Date
beyond the Scheduled Maturity Date in accordance
with Section 2.2(b), the Extended Maturity Date; or
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(iii) if the Company elects to accelerate the Maturity Date
to be a date prior to the Scheduled Maturity Date
in accordance with Section 2.2(c), the Accelerated
Maturity Date.
(b) the Company may at any time before the day which is 90 days
before the Scheduled Maturity Date, elect to extend the
Maturity Date to the Extended Maturity Date, provided that the
Company has received the prior approval of the Federal Reserve
if then required under applicable capital guidelines or
policies of the Federal Reserve and further provided that the
following conditions in this Section 2.2(b) are satisfied both
at the date the Company gives notice in accordance with
Section 2.2(d) of its election to extend the Maturity Date and
at the Scheduled Maturity Date:
(i) the Company is not in bankruptcy, otherwise insolvent
or in liquidation;
(ii) the Company is not in default in the payment of
interest or principal on the Debentures; and
(iii) the Trust is not in arrears on payments of
Distributions on the Trust Securities issued by it
and no deferred Distributions are accumulated.
(c) the Company may at any time before the day which is 90 days
before the Scheduled Maturity Date and after June 30,
2002, elect to shorten the Maturity Date only once to the
Accelerated Maturity Date provided that the Company has
received the prior approval of the Federal Reserve if
then required under applicable capital guidelines or
policies of the Federal Reserve.
(d) if the Company elects to extend the Maturity Date in
accordance with Section 2.2(b), the Company shall give
notice to the registered holders of the Debentures, the
Property Trustee and the Trust of the extension of the
Maturity Date and the Extended Maturity Date at least 90
days and no more than 180 days before the Scheduled
Maturity Date.
(e) if the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(c), the Company shall give
notice to the registered holders of the Debentures, the
Property Trustee and the Trust of the acceleration of the
Maturity Date and the Accelerated Maturity Date at least
90 days and no more than 180 days before the Accelerated
Maturity Date.
SECTION 2.3. FORM AND PAYMENT.
The Debentures shall be issued in fully registered certificated
form without interest coupons. Principal and interest on the Debentures
issued in certificated form shall be payable, the transfer of such Debentures
shall be registrable and such Debentures shall be exchangeable for Debentures
bearing identical terms and provisions at the office or agency of the
Trustee; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the holder at such address as shall
appear in the Debenture Register or by wire transfer to an account maintained
by the holder as specified in the Debenture Register, provided that the
holder provides proper transfer instructions by the regular record date.
Notwithstanding the foregoing, so long as the holder of any Debentures is the
Property Trustee, the payment of the principal of and interest (including
Compounded Interest and
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Additional Payment, if any) on such Debentures held by the Property Trustee
shall be made at such place and to such account as may be designated by the
Property Trustee.
SECTION 2.4. [INTENTIONALLY OMITTED].
SECTION 2.5. INTEREST.
(a) Each Debenture shall bear interest at the rate of % per
------
annum (the "Coupon Rate") from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date," commencing on September 30, 1997), to the
Person in whose name such Debenture or any Predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the last month of
the calendar quarter.
(b) The amount of interest payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount
of interest payable for any period shorter than a full quarterly period for
which interest is computed shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. In the event that
any date on which interest is payable on the Debentures is not a Business
Day, then payment of interest payable on such date shall be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if
made on the date such payment was originally payable.
(c) If, at any time while the Property Trustee is the holder of
any Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company shall pay as additional interest
(the "Additional Payment") on the Debentures held by the Property Trustee,
such additional amounts as shall be required so that the net amounts received
and retained by the Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges shall be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been imposed.
SECTION 2.6. EXECUTION AND AUTHENTICATIONS.
(a) The Debentures shall be signed on behalf of the Company by
its Chief Executive Officer, President or one of its Vice Presidents, under
its corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any Person who
shall have been a Chief Executive Officer, President or Vice President
thereof, or of any Person who shall have been a Secretary or Assistant
Secretary thereof, notwithstanding the fact that at the time the Debentures
shall be authenticated and delivered or disposed of such Person shall have
ceased to be the Chief Executive Officer, President or a Vice President, or
the Secretary or an Assistant Secretary of the Company. The seal of the
Company may be in the form of a facsimile of such seal and may be impressed,
affixed, imprinted or otherwise reproduced on the Debentures. The Debentures
may contain such notations, legends or endorsements required by law, stock
exchange rule or usage. Each Debenture shall be dated the date of its
authentication by the Trustee.
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(b) A Debenture shall not be valid until manually authenticated
by an authorized signatory of the Trustee, or by an Authenticating Agent.
Such signature shall be conclusive evidence that the Debenture so
authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures executed by
the Company to the Trustee for authentication, together with a written order
of the Company for the authentication and delivery of such Debentures signed
by its Chief Executive Officer, President or any Vice President and its
Treasurer or any Assistant Treasurer, and the Trustee in accordance with such
written order shall authenticate and deliver such Debentures.
(d) In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to such
Debentures, the Trustee shall be entitled to receive, and (subject to Section
9.1) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the
provisions of this Indenture.
(e) The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture shall
affect the Trustee's own rights, duties or immunities under the Debentures
and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.
SECTION 2.7. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) Debentures may be exchanged upon presentation thereof at the
office or agency of the Company designated for such purpose, or at the office
of the Debenture Registrar, for other Debentures and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section 2.7.
In respect of any Debentures so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Debenture or Debentures that the
Debentureholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose, or at the office of the Debenture
Registrar, or such other location designated by the Company a register or
registers (herein referred to as the "Debenture Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall
register the Debentures and the transfers of Debentures as in this Article II
provided and which at all reasonable times shall be open for inspection by
the Trustee. The registrar for the purpose of registering Debentures and
transfer of Debentures as herein provided shall initially be the Trustee and
thereafter as may be appointed by the Company as authorized by Board
Resolution (the "Debenture Registrar"). Upon surrender for transfer of any
Debenture at the office or agency of the Company designated for such purpose,
the Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in the name of the transferee or transferees a new
Debenture or Debentures for a like aggregate principal amount. All
Debentures presented or surrendered for exchange or registration of transfer,
as provided in this Section 2.7, shall be accompanied (if so required by the
Company or the Debenture Registrar) by a written instrument or instruments of
transfer, in form satisfactory to the Company or the Debenture Registrar,
duly executed by the registered holder or by such holder's duly authorized
attorney in writing.
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(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures in case of
partial redemption, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, other than
exchanges pursuant to Section 2.8, Section 3.5(b) and Section 11.4 not
involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debentures during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debentures and ending at the
close of business on the day of such mailing; nor (ii) to register the
transfer of or exchange any Debentures or portions thereof called for
redemption.
SECTION 2.8. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may
execute, and the Trustee shall authenticate and deliver, temporary Debentures
(printed, lithographed, or typewritten). Such temporary Debentures shall be
substantially in the form of the definitive Debentures in lieu of which they
are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Debentures, all as may be determined by the
Company. Every temporary Debenture shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Debentures. Without
unnecessary delay the Company shall execute and shall furnish definitive
Debentures and thereupon any or all temporary Debentures may be surrendered
in exchange therefor (without charge to the holders), at the office or agency
of the Company designated for the purpose, and the Trustee shall authenticate
and such office or agency shall deliver in exchange for such temporary
Debentures an equal aggregate principal amount of definitive Debentures,
unless the Company advises the Trustee to the effect that definitive
Debentures need not be executed and furnished until further notice from the
Company. Until so exchanged, the temporary Debentures shall be entitled to
the same benefits under this Indenture as definitive Debentures authenticated
and delivered hereunder.
SECTION 2.9. MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES.
(a) In case any temporary or definitive Debenture shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Debenture bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debenture, or in lieu of and in substitution
for the Debenture so destroyed, lost or stolen. In every case the applicant
for a substituted Debenture shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's Debenture
and of the ownership thereof. The Trustee may authenticate any such
substituted Debenture and deliver the same upon the written request or
authorization of the Chairman, President or any Vice-President and the
Treasurer or any Assistant Treasurer of the Company. Upon the issuance of
any substituted Debenture, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith. In case any Debenture that has matured
or is about to mature shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substitute Debenture, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Debenture) if the applicant for such payment
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shall furnish to the Company and the Trustee such security or indemnity as they
may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Debenture and of the ownership thereof.
(b) Every replacement Debenture issued pursuant to the provisions
of this Section 2.9 shall constitute an additional contractual obligation of
the Company whether or not the mutilated, destroyed, lost or stolen Debenture
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debentures duly issued hereunder. All Debentures
shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures, and shall preclude (to the
extent lawful) any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. CANCELLATION.
All Debentures surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or
any paying agent, be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be canceled by it, and no Debentures shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company at the time of
such surrender, the Trustee shall deliver to the Company canceled Debentures
held by the Trustee. In the absence of such request the Trustee may dispose
of canceled Debentures in accordance with its standard procedures and deliver
a certificate of disposition to the Company. If the Company shall otherwise
acquire any of the Debentures, however, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such
Debentures unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.11. BENEFIT OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Debentures (and, with respect to the
provisions of Article XVI, the holders of Senior Indebtedness) any legal or
equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such
covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Debentures (and, with respect to the
provisions of Article XVI, the holders of Senior Indebtedness).
SECTION 2.12. AUTHENTICATION AGENT.
(a) So long as any of the Debentures remain Outstanding there may
be an Authenticating Agent for any or all such Debentures, which the Trustee
shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Debentures issued
upon exchange, transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of
Debentures by the Trustee shall be deemed to include authentication by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall be a corporation that has a combined capital and surplus,
as most recently reported or determined by it, sufficient under the laws of
any jurisdiction under which it is
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organized or in which it is doing business to conduct a trust business, and that
is otherwise authorized under such laws to conduct such business and is subject
to supervision or examination by federal or state authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee
may at any time (and upon request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
ARTICLE III.
REDEMPTION OF DEBENTURES
SECTION 3.1. REDEMPTION.
Subject to the Company having received prior approval of the
Federal Reserve, if then required under the applicable capital guidelines or
policies of the Federal Reserve, the Company may redeem the Debentures issued
hereunder on and after the dates set forth in and in accordance with the
terms of this Article III.
SECTION 3.2. SPECIAL EVENT REDEMPTION.
Subject to the Company having received the prior approval of the
Federal Reserve, if then required under the applicable capital guidelines or
policies of the Federal Reserve, if a Special Event has occurred and is
continuing, then, notwithstanding Section 3.3, the Company shall have the
right upon not less than 30 days nor more than 60 days notice to the holders
of the Debentures to redeem the Debentures, in whole but not in part, for
cash within 180 days following the occurrence of such Special Event (the
"180-Day Period") at a redemption price equal to 100% of the principal amount
to be redeemed plus any accrued and unpaid interest thereon to the date of
such redemption (the "Redemption Price"), provided that if at the time there
is available to the Company the opportunity to eliminate, within the 180-Day
Period, a Tax Event by taking some ministerial action (a "Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on the Company, the
Trust or the holders of the Trust Securities issued by the Trust, the Company
shall pursue such Ministerial Action in lieu of redemption, and, provided
further, that the Company shall have no right to redeem the Debentures while
it is pursuing any Ministerial Action pursuant to its obligations hereunder,
and, provided further, that, if it is determined that the taking of a
Ministerial Action would not eliminate the Tax Event within the 180-Day
Period, the Company's right to redeem the Debentures shall be restored and it
shall have no further obligations to pursue the Ministerial Action. The
Redemption Price shall be paid prior to 12:00 noon, New York time, on the
date of such redemption or such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount sufficient
to pay the Redemption Price by 10:00 a.m., New York time, on the date such
Redemption Price is to be paid.
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SECTION 3.3. OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.3(b), except as
otherwise may be specified in this Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after June 30, 2002, at a Redemption Price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon to the
date of such redemption. Any redemption pursuant to this Section 3.3(a)
shall be made upon not less than 30 days nor more than 60 days notice to the
holder of the Debentures, at the Redemption Price. If the Debentures are
only partially redeemed pursuant to this Section 3.3, the Debentures shall be
redeemed pro rata or by lot or in such other manner as the Trustee shall deem
appropriate and fair in its discretion. The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or at such
earlier time as the Company determines provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Redemption Price by
10:00 a.m., New York time, on the date such Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from The Nasdaq
Stock Market's National Market or any comparable level or successor listing
or any national securities exchange or other organization on which the
Preferred Securities are then listed or quoted, the Company shall not be
permitted to effect such partial redemption and may only redeem the
Debentures in whole.
SECTION 3.4. NOTICE OF REDEMPTION.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Debentures in accordance
with the right reserved so to do, the Company shall, or shall cause the
Trustee to upon receipt of 45 days' written notice from the Company (which
notice shall, in the event of a partial redemption, include a representation
to the effect that such partial redemption shall not result in the delisting
of the Preferred Securities as described in Section 3.3(b) above), give
notice of such redemption to holders of the Debentures to be redeemed by
mailing, first class postage prepaid, a notice of such redemption not less
than 30 days and not more than 60 days before the date fixed for redemption
to such holders at their last addresses as they shall appear upon the
Debenture Register unless a shorter period is specified in the Debentures to
be redeemed. Any notice that is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture designated for redemption in whole
or in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Debentures. In the case of any
redemption of Debentures prior to the expiration of any restriction on such
redemption provided in the terms of such Debentures or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction. Each such
notice of redemption shall specify the date fixed for redemption and the
Redemption Price and shall state that payment of the Redemption Price shall
be made at the Corporate Trust Office, upon presentation and surrender of
such Debentures, that interest accrued to the date fixed for redemption shall
be paid as specified in said notice and that from and after said date
interest shall cease to accrue. If less than all the Debentures are to be
redeemed, the notice to the holders of the Debentures shall specify the
particular Debentures to be redeemed. If the Debentures are to be redeemed
in part only, the notice shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the redemption date,
upon surrender of such Debenture, a new Debenture or Debentures in principal
amount equal to the unredeemed portion thereof shall be issued.
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(b) If less than all the Debentures are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of the
date fixed for redemption as to the aggregate principal amount of Debentures
to be redeemed, and thereupon the Trustee shall select, by lot or in such
other manner as it shall deem appropriate and fair in its discretion, the
portion or portions (equal to $25 or any integral multiple thereof) of the
Debentures to be redeemed and shall thereafter promptly notify the Company in
writing of the numbers of the Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect pursuant to the terms
hereof, by delivery of instructions signed on its behalf by its President or
any Vice President, instruct the Trustee or any paying agent to call all or
any part of the Debentures for redemption and to give notice of redemption in
the manner set forth in this Section 3.4, such notice to be in the name of
the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Debenture Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the
provisions of this Section 3.4.
SECTION 3.5. PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debentures or portions of Debentures to be
redeemed specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable Redemption Price,
and interest on such Debentures or portions of Debentures shall cease to
accrue on and after the date fixed for redemption, unless the Company shall
default in the payment of such Redemption Price with respect to any such
Debenture or portion thereof. On presentation and surrender of such
Debentures on or after the date fixed for redemption at the place of payment
specified in the notice, said Debentures shall be paid and redeemed at the
Redemption Price (but if the date fixed for redemption is an interest payment
date, the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 3.3).
(b) Upon presentation of any Debenture that is to be redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
the office or agency where the Debenture is presented shall deliver to the
holder thereof, at the expense of the Company, a new Debenture of authorized
denomination in principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.6. NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the
term of the Debentures, to defer payments of interest by extending the
interest payment period of such Debentures for a period not exceeding 20
consecutive quarters (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no
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interest shall be due and payable; provided that no Extended Interest Payment
Period may extend beyond the Maturity Date. Interest, the payment of which has
been deferred because of the extension of the interest payment period pursuant
to this Section 4.1, shall bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extended Interest Payment Period (the
"Compounded Interest"). At the end of the Extended Interest Payment Period, the
Company shall calculate (and deliver such calculation to the Trustee) and pay
all interest accrued and unpaid on the Debentures, including any Additional
Payment and Compounded Interest (together, the "Deferred Payment") that shall
be payable to the holders of the Debentures in whose names the Debentures are
registered in the Debenture Register on the first record date after the end of
the Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date of the
Debentures. Upon the termination of any Extended Interest Payment Period and
upon the payment of all Deferred Payment then due, the Company may commence
a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may
prepay at any time all or any portion of the interest accrued during an
Extended Interest Payment Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Administrative Trustees,
the Property Trustee and the Trustee of its selection of such Extended
Interest Payment Period two Business Days before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities issued by the
Trust are payable; or (ii) the date the Trust is required to give notice of
the record date, or the date such Distributions are payable, to The Nasdaq
Stock Market's National Market or other applicable self-regulatory
organization or to holders of the Preferred Securities issued by the Trust,
but in any event at least one Business Day before such record date.
(b) If the Property Trustee is not the only holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Debentures and the Trustee
written notice of its selection of such Extended Interest Payment Period at
least two Business Days before the earlier of (i) the next succeeding
Interest Payment Date; or (ii) the date the Company is required to give
notice of the record or payment date of such interest payment to The Nasdaq
Stock Market's National Market or other applicable self-regulatory
organization or to holders of the Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarters permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
SECTION 4.3. LIMITATION ON TRANSACTIONS.
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1; or (ii) there shall have occurred any
Event of Default, then (a) the Company shall not declare or pay any dividend
or distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than (i) dividends
or distributions in common stock of the Company, or any declaration of a
non-cash dividend in connection with the implementation of a shareholders'
rights plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, and (ii) purchases
of common stock of the Company related to the rights
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under any of the Company's benefit plans for its directors, officers or
employees); (b) the Company shall not make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Company which rank pari passu with or junior in interest to the Debentures;
provided, however, that notwithstanding the foregoing the Company may make
payments pursuant to its obligations under the Preferred Securities
Guarantee; and (c) the Company shall not redeem, purchase or acquire less
than all of the outstanding Debentures or any of the Preferred Securities.
ARTICLE V.
PARTICULAR COVENANTS OF COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company shall duly and punctually pay or cause to be paid the
principal of and interest on the Debentures at the time and place and in the
manner provided herein. Each such payment of the principal of or interest on
the Debentures shall relate only to the Debentures, shall not be combined
with any other payment of the principal of or interest on any other
obligation of the Company, and shall be clearly and unmistakably identified
as pertaining to the Debentures.
SECTION 5.2. MAINTENANCE OF AGENCY.
So long as any of the Debentures remain Outstanding, the Company
shall maintain an office or agency at such location or locations as may be
designated as provided in this Section 5.2, where (i) Debentures may be
presented for payment; (ii) Debentures may be presented as hereinabove
authorized for registration of transfer and exchange; and (iii) notices and
demands to or upon the Company in respect of the Debentures and this
Indenture may be given or served, such designation to continue with respect
to such office or agency until the Company shall, by written notice signed by
its President or a Vice President and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, notices and demands. The
Company shall give the Trustee prompt written notice of any such designation
or rescission thereof.
SECTION 5.3. PAYING AGENTS.
(a) The Trustee shall act as the Paying Agent. If the Company
shall appoint one or more paying agents for the Debentures, other than the
Trustee, the Company shall cause each such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 5.3:
(i) that it shall hold all sums held by it as such agent
for the payment of the principal of or interest on the
Debentures (whether such sums have been paid to it by the
Company or by any other obligor of such Debentures) in trust
for the benefit of the Persons entitled thereto;
(ii) that it shall give the Trustee notice of any failure
by the Company (or by any other obligor of such Debentures) to
make any payment of the principal of or interest on the
Debentures when the same shall be due and payable;
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(iii) that it shall, at any time during the continuance of
any failure referred to in the preceding paragraph (a)(ii)
above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent;
and
(iv) that it shall perform all other duties of Paying
Agent as set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with respect
to the Debentures, it shall on or before each due date of the principal of or
interest on such Debentures, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such
principal or interest so becoming due on Debentures until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and shall
promptly notify the Trustee of such action, or any failure (by it or any
other obligor on such Debentures) to take such action. Whenever the Company
shall have one or more Paying Agents for the Debentures, it shall, prior to
each due date of the principal of or interest on any Debentures, deposit with
the Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of this action or
failure so to act.
(c) Notwithstanding anything in this Section 5.3 to the contrary,
(i) the agreement to hold sums in trust as provided in this Section 5.3 is
subject to the provisions of Section 13.3 and 13.4; and (ii) the Company may
at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same terms and conditions
as those upon which such sums were held by the Company or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
SECTION 5.4. APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, shall appoint, in the manner provided in Section 9.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 5.5. COMPLIANCE WITH CONSOLIDATION PROVISIONS.
The Company shall not, while any of the Debentures remain
outstanding, consolidate with, or merge into, or merge into itself, or sell
or convey all or substantially all of its property to any other company
unless the provisions of Article XII hereof are complied with.
SECTION 5.6. LIMITATION ON TRANSACTIONS.
If Debentures are issued to the Trust or a trustee of the Trust in
connection with the issuance of Trust Securities by the Trust and (i) there
shall have occurred any event that would constitute an Event of Default;
(ii) the Company shall be in default with respect to its payment of any
obligations under the Preferred Securities Guarantee relating to the Trust;
or (iii) the Company shall have given notice of its election to defer
payments of interest on such Debentures by extending the interest payment
period as provided in this Indenture and such period, or any extension
thereof, shall be continuing, then (a) the Company shall not declare or pay
any dividends or distributions on, or redeem, purchase, acquire or
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make a liquidation payment with respect to, any of its capital stock (other than
(i) dividends or distributions in common stock of the Company, or any
declaration of a non-cash dividend in connection with the implementation of a
shareholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto, and (ii) purchases of common stock of the Company related to the
rights under any of the Company's benefit plans for its directors, officers
or employees); (b) the Company shall not make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with or junior in
interest to the Debentures; provided, however, that the Company may make
payments pursuant to its obligations under the Preferred Securities
Guarantee; and (c) the Company shall not redeem, purchase or acquire less
than all of the outstanding Debentures or any of the Preferred Securities.
SECTION 5.7. COVENANTS AS TO THE TRUST.
For so long as the Trust Securities of the Trust remain
outstanding, the Company shall (i) maintain 100% direct or indirect ownership
of the Common Securities of the Trust; provided, however, that any permitted
successor of the Company under this Indenture may succeed to the Company's
ownership of the Common Securities; (ii) not voluntarily terminate, wind up
or liquidate the Trust, except upon prior approval of the Federal Reserve if
then so required under applicable capital guidelines or policies of the
Federal Reserve and use its reasonable efforts to cause the Trust (a) to
remain a business trust, except in connection with a distribution of
Debentures, the redemption of all of the Trust Securities of the Trust, or
certain mergers, consolidations or amalgamations, each as permitted by the
Trust Agreement; and (b) to otherwise continue not to be treated as an
association taxable as a corporation or partnership for United States federal
income tax purposes; and (iii) use its reasonable efforts to cause each
holder of Trust Securities to be treated as owning an individual beneficial
interest in the Debentures. In connection with the distribution of the
Debentures to the holders of the Preferred Securities issued by the Trust
upon a Dissolution Event, the Company shall use its best efforts to list such
Debentures on The Nasdaq Stock Market's National Market or on such other
exchange as the Preferred Securities are then listed.
SECTION 5.8. COVENANTS AS TO PURCHASES.
Except upon the exercise by the Company of its right to redeem the
Debentures pursuant to Section 3.2 upon the occurrence and continuation of a
Special Event, the Company shall not purchase any Debentures, in whole or in
part, from the Trust prior to June 30, 2002.
ARTICLE VI.
DEBENTUREHOLDERS' LISTS AND REPORTS
BY COMPANY AND TRUSTEE
SECTION 6.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS.
The Company shall furnish or cause to be furnished to the Trustee
(a) on a quarterly basis on each regular record date (as described in
Section 2.5) a list, in such form as the Trustee may reasonably require, of
the names and addresses of the holders of the Debentures as of such regular
record date, provided that the Company shall not be obligated to furnish or
cause to furnish such list at any time that the list shall not differ in any
respect from the most recent list furnished to the Trustee by the Company
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(in the event the Company fails to provide such list on a quarterly basis, the
Trustee shall be entitled to rely on the most recent list provided by the
Company); and (b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that, in either case, no such
list need be furnished if the Trustee shall be the Debenture Registrar.
SECTION 6.2. PRESERVATION OF INFORMATION COMMUNICATIONS WITH
DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debentures contained in the most recent list furnished to it as
provided in Section 6.1 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture Registrar for
the Debentures (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 6.1 upon receipt of a new list so furnished.
(c) Debentureholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Debentureholders with respect to
their rights under this Indenture or under the Debentures.
SECTION 6.3. REPORTS BY COMPANY.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then
to file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service that provides
for evidence of receipt, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to subsections (a) and
(b) of this Section 6.3 as may be required by rules and regulations
prescribed from time to time by the Commission.
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SECTION 6.4. REPORTS BY TRUSTEE.
(a) On or before July 15 in each year in which any of the
Debentures are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Debentureholders, as their names and addresses appear
upon the Debenture Register, a brief report dated as of the preceding May 15,
if and to the extent required under Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Debentures are listed (if so listed)
and also with the Commission. The Company agrees to notify the Trustee when
any Debentures become listed on any stock exchange.
ARTICLE VII.
REMEDIES OF TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT.
(a) Whenever used herein with respect to the Debentures, "Event
of Default" means any one or more of the following events that has occurred
and is continuing:
(i) the Company defaults in the payment of any installment
of interest upon any of the Debentures, as and when the same
shall become due and payable, and continuance of such default
for a period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company in
accordance with the terms of this Indenture shall not
constitute a default in the payment of interest for this
purpose;
(ii) the Company defaults in the payment of the principal
on the Debentures as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or
otherwise; provided, however, that a valid extension of the
maturity of such Debentures in accordance with the terms of
this Indenture shall not constitute a default in the payment of
principal;
(iii) the Company fails to observe or perform any other of
its covenants or agreements with respect to the Debentures for
a period of 90 days after the date on which written notice of
such failure, requiring the same to be remedied and stating
that such notice is a "Notice of Default" hereunder, shall have
been given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Debentures
at the time Outstanding;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case; (ii) consents to
the entry of an order for relief against it in an involuntary
case; (iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property; or (iv) makes a
general assignment for the benefit of its creditors;
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(v) a court of competent jurisdiction enters an order under
any Bankruptcy Law that (i) is for relief against the Company
in an involuntary case; (ii) appoints a Custodian of the
Company for all or substantially all of its property; or
(iii) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(vi) the Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of
Debentures to holders of Trust Securities in liquidation of
their interests in the Trust; (ii) the redemption of all of the
outstanding Trust Securities of the Trust; or (iii) certain
mergers, consolidations or amalgamations, each as permitted by
the Trust Agreement.
(b) In each and every such case referred to in items (i) through
(vi) of Section 7.1(a), unless the principal of all the Debentures shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the Debentures then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given
by such Debentureholders) may declare the principal of all the Debentures to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, notwithstanding anything
contained in this Indenture or in the Debentures.
(c) At any time after the principal of the Debentures shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the
Debentures then Outstanding hereunder, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Debentures and the
principal of any and all Debentures that shall have become due otherwise than
by acceleration (with interest upon such principal, and upon overdue
installments of interest, at the rate per annum expressed in the Debentures
to the date of such payment or deposit) and the amount payable to the Trustee
under Section 9.7; and (ii) any and all Events of Default under this
Indenture, other than the nonpayment of principal on Debentures that shall
not have become due by their terms, shall have been remedied or waived as
provided in Section 7.6. No such rescission and annulment shall extend to or
shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debentures under this Indenture and such proceedings shall
have been discontinued or abandoned because of such rescission or annulment
or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
SECTION 7.2. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
(a) The Company covenants that (1) in case it shall default in
the payment of any installment of interest on any of the Debentures, and such
default shall have continued for a period of 90 Business Days; or (2) in case
it shall default in the payment of the principal of any of the Debentures
when the same shall have become due and payable, whether upon maturity of the
Debentures or upon redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company shall pay to the Trustee, for the benefit
of the holders of the Debentures, the whole amount that then shall have been
become due and
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payable on all such Debentures for principal or interest, or
both, as the case may be, with interest upon the overdue principal and (if
the Debentures are held by the Trust or a trustee of the Trust, without
duplication of any other amounts paid by the Trust or trustee in respect
thereof) upon overdue installments of interest at the rate per annum
expressed in the Debentures; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 9.7.
(b) If the Company shall fail to pay such amounts set forth in
Section 7.2(a) forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Company or other obligor upon the Debentures and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or other obligor upon the Debentures, wherever
situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company or the creditors or property
thereof, the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and shall (except
as may be otherwise provided by law) be entitled to file such proofs of claim
and other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of the Debentures allowed
for the entire amount due and payable by the Company under this Indenture at
the date of institution of such proceedings and for any additional amount
that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on
any such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 9.7; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized by each of the
holders of the Debentures to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly
to such Debentureholders, to pay to the Trustee any amount due it under
Section 9.7.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures,
may be enforced by the Trustee without the possession of any of such
Debentures, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the Trustee of any
amounts due under Section 9.7, be for the ratable benefit of the holders of
the Debentures. In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debentures or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Debentureholder in any such
proceeding.
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SECTION 7.3. APPLICATION OF MONEYS COLLECTED.
Any moneys collected by the Trustee pursuant to this Article VII
with respect to the Debentures shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon presentation of the
Debentures, and notation thereon of the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
and of all amounts payable to the Trustee under Section 9.7;
SECOND: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article XVI; and
THIRD: To the payment of the amounts then due and unpaid
upon the Debentures for principal and interest, in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debentures for
principal and interest, respectively.
SECTION 7.4. LIMITATION ON SUITS.
(a) Except as provided in section 15.13 hereof, no holder of any
Debenture shall have any right by virtue or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Indenture or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless (i) such
holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof with respect to the Debentures
specifying such Event of Default, as hereinbefore provided; (ii) the holders
of not less than 25% in aggregate principal amount of the Debentures then
Outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as trustee hereunder;
(iii) such holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (iv) the Trustee for 60
days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding; and (v) during
such 60 day period, the holders of a majority in principal amount of the
Debentures do not give the Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or
any other provisions of this Indenture, the right of any holder of the
Debentures to receive payment of the principal of and interest on the
Debentures, as therein provided, on or after the respective due dates
expressed in such Debenture (or in the case of redemption, on the redemption
date), or to institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Debenture
hereunder it is expressly understood, intended and covenanted by the taker
and holder of every Debenture with every other such taker and holder and the
Trustee, that no one or more holders of Debentures shall have any right in
any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any
other of such Debentures, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Debentures. For the protection and
enforcement of the provisions of this Section 7.4, each and every
Debentureholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
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SECTION 7.5. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER.
(a) Except as otherwise provided in Section 2.9, all powers and
remedies given by this Article VII to the Trustee or to the Debentureholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any other powers and remedies available to the Trustee or the holders of
the Debentures, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any
of the Debentures to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 7.4, every
power and remedy given by this Article VII or by law to the Trustee or the
Debentureholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Debentureholders.
SECTION 7.6. CONTROL BY DEBENTUREHOLDERS.
The holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding, determined in accordance with Section
10.4, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee; provided, however, that such
direction shall not be in conflict with any rule of law or with this
Indenture. Subject to the provisions of Section 9.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability. The holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding affected thereby, determined in accordance
with Section 10.4, may on behalf of the holders of all of the Debentures
waive any past default in the performance of any of the covenants contained
herein and its consequences, except (i) a default in the payment of the
principal of or interest on any of the Debentures as and when the same shall
become due by the terms of such Debentures otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal has been deposited with the Trustee
(in accordance with Section 7.1(c)); (ii) a default in the covenants
contained in Section 5.6; or (iii) in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the holder
of each Outstanding Debenture affected; provided, however, that if the
Debentures are held by the Trust or a trustee of the Trust, such waiver or
modification to such waiver shall not be effective until the holders of a
majority in liquidation preference of Trust Securities of the Trust shall
have consented to such waiver or modification to such waiver; provided
further, that if the consent of the holder of each Outstanding Debenture is
required, such waiver shall not be effective until each holder of the Trust
Securities of the Trust shall have consented to such waiver. Upon any such
waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of
the Debentures shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 7.7. UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any
Debentures by such holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
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enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 7.7
shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Debentureholder, or group of Debentureholders holding more than 10% in
aggregate principal amount of the Outstanding Debentures, or to any suit
instituted by any Debentureholder for the enforcement of the payment of the
principal of or interest on the Debentures, on or after the respective due
dates expressed in such Debenture or established pursuant to this Indenture.
ARTICLE VIII.
FORM OF DEBENTURE AND ORIGINAL ISSUE
SECTION 8.1. FORM OF DEBENTURE.
The Debenture and the Trustee's Certificate of Authentication to
be endorsed thereon are to be substantially in the forms contained as
Exhibit A attached hereto and incorporated herein by reference.
SECTION 8.2. ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of $15,463,925 may,
upon execution of this Indenture, be executed by the Company and delivered to
the Trustee for authentication. If the Underwriters exercise their Option
and there is an Option Closing Date (as such terms are defined in the
Underwriting Agreement, dated , 1997, by and among the Company,
-----------
the Trust and Stifel Nicolaus & Company, Incorporated, for itself and as
representative of the Underwriters named therein) then, on such Option
Closing Date, Debentures in the additional aggregate principal amount of up
to $2,319,600 may be executed by the Company and delivered to the Trustee for
authentication. In either such event, the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its Vice Chairman, its President, or any
Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
ARTICLE IX.
CONCERNING TRUSTEE
SECTION 9.1. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform with respect to the Debentures such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In case an
Event of Default has occurred that has not been cured or waived, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
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(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(i) the duties and obligations of the Trustee shall
with respect to the Debentures be determined solely by the
express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Debentures except
for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Debentures
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of not less than a majority in
principal amount of the Debentures at the time Outstanding relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the
Debentures; and
(4) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured
to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 9.2. NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer of
the Trustee of the occurrence of any default hereunder with respect to the
Debentures, the Trustee shall transmit by mail to all holders of the
Debentures, as their names and addresses appear in the Debenture Register,
notice of such default, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of
the principal or interest (including any Additional Payment) on any
Debenture, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust
committee of the directors and/or Responsible Officers of the Trustee
determines in good faith that the withholding of such notice is in the
interests of the holders of such Debentures; and provided, further, that in
the case of any default of the character specified in section 7.1(a)(iii), no
such notice to holders of Debentures need be sent until at least 30 days
after the occurrence
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thereof. For the purposes of this Section 9.2, the term "default" means any
event which is, or after notice or lapse of time or both, would become, an Event
of Default with respect to the Debentures.
SECTION 9.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 9.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by the President or any Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer thereof (unless other evidence in respect thereof is
specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a
default or an Event of Default, other than an Event of Default specified in
Section 7.1(a)(i) or (ii), unless and until it receives written notification
of such Event of Default from the Company or by holders of at least 25% of
the aggregate principal amount of the Debentures at the time Outstanding;
(d) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default (that has not been cured or waived) to exercise with respect
to the Debentures such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs;
(f) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security, or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the
Outstanding Debentures (determined as provided in Section 10.4); provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses or
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liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 9.4. TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.
(a) The Recitals contained herein and in the Debentures shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the proceeds of
such Debentures, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture, or for the use or
application of any moneys received by any paying agent other than the
Trustee.
SECTION 9.5. MAY HOLD DEBENTURES.
The Trustee or any Paying Agent or Debenture Registrar for the
Debentures, in its individual or any other capacity, may become the owner or
pledgee of Debentures with the same rights it would have if it were not
Trustee, Paying Agent or Debenture Registrar.
SECTION 9.6. MONEYS HELD IN TRUST.
Subject to the provisions of Section 13.5, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any moneys received by it hereunder except
such as it may agree with the Company to pay thereon.
SECTION 9.7. COMPENSATION AND REIMBURSEMENT.
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee may from time to
time agree in writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties hereunder of the Trustee, and, except as otherwise expressly
provided herein, the Company shall pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless
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against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection
with the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section 9.7 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debentures upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Debentures.
SECTION 9.8. RELIANCE ON OFFICERS' CERTIFICATE.
Except as otherwise provided in Section 9.1, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof.
SECTION 9.9. DISQUALIFICATION: CONFLICTING INTERESTS.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 9.10. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee with respect to the
Debentures issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America
or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, and subject to
supervision or examination by federal, state, territorial, or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section
9.10, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.10, the Trustee
shall resign immediately in the manner and with the effect specified in
Section 9.11.
SECTION 9.11. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee or any successor hereafter appointed, may at any
time resign by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to
the Debentureholders, as their names and addresses appear upon the Debenture
Register.
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Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Debentures by written
instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee with
respect to Debentures, or any Debentureholder who has been a bona fide holder
of a Debenture or Debentures for at least six months may, subject to the
provisions of Section 9.11, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur
(i) the Trustee shall fail to comply with the provisions
of Section 9.9 after written request therefor by the Company or by
any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.10 and shall fail to resign
after written request therefor by the Company or by any such
Debentureholder; or
(iii) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or commence a
voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the
Company may remove the Trustee with respect to all Debentures
and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to
the provisions of Section 9.9, unless the Trustee's duty to
resign is stayed as provided herein, any Debentureholder who
has been a bona fide holder of a Debenture or Debentures for at
least six months may, on behalf of that holder and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Debentures at the time Outstanding may at any time remove the Trustee by
so notifying the Trustee and the Company and may appoint a successor Trustee
with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Debentures pursuant to any of the
provisions of this Section 9.11 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 9.12.
(e) Any successor trustee appointed pursuant to this Section 9.11
may be appointed with respect to the Debentures, and at any time there shall
be only one Trustee with respect to the Debentures.
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SECTION 9.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor trustee
with respect to the Debentures, every successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee; but,
on the request of the Company or the successor trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon request of any successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in Section 9.12(a).
(c) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article IX.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section 9.12, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid, to
the Debentureholders, as their names and addresses appear upon the Debenture
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 9.13. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 9.9 and
eligible under the provisions of Section 9.10, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any
Debentures shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Debentures so authenticated with the same effect as if such successor Trustee
had itself authenticated such Debentures.
SECTION 9.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.
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ARTICLE X.
CONCERNING DEBENTUREHOLDERS
SECTION 10.1. EVIDENCE OF ACTION BY HOLDERS.
(a) Whenever in this Indenture it is provided that the holders of
a majority or specified percentage in aggregate principal amount of the
Debentures may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the
holders of such majority or specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Debentures in Person or by agent or proxy
appointed in writing.
(b) If the Company shall solicit from the Debentureholders any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for the determination of
Debentureholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action may
be given before or after the record date, but only the Debentureholders of
record at the close of business on the record date shall be deemed to be
Debentureholders for the purposes of determining whether Debentureholders of
the requisite proportion of Outstanding Debentures have authorized or agreed
or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action, and for that purpose the Outstanding
Debentures shall be computed as of the record date; provided, however, that
no such authorization, agreement or consent by such Debentureholders on the
record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after
the record date.
SECTION 10.2. PROOF OF EXECUTION BY DEBENTUREHOLDERS.
Subject to the provisions of Section 9.1, proof of the execution
of any instrument by a Debentureholder (such proof shall not require
notarization) or his agent or proxy and proof of the holding by any Person of
any of the Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section 10.2 as it shall deem necessary.
SECTION 10.3. WHO MAY BE DEEMED OWNERS.
Prior to the due presentment for registration of transfer of any
Debenture, the Company, the Trustee, any Paying Agent, any Authenticating
Agent and any Debenture Registrar may deem and treat the Person in whose name
such Debenture shall be registered upon the books of the Company as the
absolute owner of such Debenture (whether or not such Debenture shall be
overdue and notwithstanding
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any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of or on account of
the principal of and interest on such Debenture (subject to Section 2.3) and for
all other purposes; and neither the Company nor the Trustee nor any Paying Agent
nor any Authenticating Agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
SECTION 10.4. CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED.
In determining whether the holders of the requisite aggregate
principal amount of Debentures have concurred in any direction, consent or
waiver under this Indenture, the Debentures that are owned by the Company or
any other obligor on the Debentures or by any Person directly or indirectly
controlling or controlled by or under common control with the Company or any
other obligor on the Debentures shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Debentures that the Trustee
actually knows are so owned shall be so disregarded. The Debentures so owned
that have been pledged in good faith may be regarded as Outstanding for the
purposes of this Section 10.4, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Debentures and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
SECTION 10.5. ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 10.1, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Debentures specified in this Indenture in connection with such action, any
holder of a Debenture that is shown by the evidence to be included in the
Debentures the holders of which have consented to such action may, by filing
written notice with the Trustee, and upon proof of holding as provided in
Section 10.2, revoke such action so far as concerns such Debenture. Except as
aforesaid any such action taken by the holder of any Debenture shall be
conclusive and binding upon such holder and upon all future holders and
owners of such Debenture, and of any Debenture issued in exchange therefor,
on registration of transfer thereof or in place thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debenture.
Any action taken by the holders of the majority or percentage in aggregate
principal amount of the Debentures specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Debentures.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF DEBENTUREHOLDERS.
In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect),
without the consent of the Debentureholders, for one or more of the following
purposes:
(a) to cure any ambiguity, defect, or inconsistency herein or in
the Debentures;
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(b) to comply with Article X;
(c) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any of the Debentures or to surrender any right or power
herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes of
issue, authentication, and delivery of Debentures, as herein set forth;
(f) to make any change that does not adversely affect the rights
of any Debentureholder in any material respect;
(g) to provide for the issuance of and establish the form and
terms and conditions of the Debentures, to establish the form of any
certifications required to be furnished pursuant to the terms of this
Indenture or of the Debentures, or to add to the rights of the holders of the
Debentures;
(h) qualify or maintain the qualification of this Indenture under
the Trust Indenture Act; or
(i) to evidence a consolidation or merger involving the Company
as permitted under Section 21.1.
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture that
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise. Any supplemental indenture authorized by the provisions of
this Section 11.1 may be executed by the Company and the Trustee without the
consent of the holders of any of the Debentures at the time Outstanding,
notwithstanding any of the provisions of Section 11.2.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBENTUREHOLDERS.
With the consent (evidenced as provided in Section 10.1) of the
holders of not less than a majority in aggregate principal amount of the
Debentures at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner not covered by Section 11.1 the rights of the holders of the
Debentures under this Indenture; provided, however, that no such supplemental
indenture shall without the consent of the holders of each Debenture then
Outstanding and affected thereby, (i) extend the fixed maturity of any
Debentures, reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, without the consent of the holder of
each Debenture so affected; or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any such
supplemental indenture; provided further, that if the Debentures are held by
the Trust or a trustee of the Trust, such supplemental indenture shall not be
effective until the holders of a majority in liquidation preference of Trust
Securities of the Trust shall have consented to such supplemental indenture;
provided further, that if the consent of the holder of each Outstanding
Debenture is required, such supplemental indenture shall not be effective
until
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each holder of the Trust Securities of the Trust shall have consented to such
supplemental indenture. It shall not be necessary for the consent of the
Debentureholders affected thereby under this Section 11.2 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
SECTION 11.3. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article XI, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 11.4. DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES.
Debentures affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture pursuant to the
provisions of this Article XI, may bear a notation in form approved by the
Company, provided such form meets the requirements of any exchange upon which
the Debentures may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debentures so
modified as to conform, in the opinion of the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Debentures then Outstanding.
SECTION 11.5. EXECUTION OF SUPPLEMENTAL INDENTURES.
(a) Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of
Debentureholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may
in its discretion but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of Sections 9.1, may
receive an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article XI is authorized or permitted by,
and conforms to, the terms of this Article XI and that it is proper for the
Trustee under the provisions of this Article XI to join in the execution
thereof.
(b) Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this Section
11.5, the Trustee shall transmit by mail, first class postage prepaid, a
notice, setting forth in general terms the substance of such supplemental
indenture, to the Debentureholders as their names and addresses appear upon
the Debenture Register. Any failure of the Trustee to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
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ARTICLE XII.
SUCCESSOR CORPORATION
SECTION 12.1. COMPANY MAY CONSOLIDATE, ETC.
Nothing contained in this Indenture or in any of the Debentures
shall prevent any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the
Company, as the case may be), or successive consolidations or mergers in
which the Company, as the case may be, or its successor or successors shall
be a party or parties, or shall prevent any sale, conveyance, transfer or
other disposition of the property of the Company, as the case may be, or its
successor or successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the Company, as the
case may be, or its successor or successors) authorized to acquire and
operate the same; provided, however, that the Company hereby covenants and
agrees that, (i) upon any such consolidation, merger, sale, conveyance,
transfer or other disposition, the due and punctual payment, in the case of
the Company, of the principal of and interest on all of the Debentures,
according to their tenor and the due and punctual performance and observance
of all the covenants and conditions of this Indenture to be kept or performed
by the Company as the case may be, shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company, as the case may be, shall have been
merged, or by the entity which shall have acquired such property; (ii) in
case the Company consolidates with or merges into another Person or conveys
or transfers its properties and assets substantially as an entirety to any
Person, the successor Person is organized under the laws of the United States
or any state or the District of Columbia; and (iii) immediately after giving
effect thereto, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred
and be continuing.
SECTION 12.2. SUCCESSOR CORPORATION SUBSTITUTED.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of
the principal of and interest on all of the Debentures Outstanding and the
due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Debentures.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not
in substance) may be made in the Debentures thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or acquiring by
purchase or otherwise all or any part of the property of any other Person
(whether or not affiliated with the Company).
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SECTION 12.3. EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.
The Trustee, subject to the provisions of Section 9.1, may receive
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article XII.
ARTICLE XIII.
SATISFACTION AND DISCHARGE
SECTION 13.1. SATISFACTION AND DISCHARGE OF INDENTURE.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Debentures theretofore authenticated (other than
any Debentures that shall have been destroyed, lost or stolen and that shall
have been replaced or paid as provided in Section 2.9) and Debentures for
whose payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company (and
thereupon repaid to the Company or discharged from such trust, as provided in
Section 13.5); or (b) all such Debentures not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations sufficient, or a combination thereof, sufficient in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
at maturity or upon redemption all Debentures not theretofore delivered to
the Trustee for cancellation, including principal and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company; then this Indenture shall thereupon cease
to be of further effect except for the provisions of Sections 2.3, 2.7, 2.9,
5.1, 5.2, 5.3 and 9.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 9.6 and 13.5, that shall
survive to such date and thereafter, and the Trustee, on demand of the
Company and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture.
SECTION 13.2. DISCHARGE OF OBLIGATIONS.
If at any time all Debentures not heretofore delivered to the
Trustee for cancellation or that have not become due and payable as described
in Section 13.1 shall have been paid by the Company by depositing irrevocably
with the Trustee as trust funds moneys or an amount of Governmental
Obligations sufficient in the opinion of a nationally recognized certified
public accounting firm to pay at maturity or upon redemption all Debentures
not theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay
or cause to be paid all other sums payable hereunder by the Company, then
after the date such moneys or Governmental Obligations, as the case may be,
are deposited with the Trustee, the obligations of the Company under this
Indenture shall cease to be of further effect except for the provisions of
Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.6, 9.10 and 13.5 hereof that shall
survive until such Debentures shall mature and be paid. Thereafter, Sections
9.6 and 13.5 shall survive.
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SECTION 13.3. DEPOSITED MONEYS TO BE HELD IN TRUST.
All monies or Governmental Obligations deposited with the Trustee
pursuant to Sections 13.1 or 13.2 shall be held in trust and shall be
available for payment as due, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the holders of the
Debentures for the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
SECTION 13.4. PAYMENT OF MONIES HELD BY PAYING AGENTS.
In connection with the satisfaction and discharge of this
Indenture, all moneys or Governmental Obligations then held by any Paying
Agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 13.5. REPAYMENT TO COMPANY.
Any monies or Governmental Obligations deposited with any Paying
Agent or the Trustee, or then held by the Company in trust, for payment of
principal of or interest on the Debentures that are not applied but remain
unclaimed by the holders of such Debentures for at least two years after the
date upon which the principal of or interest on such Debentures shall have
respectively become due and payable, shall be repaid to the Company, as the
case may be, on May 31 of each year or (if then held by the Company) shall be
discharged from such trust; and thereupon the Paying Agent and the Trustee
shall be released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Debentures entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Company for the payment thereof.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.1. NO RECOURSE.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of the Debentures, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that
this Indenture and the obligations issued hereunder are solely corporate
obligations, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Debentures or implied
therefrom; and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or statute, and
any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the
indebtedness hereby authorized,
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or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Debentures.
ARTICLE XV.
MISCELLANEOUS PROVISIONS
SECTION 15.1. EFFECT ON SUCCESSORS AND ASSIGNS.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 15.2. ACTIONS BY SUCCESSOR.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the
Company.
SECTION 15.3. SURRENDER OF COMPANY POWERS.
The Company by instrument in writing executed by appropriate
authority of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company, as the case may be,
and as to any successor corporation.
SECTION 15.4. NOTICES.
Except as otherwise expressly provided herein any notice or demand
that by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the holders of Debentures to or on the Company
may be given or served by being deposited first class postage prepaid in a
post-office letterbox addressed (until another address is filed in writing by
the Company with the Trustee), as follows: c/o Simmons First National
Corporation, 501 Main Street, Pine Bluff, Arkansas 71601, Attention: Chief
Executive Officer. Any notice, election, request or demand by the Company or
any Debentureholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
SECTION 15.5. GOVERNING LAW.
This Indenture and each Debenture shall be deemed to be a contract
made under the internal laws of the State of Arkansas and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 15.6. TREATMENT OF DEBENTURES AS DEBT.
It is intended that the Debentures shall be treated as
indebtedness and not as equity for federal income tax purposes. The
provisions of this Indenture shall be interpreted to further this intention.
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SECTION 15.7. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion of the Company provided for in
this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (1) a statement that
the Person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based; (3) a statement that, in the
opinion of such Person, he has made such examination or investigation as, in
the opinion of such Person, is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been complied
with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 15.8. PAYMENTS ON BUSINESS DAYS.
In any case where the date of maturity of interest or principal of
any Debenture or the date of redemption of any Debenture shall not be a
Business Day, then payment of interest or principal may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 15.9. CONFLICT WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 15.10. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
SECTION 15.11. SEPARABILITY.
In case any one or more of the provisions contained in this
Indenture or in the Debentures shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or
of the Debentures, but this Indenture and the Debentures shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
42
<PAGE> 48
SECTION 15.12. ASSIGNMENT.
The Company shall have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any
such assignment, the Company shall remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
SECTION 15.13. ACKNOWLEDGMENT OF RIGHTS; RIGHT OF SETOFF.
(a) The Company acknowledges that, with respect to any Debentures
held by the Trust or a trustee of the Trust, if the Property Trustee fails to
enforce its rights under this Indenture as the holder of the Debentures held
as the assets of the Trust, any holder of Preferred Securities may institute
legal proceedings directly against the Company to enforce such Property
Trustee's rights under this Indenture without first instituting any legal
proceedings against such Property Trustee or any other person or entity.
Notwithstanding the foregoing, and notwithstanding the provisions of Section
7.4(a) hereof, if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or
principal on the Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the redemption date), the
Company acknowledges that a holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the Debentures having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder
on or after the respective due date specified in the Debentures.
(b) Notwithstanding anything to the contrary contained in this
Indenture, the Company shall have the right of setoff any payment it is
otherwise required to make hereunder in respect of any Trust Securities to
the extent that the Company has previously made, or is concurrently making, a
payment to the holder of such Trust Securities under the Guarantee or in
connection with a proceeding for enforcement of payment of the principal of
or interest on the Debentures directly brought by holders of any Trust
Securities.
ARTICLE XVI.
SUBORDINATION OF DEBENTURES
SECTION 16.1. AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each holder of Debentures
issued hereunder by such holder's acceptance thereof likewise covenants and
agrees, that all Debentures shall be issued subject to the provisions of this
Article XVI; and each holder of a Debenture, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and interest on
all Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to the
prior payment in full of all Senior Debt, Subordinated Debt and Additional
Senior Obligations (collectively, "Senior Indebtedness") to the extent
provided herein, whether outstanding at the date of this Indenture or
thereafter incurred. No provision of this Article XVI shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 16.2. DEFAULT ON SENIOR DEBT, SUBORDINATED DEBT OR
ADDITIONAL SENIOR OBLIGATIONS.
43
<PAGE> 49
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment
due on any Senior Indebtedness of the Company, or in the event that the
maturity of any Senior Indebtedness of the Company has been accelerated
because of a default, then, in either case, no payment shall be made by the
Company with respect to the principal (including redemption payments) of or
interest on the Debentures. In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee when such payment is
prohibited by the preceding sentence of this Section 16.2, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered to,
the holders of Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior Indebtedness
(or their representative or representatives or a trustee) notify the Trustee
in writing within 90 days of such payment of the amounts then due and owing
on the Senior Indebtedness and only the amounts specified in such notice to
the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 16.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness of the Company shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before
any payment is made by the Company on account of the principal or interest on
the Debentures; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the holders of the Debentures or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article XVI,
shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the holders of the Debentures or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated
by the Company) or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing
such Senior Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay such Senior Indebtedness in full,
in money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the holders of Debentures or to the
Trustee.
(b) In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received
by the Trustee before all Senior Indebtedness of the Company is paid in full,
or provision is made for such payment in money in accordance with its terms,
such payment or distribution shall be held in trust for the benefit of and
shall be paid over or delivered to the holders of such Senior Indebtedness or
their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear,
as calculated by the Company, for application to the payment of all Senior
Indebtedness of the Company, as the case may be, remaining unpaid to the
extent necessary to pay such Senior Indebtedness in full in money in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
44
<PAGE> 50
(c) For purposes of this Article XVI, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XVI with respect to the Debentures to the payment of all Senior
Indebtedness of the Company, as the case may be, that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment;
and (ii) the rights of the holders of such Senior Indebtedness are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety,
or substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article XII shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section
16.3 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in
Article XII. Nothing in Section 16.2 or in this Section 16.3 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 9.7.
SECTION 16.4. SUBROGATION.
(a) Subject to the payment in full of all Senior Indebtedness of
the Company, the rights of the holders of the Debentures shall be subrogated
to the rights of the holders of such Senior Indebtedness to receive payments
or distributions of cash, property or securities of the Company, as the case
may be, applicable to such Senior Indebtedness until the principal of and
interest on the Debentures shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the holders of the
Debentures or the Trustee would be entitled except for the provisions of this
Article XVI, and no payment over pursuant to the provisions of this Article
XVI to or for the benefit of the holders of such Senior Indebtedness by
holders of the Debentures or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness of the Company, and the
holders of the Debentures, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article XVI are and are intended solely for the purposes of defining the
relative rights of the holders of the Debentures, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between the
Company, its creditors (other than the holders of Senior Indebtedness of the
Company), and the holders of the Debentures, the obligation of the Company,
which is absolute and unconditional, to pay to the holders of the Debentures
the principal of and interest on the Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Debentures and
creditors of the Company, as the case may be, other than the holders of
Senior Indebtedness of the Company, as the case may be, nor shall anything
herein or therein prevent the Trustee or the holder of any Debenture from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XVI
of the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the exercise of
any such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article XVI, the Trustee, subject to the provisions of
Article IX, and the holders of the Debentures shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such
45
<PAGE> 51
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the holders of the Debentures, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XVI.
SECTION 16.5. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of Debentures by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XVI and appoints the Trustee such holder's
attorney-in-fact for any and all such purposes.
SECTION 16.6. NOTICE BY COMPANY.
(a) The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XVI. Notwithstanding
the provisions of this Article XVI or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by the Trustee
in respect of the Debentures pursuant to the provisions of this Article XVI,
unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefor; and before the receipt of any such
written notice, the Trustee, subject to the provisions of Section 9.1, shall
be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for
in this Section 16.6 at least two Business Days prior to the date upon which
by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of or interest on any
Debenture), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1, shall
be entitled to conclusively rely on the delivery to it of a written notice by
a Person representing himself to be a holder of Senior Indebtedness of the
Company (or a trustee on behalf of such holder) to establish that such notice
has been given by a holder of such Senior Indebtedness or a trustee on behalf
of any such holder or holders. In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of such Senior Indebtedness to participate in any payment
or distribution pursuant to this Article XVI, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
XVI, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
46
<PAGE> 52
SECTION 16.7. RIGHTS OF TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
(a) The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XVI in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. The Trustee's right to
compensation and reimbursement of expenses as set forth in Section 9.7 shall
not be subject to the subordination provisions of this Article XVI.
(b) With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XVI,
and no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
such Senior Indebtedness and, subject to the provisions of Section 9.1, the
Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to holders of Debentures, the Company or any other
Person money or assets to which any holder of such Senior Indebtedness shall
be entitled by virtue of this Article XVI or otherwise.
SECTION 16.8. SUBORDINATION MAY NOT BE IMPAIRED.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
(b) Without in any way limiting the generality of Section
16.8(a), the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
holders of the Debentures, without incurring responsibility to the holders of
the Debentures and without impairing or releasing the subordination provided
in this Article XVI or the obligations hereunder of the holders of the
Debentures to the holders of such Senior Indebtedness, do any one or more of
the following: (i) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, such Senior Indebtedness, or
otherwise amend or supplement in any manner such Senior Indebtedness or any
instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing such Senior
Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
47
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
SIMMONS FIRST NATIONAL CORPORATION
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Attest:
- --------------------------------
Name:
---------------------------
STATE STREET BANK AND TRUST COMPANY,
as trustee
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Attest:
- --------------------------------
Name:
----------------------------
48
<PAGE> 54
STATE OF ARKANSAS )
) ss:
COUNTY OF JEFFERSON )
On this day of , 1997,
------- -------------------------------
before me appeared , to me personally known, who, being by
-------------------
me duly sworn, did say that he is the of SIMMONS
---------------------------
FIRST NATIONAL CORPORATION, and that the seal affixed to said instrument
is the corporate seal of said corporation, and that said instrument was
signed and sealed in behalf of said corporation by authority of its board of
directors and said , acknowledged said instrument to
------------------------
be the free act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed my
official seal at my office in said county and state the day and year last
above written.
-------------------------------------
Notary Public
[seal] My term expires:
---------------------
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
On this day of , 1997,
------- -------------------------------
before me appeared , to me personally known,
------------------------------
who, being by me duly sworn, did say that he is the
of STATE STREET BANK AND TRUST COMPANY,
- ----------------------------
and that the seal affixed to said instrument is the corporate seal of said
corporation, and that said instrument was signed and sealed in behalf of said
corporation by authority of its board of directors and said
, acknowledged said instrument to be the free
- ------------------------------
act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed my
official seal at my office in said county and state the day and year last
above written.
-------------------------------------
Notary Public
[seal] My term expires:
---------------------
49
<PAGE> 55
EXHIBIT A
[FORM OF DEBENTURE]
No. 1 $------------------
CUSIP No. ----------
SIMMONS FIRST NATIONAL CORPORATION
----% SUBORDINATED DEBENTURE
DUE JUNE 30, 2027
Simmons First National Corporation, an Arkansas corporation (the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to State
Street Bank and Trust Company, as Property Trustee, or registered assigns,
the principal sum of ------------------- dollars ($ ) on June 30,
------------
2027 (the "Stated Maturity"), and to pay interest on said principal sum from
, 1997, or from the most recent interest payment date (each such date,
- -------
an "Interest Payment Date") to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in arrears on March
31, June 30, September 30 and December 31 of each year commencing September
30, 1997, at the rate of % per annum until the principal hereof shall have
-----
become due and payable, and on any overdue principal and (without duplication)
on any overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year of twelve 30-day months. The
amount of interest for any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on this Debenture is not a
business day, then payment of interest payable on such date shall be made on
the next succeeding day that is a Business Day (as defined in the Indenture)
(and without any interest or other payment in respect of any such delay) with
the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date shall, as provided in the Indenture, be paid to the person in whose name
this Debenture (or one or more Predecessor Debentures, as defined in the
Indenture) is registered at the close of business on the regular record date
for such interest installment, which shall be the fifteenth day of the last
month of the calendar quarter in which such Interest Payment Date occurs
unless otherwise provided in the Indenture. The principal of and the interest
on this Debenture shall be payable at the office or agency of the Trustee
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at such
address as shall appear in the Debenture Register. Notwithstanding the
foregoing, so long as the holder of this Debenture is the Property Trustee,
the payment of the principal of and interest on this Debenture shall be made
at such place and to such account as may be designated by the Trustee.
The Stated Maturity may be shortened at any time by the Company to
any date not earlier than June 30, 2002, subject to the Company having
received prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve. Such date
may also be
Exhibit A-1
<PAGE> 56
extended at any time at the election of the Company for one or more periods, but
in no event to a date later than June 30, 2036, subject to certain limitations
described in the Indenture.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness. This Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions; (b) authorizes and directs the Trustee on his or her behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided; and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each holder hereof, by
his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated ----------, 1997
SIMMONS FIRST NATIONAL CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Attest:
- -------------------------------------
Name:
---------------------------------
Exhibit A-2
<PAGE> 57
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned
Indenture.
Dated:
STATE STREET BANK AND TRUST COMPANY,
-------------------------------------
as Trustee or Authentication Agent
By By
------------------------------------ -----------------------------------
Authorized Signatory
Exhibit A-3
<PAGE> 58
----% SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the
Company (the "Debentures"), all issued or to be issued under and pursuant to
an Indenture dated as of , 1997 (the "Indenture"), duly executed and
--------
delivered between the Company and State Street Bank and Trust Company, as
Trustee (the "Trustee"), to which Indenture reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders of the
Debentures. The Debentures are limited in aggregate principal amount as
specified in the Indenture.
Company shall have the right, as set forth in the Indenture, to
redeem this Debenture at the option of the Company, without premium or
penalty, in whole or in part at any time on or after June 30, 2002 (an
"Optional Redemption"), or at any time in certain circumstances upon the
occurrence of a Special Event (as defined in the Indenture), at a redemption
price (the "Redemption Price") equal to 100% of the principal amount hereof
plus any accrued but unpaid interest hereon, to the date of such redemption.
Any redemption pursuant to this paragraph shall be made upon not less than 30
days nor more than 60 days notice, at the Redemption Price. The Redemption
Price shall be paid at the time and in the manner provided therefor in the
Indenture. If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption, the Debentures shall be redeemed pro rata
or by lot or by any other method utilized by the Trustee as described in the
Indenture. In the event of an Optional Redemption of this Debenture in part
only, a new Debenture or Debentures for the unredeemed portion hereof shall
be issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default (as defined in the Indenture), shall
have occurred and be continuing, the principal of all of the Debentures may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures at the time Outstanding (as
defined in the Indenture), to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debentures;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of the Debentures except as provided in the Indenture, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, without the consent of the holder of each
Debenture so affected; or (ii) reduce the aforesaid percentage of Debentures,
the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of each Debenture then
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of a majority in aggregate principal amount of the
Debentures at the time outstanding, on behalf of all of the holders of the
Debentures, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or interest on any of the Debentures. Any such consent or
waiver by the registered holder of this Debenture (unless revoked as provided
in the Indenture) shall be conclusive and binding upon such holder and upon
all future holders and owners of this Debenture and of any Debenture issued
in exchange herefor or in place hereof (whether by registration of transfer
or otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
<PAGE> 59
The Company, as further described in the Indenture, shall have the
right at any time during the term of the Debentures and from time to time to
extend the interest payment period of such Debentures for up to 20
consecutive quarters (each, an "Extended Interest Payment Period"), at the
end of which period the Company shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended Interest
Payment Period, the Company may further extend such Extended Interest Payment
Period, provided that such Extended Interest Payment Period together with all
such further extensions thereof shall not exceed 20 consecutive quarters. At
the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture, and subject to certain limitations
therein set forth, this Debenture is transferable by the registered holder
hereof on the Debenture Register (as defined in the Indenture) of the
Company, upon surrender of this Debenture for registration of transfer at the
office or agency of the Trustee accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debentures of authorized
denominations and for the same aggregate principal amount shall be issued to
the designated transferee or transferees. No service charge shall be made
for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Paying Agent (as defined in the
Indenture) and the Debenture Registrar may deem and treat the registered
holder hereof as the absolute owner hereof (whether or not this Debenture
shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Debenture Registrar) for the purpose of
receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any Paying Agent nor any Debentures Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Debentures are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 1
CERTIFICATE OF TRUST
OF
SIMMONS FIRST CAPITAL TRUST
THIS CERTIFICATE OF TRUST OF SIMMONS FIRST CAPITAL TRUST
(the "Trust"), dated -------------, 1997, is being duly executed and filed
by WILMINGTON TRUST COMPANY, a Delaware banking corporation, J. Thomas
May, Barry L. Crow and John L. Rush, each an individual, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801 et seq.).
1. NAME. The name of the business trust formed hereby is SIMMONS FIRST
CAPITAL TRUST.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on
--------------, 1997.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being the sole trustees of
the Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
as trustee
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-------------------------------------------
J. Thomas May
as Trustee
-------------------------------------------
Barry L. Crow
as Trustee
-------------------------------------------
John L. Rush
as Trustee
2
<PAGE> 1
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of May ---, 1997 (this "Trust
Agreement"), among (i) Simmons First National Corporation, an Arkansas
corporation (the "Depositor"), (ii) Wilmington Trust Company, a Delaware
banking corporation, as trustee, and (iii) J. Thomas May, Barry L. Crow and
John L. Rush, each an individual, as trustees (each of such trustees in (ii)
and (iii) a "Trustee" and collectively, the "Trustees"). The Depositor and
the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Simmons First Capital Trust" in which name the Trustees, or the Depositor
to the extent provided herein, may engage in the transactions contemplated
hereby, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over the Trustees the sum of $10.00. The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they
will hold the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a business
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section
3801, et seq. (the "Business Trust Act"), and that this document constitutes
the governing instrument of the Trust. The Trustees are hereby authorized
and directed to execute and file a certificate of trust with the Delaware
Secretary of State in accordance with the provisions of the Business Trust
Act.
3. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act
Registration Statement (as defined below), to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law or as may
be necessary to obtain prior to such execution and delivery of any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case on
behalf of the Trust, (a) the Registration Statement on Form S-3 (the "1933
Act Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, (the "1933 Act")
of the Preferred Securities of the Trust (including any registration
statement for the same offering that is to be effective upon filing pursuant
to Rule 462(b) under the 1933 Act), and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-
effective and post-effective amendments thereto) relating to the registration
of the Preferred Securities of the Trust under the Securities Exchange Act
of 1934, as amended; (ii) to file with The Nasdaq Stock Market's National
Market or a national stock exchange (each, an "Exchange") and execute on
behalf of the Trust one or more listing applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be
listed on any of the Exchanges; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or blue sky laws of such jurisdictions as
the Depositor, on behalf of the Trust, may deem necessary or desirable; and
(iv) to execute on behalf of the Trust that certain Underwriting Agreement
relating to the Preferred Securities, among the Trust, the Depositor and the
several Underwriters named therein, substantially in
<PAGE> 2
the form included as an exhibit to the 1933 Act Registration Statement. In the
event that any filing referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, an Exchange or state
securities or blue sky laws, to be executed on behalf of the Trust by one or
more of the Trustees, each of the Trustees, in its or his capacity as a
Trustee of the Trust, is hereby authorized and, to the extent so required,
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Wilmington Trust Company in
its capacity as a Trustee of the Trust shall not be required to join in any
such filing or execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the Exchange or state
securities or blue sky laws. In connection with the filings referred to
above, the Depositor and J. Thomas May, Barry L. Crow and John L. Rush, each
as Trustees and not in their individual capacities, hereby constitutes and
appoints J. Thomas May, Barry L. Crow and John L. Rush, and each of them, as
its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustees' name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, the Exchange
and administrators of the state securities or blue sky laws, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor or such
Trustee might or could to in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four and
thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Depositor which may
increase or decrease the number of Trustees; provided, however, that to the
extent required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable Delaware
law. Subject to the foregoing, the Depositor is entitled to appoint or
remove without cause any Trustee at any time. The Trustees may resign upon
30 days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to
conflict of laws of principles).
[Signatures On Next Page]
2
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
SIMMONS FIRST NATIONAL CORPORATION
as Depositor
By:
----------------------------------------
J. Thomas May
Chief Executive Officer
WILMINGTON TRUST COMPANY
as Trustee
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-------------------------------------------
J. Thomas May
as Trustee
-------------------------------------------
Barry L. Crow
as Trustee
-------------------------------------------
John L. Rush
as Trustee
3
<PAGE> 1
===============================================================================
SIMMONS FIRST CAPITAL TRUST
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
SIMMONS FIRST NATIONAL CORPORATION, AS DEPOSITOR
STATE STREET BANK AND TRUST COMPANY, AS PROPERTY TRUSTEE
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF --------, 1997
===============================================================================
<TABLE>
TABLE OF CONTENTS
<CAPTION>
PAGE
<S> <C>
ARTICLE I DEFINED TERMS 1
Section 101. Definitions 1
ARTICLE II ESTABLISHMENT OF TRUST 9
Section 201. Name 9
Section 202. Office of Delaware Trustee; Principal Place of Business 9
Section 203. Initial Contribution of Trust Property; Organizational Expenses 9
Section 204. Issuance of Preferred Securities 9
Section 205. Issuance of the Common Securities; Subscription and Purchase of
Debentures 10
Section 206. Declaration of Trust 10
Section 207. Authorization to Enter into Certain Transactions 10
Section 208. Assets of Trust 13
Section 209. Title to Trust Property 13
ARTICLE III PAYMENT ACCOUNT 14
Section 301. Payment Account 14
ARTICLE IV DISTRIBUTIONS; REDEMPTION 14
Section 401. Distributions 14
Section 402. Redemption 15
Section 403. Subordination of Common Securities 16
Section 404. Payment Procedures 17
Section 405. Tax Returns and Reports 17
Section 406. Payment of Taxes, Duties, etc. of Trust 17
Section 407. Payments Under Indenture 18
ARTICLE V TRUST SECURITIES CERTIFICATES 18
Section 501. Initial Ownership 18
Section 502. Trust Securities Certificates 18
Section 503. Execution, Authentication and Delivery of Trust Securities Certificates 18
Section 504. Registration of Transfer and Exchange of Preferred Securities Certificates 19
Section 505. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates 20
Section 506. Persons Deemed Securityholders 20
Section 507. Access to List of Securityholders' Names and Addresses 20
Section 508. Maintenance of Office or Agency 20
Section 509. Appointment of Paying Agent 21
Section 510. Ownership of Common Securities by Depositor 21
Section 511. Preferred Securities Certificates 21
Section 512. [Intentionally Omitted] 22
Section 513. [Intentionally Omitted] 22
Section 514. Rights of Securityholders 22
i
<PAGE> 2
<S> <C>
ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING 22
Section 601. Limitations on Voting Rights 22
Section 602. Notice of Meetings 23
Section 603. Meetings of Preferred Securityholders 24
Section 604. Voting Rights 24
Section 605. Proxies, etc. 24
Section 606. Securityholder Action by Written Consent 24
Section 607. Record Date for Voting and Other Purposes 25
Section 608. Acts of Securityholders 25
Section 609. Inspection of Records 26
ARTICLE VII REPRESENTATIONS AND WARRANTIES 26
Section 701. Representations and Warranties of Bank and Property Trustee 26
Section 702. Representations and Warranties of Delaware Bank and Delaware Trustee 27
Section 703. Representations and Warranties of Depositor 28
ARTICLE VIII TRUSTEES 28
Section 801. Certain Duties and Responsibilities 28
Section 802. Certain Notices 30
Section 803. Certain Rights of Property Trustee 30
Section 804. Not Responsible for Recitals or Issuance of Securities 32
Section 805. May Hold Securities 32
Section 806. Compensation; Indemnity; Fees 32
Section 807. Corporate Property Trustee Required; Eligibility of Trustees 33
Section 808. Conflicting Interests 33
Section 809. Co-Trustees and Separate Trustee 33
Section 810. Resignation and Removal; Appointment of Successor 34
Section 811. Acceptance of Appointment by Successor 36
Section 812. Merger, Conversion, Consolidation or Succession to Business 36
Section 813. Preferential Collection of Claims Against Depositor or Trust 36
Section 814. Reports by Property Trustee 36
Section 815. Reports to Property Trustee 37
Section 816. Evidence of Compliance with Conditions Precedent 37
Section 817. Number of Trustees 37
Section 818. Delegation of Power 37
Section 819. Voting 38
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER 38
Section 901. Termination Upon Expiration Date 38
Section 902. Early Termination 38
Section 903. Termination 38
Section 904. Liquidation 39
Section 905. Mergers, Consolidations, Amalgamations or Replacements of Trust 40
ARTICLE X MISCELLANEOUS PROVISIONS 41
Section 1001. Limitation of Rights of Securityholders 41
Section 1002. Amendment 41
Section 1003. Separability 42
ii
<PAGE> 3
<S> <C>
Section 1004. Governing law 42
Section 1005. Payments Due on Non-Business Day 42
Section 1006. Successors 42
Section 1007. Headings 43
Section 1008. Reports, Notices and Demands 43
Section 1009. Agreement Not to Petition 43
Section 1010. Trust Indenture Act; Conflict with Trust Indenture Act 44
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee and Indenture 45
Exhibit A Certificate of Trust
Exhibit B [Intentionally Omitted]
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
</TABLE>
iii
<PAGE> 4
<TABLE>
CROSS-REFERENCE TABLE
<CAPTION>
Section of Section of
Trust Indenture Act Amended and Restated
of 1939, as amended Trust Agreement
- ------------------- --------------------
<C> <C>
310(a)(1) 807
310(a)(2) 807
310(a)(3) 807
310(a)(4) 207(a)(ii)
310(b) 808
311(a) 813
311(b) 813
312(a) 507
312(b) 507
312(c) 507
313(a) 814(a)
313(a)(4) 814(b)
313(b) 814(b)
313(c) 1008
313(d) 814(c)
314(a) 815
314(b) Not Applicable
314(c)(1) 816
314(c)(2) 816
314(c)(3) Not Applicable
314(d) Not Applicable
314(e) 101,816
315(a) 801(a), 803(a)
315(b) 802, 1008
315(c) 801(a)
315(d) 801, 803
316(a)(2) Not Applicable
316(b) Not Applicable
316(c) 607
317(a)(1) Not Applicable
317(a)(2) Not Applicable
317(b) 509
318(a) 1010
Note: This Cross-Reference Table does not constitute part of this Agreement
and should not affect the interpretation of any of its terms or
provisions.
</TABLE>
iv
<PAGE> 5
AMENDED AND RESTATED TRUST AGREEMENT
AMENDED AND RESTATED TRUST AGREEMENT, dated as of --------,
1997 among (i) SIMMONS FIRST NATIONAL CORPORATION, an Arkansas
corporation (including any successors or assigns, the "Depositor"),
(ii) STATE STREET BANK AND TRUST COMPANY, a trust company duly
organized and existing under the laws of the Commonwealth of Massachusetts,
as property trustee (the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) WILMINGTON TRUST COMPANY, a Delaware banking corporation duly
organized and existing under the laws of the State of Delaware, as Delaware
trustee (the "Delaware Trustee," and, in its separate corporate capacity
and not in its capacity as Delaware Trustee, the "Delaware Bank") (iv) J.
Thomas May, an individual, Barry L. Crow, an individual, and John L. Rush,
an individual, each of whose address is c/o Simmons First National
Corporation, 501 Main Street, Pine Bluff, Arkansas 71601 (each an
"Administrative Trustee" and, collectively, the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
are referred to collectively as the "Trustees"), and (v) the several
Holders (as hereinafter defined).
RECITALS
WHEREAS, the Depositor, the Delaware Trustee, and J. Thomas May,
Barry L. Crow and John L. Rush, each as an Administrative Trustee, have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act (as hereinafter defined) by the entering into of
that certain Trust Agreement, dated as of ---------------, 1997 (the
"Original Trust Agreement"), and by the execution and filing by the
Delaware Trustee, the Depositor and the Administrative Trustees with the
Secretary of State of the State of Delaware of the Certificate of Trust,
filed on -------------, 1997, the form of which is attached as Exhibit A;
and
WHEREAS, the Depositor, the Delaware Trustee, the Property
Trustee and the Administrative Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide
for, among other things, (i) the issuance of the Common Securities (as
defined herein) by the Trust (as defined herein) to the Depositor; (ii) the
issuance and sale of the Preferred Securities (as defined herein) by the
Trust pursuant to the Underwriting Agreement (as defined herein); (iii) the
acquisition by the Trust from the Depositor of all of the right, title and
interest in the Debentures (as defined herein); and (iv) the appointment of
the Trustees.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, each party,
for the benefit of the other parties and for the benefit of the
Securityholders (as defined herein), hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 101. DEFINITIONS.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
<PAGE> 6
(a) the terms defined in this Article I have the meanings
assigned to them in this Article I and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of additional
interest accrued on interest in arrears and paid by the Depositor on a Like
Amount of Debentures for such period.
"Additional Payment" has the meaning specified in Section 1.1
of the Indenture.
"Administrative Trustee" means each of J. Thomas May, Barry L.
Crow and John L. Rush, solely in his capacity as Administrative Trustee of
the Trust formed and continued hereunder and not in his individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person; (c) any Person directly or indirectly controlling, controlled by, or
under common control with the specified Person; (d) a partnership in which
the specified Person is a general partner; (e) any officer or director of
the specified Person; and (f) if the specified Person is an individual, any
entity of which the specified Person is an officer, director or general
partner.
"Authenticating Agent" means an authenticating agent with
respect to the Preferred Securities appointed by the Property Trustee pursuant
to Section 503.
"Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging such Person a bankrupt or insolvent,
or approving as properly filed a petition seeking liquidation or
reorganization of or in respect of such Person under the United States
Bankruptcy Code of 1978, as amended, or any other similar applicable
federal or state law, and the continuance of any such decree or order
unvacated and unstayed for a period of 90 days; or the commencement of an
involuntary case under the United States Bankruptcy Code of 1978, as
amended, in respect of such Person, which shall continue undismissed for a
period of 90 days or entry of an order for relief in such case; or the entry
of a decree
2
<PAGE> 7
or order of a court having jurisdiction in the premises for the
appointment on the ground of insolvency or bankruptcy of a receiver,
custodian, liquidator, trustee or assignee in bankruptcy or insolvency of
such Person or of its property, or for the winding up or liquidation of its
affairs, and such decree or order shall have remained in force unvacated
and unstayed for a period of 90 days; or
(b) the institution by such Person of proceedings to be
adjudicated a voluntary bankrupt, or the consent by such Person to the
filing of a bankruptcy proceeding against it, or the filing by such Person
of a petition or answer or consent seeking liquidation or reorganization
under the United States Bankruptcy Code of 1978, as amended, or other
similar applicable Federal or State law, or the consent by such Person to
the filing of any such petition or to the appointment on the ground of
insolvency or bankruptcy of a receiver or custodian or liquidator or
trustee or assignee in bankruptcy or insolvency of such Person or of its
property, or shall make a general assignment for the benefit of creditors.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the
Board of Directors or officers of the Depositor to which authority to act on
behalf of the Board of Directors has been delegated, and to be in full
force and effect on the date of such certification, and delivered to the
appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a
day on which banking institutions in The City of New York are authorized or
required by law, executive order or regulation to remain closed, or a day
on which the Property Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee is closed for business.
"Certificate of Trust" means the certificate of trust filed with
the Secretary of State of the State of Delaware with respect to the Trust,
as amended or restated from time to time.
"Closing Date" means the date of execution and delivery of this
Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
"Corporate Trust Office" means the office at which, at any
particular time, the corporate trust business of the Property Trustee or
the Debenture Trustee, as the case may be, shall be principally
3
<PAGE> 8
administered, which office at the date hereof, in each such case, is located
at Two International Place, 4th Floor, Boston, Massachusetts 02110,
Attention: Corporate Trust Department.
"Debenture Event of Default" means an "Event of Default" as
defined in Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Debenture Trustee" means State Street Bank and Trust Company, a
banking corporation organized under the laws of the Commonwealth of
Massachusetts and any successor thereto, as trustee under the Indenture.
"Debentures" means the $15,463,925 aggregate principal amount
(or up to $17,783,525 aggregate principal amount if the underwriters exercise
their Option and there is an Option Closing Date, as such terms are defined
in the Underwriting Agreement) of the Depositor's ----% Subordinated
Debentures due 2027, issued pursuant to the Indenture.
"Delaware Bank" has the meaning specified in the Preamble to
this Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Delaware Code Sections 3801 et seq. as it may be amended
from time to time.
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the Preamble to this Trust
Agreement solely in its capacity as Delaware Trustee of the Trust formed
and continued hereunder and not in its individual capacity, or its successor
in interest in such capacity, or any successor trustee appointed as herein
provided.
"Depositor" has the meaning specified in the Preamble to this
Trust Agreement.
"Distribution Date" has the meaning specified in Section 401(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 401.
"Early Termination Event" has the meaning specified in
Section 902.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust or the Property Trustee in the
payment of any Distribution when it becomes due and payable, and continuation
of such default for a period of 30 days; or
4
<PAGE> 9
(c) default by the Trust or the Property Trustee in the
payment of any Redemption Price of any Trust Security when it becomes due and
payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the performance
of which or the breach of which is dealt with in clause (b) or (c), above)
and continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the defaulting
Trustee or Trustees by the Holders of at least 25% in aggregate Liquidation
Amount of the Outstanding Preferred Securities a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
"Extended Interest Payment Period" has the meaning specified in
Section 4.1 of the Indenture.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Guarantee" means the Preferred Securities Guarantee Agreement
executed and delivered by the Depositor and State Street Bank and Trust
Company, as trustee, contemporaneously with the execution and delivery of
this Trust Agreement, for the benefit of the holders of the Preferred
Securities, as amended from time to time.
"Indenture" means the Indenture, dated as of ------------, 1997,
between the Depositor and the Debenture Trustee, as trustee, as amended or
supplemented from time to time pertaining to the Debentures of the
Depositor.
"Investment Company Act," means the Investment Company Act of
1940, as amended, as in effect at the date of execution of this instrument.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture and the proceeds of which shall be used to pay
the Redemption Price of such Trust Securities; and (b) with respect to a
distribution of Debentures to Holders of Trust Securities in connection
with a termination or liquidation of the Trust, Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of
the Holder to whom such Debentures are distributed. Each Debenture
distributed pursuant to clause (b) above shall carry with it
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<PAGE> 10
accumulated interest in an amount equal to the accumulated and unpaid interest
then due on such Debenture.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified in
Section 904(d).
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or the Secretary or
an Assistant Secretary, of the Depositor, and delivered to the appropriate
Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 816 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in
this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be an employee of or counsel for the Trust, the Property
Trustee, the Delaware Trustee or the Depositor, and who shall be reasonably
acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
Recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore executed and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred Securities;
provided that, if such Preferred Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement; and
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(c) Preferred Securities which have been paid or in exchange
for or in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 504, 505 and 511; provided, however, that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities that such
Trustee knows to be so owned shall be so disregarded; and (b) the foregoing
shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or
any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustees the pledgee's right so to
act with respect to such Preferred Securities and that the Pledgee is not
the Depositor or any other Obligor upon the Preferred Securities or a
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Depositor or any Affiliate of the
Depositor.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in
its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Debentures shall be held and from which the
Property Trustee shall make payments to the Securityholders in accordance
with Sections 401 and 402.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate", means a certificate
evidencing ownership of Preferred Securities, substantially in the form
attached as Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee," in the Preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust
heretofore formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated
maturity of the Debentures shall be a Redemption Date for a Like Amount of
Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, paid by the Depositor
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<PAGE> 12
upon the concurrent redemption of a Like Amount of Debentures, allocated on a
pro rata basis (based on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section
810.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Trust" means the Delaware business trust created and continued
hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all exhibits
hereto, including, for all purposes of this Trust Agreement and any such
modification, amendment or supplement, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this Trust
Agreement and any such modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939, as
amended, is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"Trust Property" means (a) the Debentures; (b) the rights of the
Property Trustee under the Guarantee; (c) any cash on deposit in, or owing
to, the Payment Account; and (d) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this
Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated
as of -----------, 1997 among the Trust, the Depositor and the Underwriters
named therein.
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ARTICLE II
ESTABLISHMENT OF TRUST
SECTION 201. NAME.
The Trust created and continued hereby shall be known as
"Simmons First Capital Trust," as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may engage in
the transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
SECTION 202. OFFICE OF DELAWARE TRUSTEE; PRINCIPAL
PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is
c/o Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Securityholders and
the Depositor. The principal executive office of the Trust is c/o Simmons
First National Corporation, 501 Main Street, Pine Bluff, Arkansas 71601.
SECTION 203. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES.
The Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of
any Trustee, promptly reimburse such Trustee for any such expenses paid by
such Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
SECTION 204. ISSUANCE OF PREFERRED SECURITIES.
On , 1997, the Depositor and an Administrative
----------
Trustee, on behalf of the Trust and pursuant to the Original Trust Agreement,
executed and delivered the Underwriting Agreement. Contemporaneously with
the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with
Section 502 and deliver in accordance with the Underwriting Agreement,
Preferred Securities Certificates, registered in the name of the Persons
entitled thereto, in an aggregate amount of 600,000 Preferred Securities
having an aggregate Liquidation Amount of $15,000,000 against receipt of
the aggregate purchase price of such Preferred Securities of $15,000,000,
which amount such Administrative Trustee shall promptly deliver to the
Property Trustee. If the underwriters exercise their Option and there is an
Option Closing Date (as such terms are defined in the Underwriting
Agreement), then an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver in accordance with the
Underwriting Agreement, additional Preferred Securities Certificates,
registered in the name of the Persons entitled thereto, in an aggregate
amount of up to 90,000 Preferred Securities having an aggregate Liquidation
Amount of up to $2,250,000 against receipt of the aggregate purchase price
of such Preferred Securities equal to the product of $25 multiplied by the
number of Preferred Securities purchased pursuant to the Option which amount
such Administrative Trustee shall promptly deliver to the Property Trustee.
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SECTION 205. ISSUANCE OF THE COMMON SECURITIES;
SUBSCRIPTION AND PURCHASE OF DEBENTURES.
(a) Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver to the Depositor, Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of 18,557 Common Securities having an aggregate Liquidation
Amount of $463,925 against payment by the Depositor of such amount.
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Property Trustee on behalf of the Trust and
having an aggregate principal amount equal to $15,463,925, and, in
satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$15,463,925.
(b) If the underwriters exercise the Option and there is an
Option Closing Date, then an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 502 and deliver to the
Depositor, additional Common Securities Certificates, registered in the name
of the Depositor, in an aggregate amount of up to 2,784 Common Securities
having an aggregate Liquidation Amount of up to $69,600 against payment by
the Depositor of an amount equal to the product of $25 multiplied by the
number of additional Common Securities purchased by the Depositor.
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Trust, shall subscribe to and purchase from the Depositor, Debentures,
registered in the name of the Property Trustee on behalf of the Trust and
having an aggregate principal amount of up to $2,319,600, and, in
satisfaction of the purchase price of such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor an amount
equal to the sum of the amounts received from one of the Administrative
Trustees pursuant to the first sentence of this Section 205(b) and the last
sentence of Section 204.
SECTION 206. DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to
acquire the Debentures; and (b) to engage in those activities necessary,
convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein, and the Trustees hereby accept such
appointment. The Property Trustee hereby declares that it shall hold the
Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Securityholders. The Administrative Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust.
The Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities, of
the Property Trustee or the Administrative Trustees set forth herein. The
Delaware Trustee shall be one of the Trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Business Trust Act.
SECTION 207. AUTHORIZATION TO ENTER INTO CERTAIN
TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section 207 and
Article VIII, and in accordance with the following provisions (i) and (ii),
the Administrative Trustees shall have the authority to enter into all
transactions and agreements determined by the Administrative Trustees to be
appropriate in exercising the authority, express or implied, otherwise
granted to the
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Administrative Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee,
acting singly or jointly, shall have the power and authority to act on
behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the Expense Agreement
and such other agreements or documents as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust Agreement
as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon The Nasdaq Stock Market's National Market or such
securities exchange or exchanges as shall be determined by the Depositor
and the registration of the Preferred Securities under the Exchange Act, and
the preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent,
Authenticating Agent and Securities Registrar in accordance with this Trust
Agreement;
(G) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of cancellation with
the Secretary of State of the State of Delaware;
(H) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business trust
under the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of the
Holders of the Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created; and
(I) the taking of any action incidental to the
foregoing as the Administrative Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this Trust Agreement
for the benefit of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
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(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities in accordance with the
terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, the taking of any
action incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms of
this Trust Agreement and protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the effect of any
such action on any particular Securityholder);
(J) registering transfers of the Trust Securities
in accordance with this Trust Agreement; and
(K) except as otherwise provided in this Section
207(a)(ii), the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrative Trustees set
forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transaction except as expressly provided herein
or contemplated hereby. In particular, the Trustees shall not (i) acquire
any investments or engage in any activities not authorized by this Trust
Agreement; (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein;
(iii) take any action that would cause the Trust to fail or cease to
qualify as a "grantor trust" for United States federal income tax purposes;
(iv) incur any indebtedness for borrowed money or issue any other debt; or
(v) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property. The Administrative Trustees shall defend
all claims and demands of all Persons at any time claiming any Lien on any
of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist
the Trust with respect to, or effect on behalf of the Trust, the
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<PAGE> 17
following (and any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred Securities
and the Debentures, including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for execution
and filing any documents to be executed and filed by the Trust or on behalf
of the Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an application to The Nasdaq Stock Market's
National Market or a national stock exchange or other organizations for
listing upon notice of issuance of any Preferred Securities and to file or
cause an Administrative Trustee to file thereafter with such exchange or
organization such notifications and documents as may be necessary from time
to time;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including any
amendments thereto;
(v) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust shall not be deemed
to be an "investment company" required to be registered under the Investment
Company Act, shall be classified as a "grantor trust" and not as an
association taxable as a corporation for United States federal income tax
purposes and so that the Debentures shall be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection,
subject to Section 1002, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law or this
Trust Agreement, that each of the Depositor and the Administrative Trustees
determines in their discretion to be necessary or desirable for such
purposes.
SECTION 208. ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
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SECTION 209. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Securityholders
in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 301. PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits and
withdrawals from the Payment Account in accordance with this Trust
Agreement. All monies and other property deposited or held from time to
time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held
in the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 401. DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative,
and shall accumulate whether or not there are funds of the Trust available
for the payment of Distributions. Distributions shall accumulate from
, 1997, and, except during any Extended Interest Payment Period
- -------------
with respect to the Debentures, shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year, commencing on
September 30, 1997. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the payment of
such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on such date (each
date on which distributions are payable in accordance with this Section
401(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property. The Distributions on the Trust Securities
shall be at a rate of % per annum of the Liquidation Amount of the
------
Trust Securities. The amount of Distributions payable for any full period
shall be computed on the basis of a 360-day year of twelve 30-day months.
The amount of Distributions for any partial period shall be computed on the
basis of the number of days elapsed in a 360-day year of twelve 30 day
months. During any Extended Interest Payment Period with respect to the
Debentures, Distributions on the
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<PAGE> 19
Preferred Securities shall be deferred for a period equal to the Extended
Interest Payment Period. The amount of Distributions payable for any period
shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee solely from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then on
hand and immediately available by 12:30 p.m. on each Distribution Date in
the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record
date, which shall be the 15th day of the month in which the Distribution is
payable.
SECTION 402. REDEMPTION.
(a) On each Debenture Redemption Date and on the stated
maturity of the Debentures, the Trust shall be required to redeem a Like
Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Securities Register.
The Property Trustee shall have no responsibility for the accuracy of any
CUSIP number contained in such notice. All notices of redemption shall
state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the aggregate Liquidation Amount of
the particular Trust Securities to be redeemed; and
(v) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon shall cease to accumulate on and after said
date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has immediately available
funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 402(c), the Property
Trustee shall deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and shall give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders
thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the
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foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required,
then upon the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption shall cease, except the right of such
Securityholders to receive the Redemption Price and any Distribution payable on
or prior to the Redemption Date, but without interest, and such Trust Securities
shall cease to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) with the same force and effect as if made on such date. In the
event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not
paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities shall continue to accumulate, at the
then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities to the date such Redemption Price is
actually paid, in which case the actual payment date shall be the date
fixed for redemption for purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date,
which shall be the date 15 days prior to the relevant Redemption Date.
(f) Subject to Section 403(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the
Common Securities and the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to $25 or an integral multiple of $25 in excess thereof) of
the Liquidation Amount of Preferred Securities of a denomination larger
than $25. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption
and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Preferred Securities shall
relate, in the case of any Preferred Securities redeemed or to be redeemed
only in part, to the portion of the Liquidation Amount of Preferred
Securities which has been or is to be redeemed.
SECTION 403. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 402(f), pro rata among the
Common Securities and the Preferred Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment
of any Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities,
shall be made unless payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for
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all Distribution periods terminating on or prior thereto, or in the case of
payment of the Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of Common
Securities shall be deemed to have waived any right to act with respect to
any such Event of Default under this Trust Agreement until the effect of all
such Events of Default with respect to the Preferred Securities shall have
been cured, waived or otherwise eliminated. Until any such Event of Default
under this Trust Agreement with respect to the Preferred Securities shall
have been so cured, waived or otherwise eliminated, the Property Trustee
shall act solely on behalf of the Holders of the Preferred Securities and
not the Holder of the Common Securities, and only the Holders of the
Preferred Securities shall have the right to direct the Property Trustee to
act on their behalf.
SECTION 404. PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Securities Register. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between
the Property Trustee and the Common Securityholder.
SECTION 405. TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United States federal,
state and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Administrative
Trustees shall (a) prepare and file (or cause to be prepared and filed) the
appropriate Internal Revenue Service form required to be filed in respect
of the Trust in each taxable year of the Trust; and (b) prepare and furnish
(or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be furnished to such
Securityholder or the information required to be provided on such form. The
Administrative Trustees shall provide the Depositor with a copy of all such
returns and reports promptly after such filing or furnishing. The Property
Trustee shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to
any payments to Securityholders under the Trust Securities.
SECTION 406. PAYMENT OF TAXES, DUTIES, ETC. OF TRUST.
Upon receipt under the Debentures of Additional Payment, the
Property Trustee, at the direction of an Administrative Trustee or the
Depositor, shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
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SECTION 407. PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred
Securities shall be reduced by the amount of any corresponding payment such
Holder has directly received under the Indenture pursuant to Section 514(b)
or (c) hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 501. INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the
Depositor pursuant to Section 203 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
SECTION 502. TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $25 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of at least one Administrative Trustee.
Trust Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior
to the delivery of such Trust Securities Certificates or did not hold such
offices at the date of delivery of such Trust Securities Certificates. A
transferee of a Trust Securities Certificate shall become a Securityholder,
and shall be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Sections 504 and 511.
SECTION 503. EXECUTION, AUTHENTICATION AND DELIVERY OF
TRUST SECURITIES CERTIFICATES.
(a) On the Closing Date and on the date on which the
Underwriter exercises the Option, as applicable (the "Option Closing
Date"), the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 204
and 205, to be executed on behalf of the Trust by at least one of the
Administrative Trustees and delivered to or upon the written order of the
Depositor, signed by its Chief Executive Officer, President, any Vice
President, the Treasurer or any Assistant Treasurer without further
corporate action by the Depositor, in authorized denominations.
(b) A Preferred Securities Certificate shall not be valid
until authenticated by the manual signature of an authorized signatory of the
Property Trustee. The signature shall be conclusive evidence that the
Preferred Securities Certificate has been authenticated under this Trust
Agreement. Each Preferred Security Certificate shall be dated the date of
its authentication.
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(c) Upon the written order of the Trust signed by the
Administrative Trustee, the Property Trustee shall authenticate and make
available for delivery the Preferred Securities Certificates.
(d) The Property Trustee may appoint an Authenticating Agent
acceptable to the Trust to authenticate the Preferred Securities. An
Authenticating Agent may authenticate the Preferred Securities whenever the
Property Trustee may do so. Each reference in this Trust Agreement to
authentication by the Property Trustee includes authentication by such
agent. An Authenticating Agent has the same rights as the Property Trustee
to deal with the Depositor or the Trust.
SECTION 504. REGISTRATION OF TRANSFER AND EXCHANGE OF
PREFERRED SECURITIES CERTIFICATES.
(a) The Depositor shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 508, a register or registers for
the purpose of registering Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates (herein referred to as the
"Securities Register") in which the registrar designated by the Depositor
(the "Securities Registrar"), subject to such reasonable regulations as it
may prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 510 in
the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
(b) Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency maintained pursuant to
Section 508, the Administrative Trustees or any one of them shall execute
and deliver, in the name of the designated transferee or transferees, one or
more new Preferred Securities Certificates in authorized denominations of a
like aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. The Securities Registrar shall not be
required to register the transfer of any Preferred Securities that have
been called for redemption. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred Securities
Certificates in authorized denominations of the same class and of a like
aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 508.
(c) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the Property
Trustee and the Securities Registrar duly executed by the Holder or his
attorney duly authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Property Trustee in accordance with its
customary practice. The Trust shall not be required to (i) issue, register
the transfer of, or exchange any Preferred Securities during a period
beginning at the opening of business 15 calendar days before the date of
mailing of a notice of redemption of any Preferred Securities called for
redemption and ending at the close of business on the day of such mailing;
or (ii) register the transfer of or exchange any Preferred Securities so
selected for redemption, in whole or in part, except the unredeemed portion
of any such Preferred Securities being redeemed in part.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the
Securities Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
transfer or exchange of Preferred Securities Certificates.
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SECTION 505. MUTILATED, DESTROYED, LOST OR STOLEN
TRUST SECURITIES CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar
shall receive evidence to its satisfaction of the destruction, loss or theft
of any Trust Securities Certificate; and (b) there shall be delivered to
the Securities Registrar, the Property Trustee and the Administrative
Trustees such security or indemnity as may be required by them to save each
of them harmless, then in the absence of notice that such Trust Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under
this Section 505, the Administrative Trustees or the Securities Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Trust Securities Certificate issued pursuant to this Section 505
shall constitute conclusive evidence of an undivided beneficial interest in
the assets of the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Trust Securities Certificate shall be found at any time.
SECTION 506. PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent and the Securities Registrar
shall treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for all other
purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
SECTION 507. ACCESS TO LIST OF SECURITYHOLDERS' NAMES
AND ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall
furnish or cause to be furnished to the Property Trustee (a) semi-annually
on or before January 15 and July 15 in each year, a list, in such form as
the Property Trustee may reasonably require, of the names and addresses of
the Securityholders as of the most recent record date; and (b) promptly
after receipt by any Administrative Trustee or the Depositor of a request
therefor from the Property Trustee in order to enable the Property Trustee
to discharge its obligations under this Trust Agreement, in each case to
the extent such information is in the possession or control of the
Administrative Trustees or the Depositor and is not identical to a
previously supplied list or has not otherwise been received by the Property
Trustee in its capacity as Securities Registrar. The rights of
Securityholders to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities, and
the corresponding rights of the Trustee shall be as provided in the Trust
Indenture Act. Each Holder, by receiving and holding a Trust Securities
Certificate, and each owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Administrative Trustees accountable
by reason of the disclosure of its name and address, regardless of the
source from which such information was derived.
SECTION 508. MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain in a location or
locations designated by the Administrative Trustees, an office or offices
or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities
Certificates may be served. The Administrative Trustees
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initially designate the Corporate Trust Office of the Property Trustee,
Two International Place, 4th Floor, Boston, Massachusetts 02110, as the
principal corporate trust office for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or
any such office or agency.
SECTION 509. APPOINTMENT OF PAYING AGENT.
The Paying Agent shall initially be the Property Trustee, and
any co-paying agent chosen by the Property Trustee, and acceptable to the
Administrative Trustees and the Depositor. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power
to withdraw funds from the Payment Account for the purpose of making the
Distributions referred to above. The Administrative Trustees may revoke
such power and remove the Paying Agent if such Trustees determine in their
sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees, the Property
Trustee and the Depositor. In the event that the Property Trustee shall no
longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to
act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute
and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent shall
hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto until such
sums shall be paid to such Securityholders. The Paying Agent shall return
all unclaimed funds to the Property Trustee and, upon removal of a Paying
Agent, such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 801, 803 and 806 shall
apply to the Property Trustee also in its role as Paying Agent, for so long
as the Property Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in
this Trust Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
SECTION 510. OWNERSHIP OF COMMON SECURITIES BY
DEPOSITOR.
On the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest
extent permitted by law, any attempted transfer of the Common Securities
(other than a transfer in connection with a merger or consolidation of the
Depositor into another corporation pursuant to Section 12.1 of the
Indenture) shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 511. PREFERRED SECURITIES CERTIFICATES.
(a) Each owner shall receive a Preferred Securities
Certificate representing such owner's interest in such Preferred
Securities. Upon the issuance of Preferred Securities Certificates, the
Trustees shall recognize the record holders of the Preferred Securities
Certificates as Securityholders. The Preferred Securities Certificates shall
be printed, lithographed or engraved or may be produced in any
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other manner as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative Trustees or any one of
them.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
SECTION 512. [INTENTIONALLY OMITTED].
SECTION 513. [INTENTIONALLY OMITTED].
SECTION 514. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in accordance
with Section 209, and the Securityholders shall not have any right or title
therein other than the undivided beneficial interest in the assets of the
Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the
Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Trust Agreement. The Trust Securities shall have no preemptive or similar
rights. When issued and delivered to Holders of the Preferred Securities
against payment of the purchase price therefor, the Preferred Securities
shall be fully paid and nonassessable interests in the Trust. The Holders
of the Preferred Securities, in their capacities as such, shall be entitled
to the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 25% in Liquidation
Amount of the Preferred Securities then Outstanding shall have such right
by a notice in writing to the Depositor and the Debenture Trustee; and upon
any such declaration such principal amount of and the accrued interest on
all of the Debentures shall become immediately due and payable, provided
that the payment of principal and interest on such Debentures shall remain
subordinated to the extent provided in the Indenture.
(c) For so long as any Preferred Securities remain
outstanding, if, upon a Debenture Event of Default arising from the failure to
pay interest or principal on the Debentures, the Holders of any Preferred
Securities then Outstanding shall, to the fullest extent permitted by law,
have the right to directly institute proceedings for enforcement of payment
to such Holders of principal of or interest on the Debentures having a
principal amount equal to the Liquidation Amount of the Preferred Securities
of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 601. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 601, in Sections 514,
810 and 1002 and in the Indenture and as otherwise required by law, no
Holder of Preferred Securities shall have any right to vote
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or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from time to
time as partners or members of an association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect
to such Debentures; (ii) waive any past default which is waivable under
Article VII of the Indenture; (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be due and
payable; or (iv) consent to any amendment, modification or termination of
the Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at
least a majority in Liquidation Amount of all Outstanding Preferred
Securities; provided, however, that where a consent under the Indenture
would require the consent of each Holder of outstanding Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of
the Holders of the Outstanding Preferred Securities, except by a subsequent
vote of the Holders of the Outstanding Preferred Securities. The Property
Trustee shall notify each Holder of the Outstanding Preferred Securities of
any notice of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that the Trust
shall continue to be classified as a grantor trust and not as an association
taxable as a corporation for United States federal income tax purposes on
account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise; or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust Agreement,
then the Holders of Outstanding Preferred Securities as a class shall be
entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of
at least a majority in Liquidation Amount of the Outstanding Preferred
Securities. No amendment to this Trust Agreement may be made if, as a
result of such amendment, the Trust would cease to be classified as a
grantor trust or would be classified as an association taxable as a
corporation for United States federal income tax purposes.
SECTION 602. NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 1008 to each Preferred Securityholder of
record, at his registered address, at least 15 days and not more than
90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice
of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
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SECTION 603. MEETINGS OF PREFERRED SECURITYHOLDERS.
(a) No annual meeting of Securityholders is required to be
held. The Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter in respect of which Preferred
Securityholders are entitled to vote upon the written request of the
Preferred Securityholders of 25% of the Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) and the Administrative
Trustees or the Property Trustee may, at any time in their discretion, call
a meeting of Preferred Securityholders to vote on any matters as to which
the Preferred Securityholders are entitled to vote.
(b) Preferred Securityholders of record of 50% of the
Outstanding Preferred Securities (based upon their aggregate Liquidation
Amount), present in person or by proxy, shall constitute a quorum at any
meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon their
aggregate Liquidation Amount) held by the Preferred Securityholders of
record present, either in person or by proxy, at such meeting shall
constitute the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
SECTION 604. VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
SECTION 605. PROXIES, ETC.
At any meeting of Securityholders, any Securityholder entitled
to vote thereat may vote by proxy, provided that no proxy shall be voted at
any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as
the Administrative Trustees may direct, for verification prior to the time
at which such vote shall be taken. When Trust Securities are held jointly
by several persons, any one of them may vote at any meeting in person or by
proxy in respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such
vote shall not be received in respect of such Trust Securities. A proxy
purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden
of proving invalidity shall rest on the challenger. No proxy shall be valid
more than three years after its date of execution.
SECTION 606. SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a meeting
may be taken without a meeting if Securityholders holding more than a majority
of all Outstanding Trust Securities (based upon their aggregate Liquidation
Amount) entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any express provision of this
Trust Agreement) shall consent to the action in writing (based upon their
aggregate Liquidation Amount).
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SECTION 607. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent, or
to participate in any Distribution on the Trust Securities in respect of
which a record date is not otherwise provided for in this Trust Agreement,
or for the purpose of any other action, the Administrative Trustees may
from time to time fix a date, not more than 90 days prior to the date of
any meeting of Securityholders or the payment of Distribution or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
SECTION 608. ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by such Securityholders in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to
an Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Securityholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Trust Agreement and
(subject to Section 801) conclusive in favor of the Trustees, if made in
the manner provided in this Section 608.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which any
Trustee receiving the same deems sufficient.
(c) The ownership of Preferred Securities shall be proved by
the Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security
shall bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustees or the Trust
in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount
of such Trust Security or by one or more duly appointed agents each of which
may do so pursuant to such appointment with regard to all or any part of
such Liquidation Amount.
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(f) A Securityholder may institute a legal proceeding directly
against the Depositor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee), the Trust or any Person.
SECTION 609. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection and
copying by Securityholders and their authorized representatives during
normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 701. REPRESENTATIONS AND WARRANTIES OF BANK
AND PROPERTY TRUSTEE.
The Bank and the Property Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each successor Property
Trustee at the time of the successor Property Trustee's acceptance of its
appointment as Property Trustee hereunder (the term "Bank" being used to
refer to such successor Property Trustee in its separate corporate
capacity) hereby represents and warrants (as applicable) for the benefit of
the Depositor and the Securityholders that:
(a) the Bank is a trust company duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts;
(b) the Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors, rights and to general
equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and does not
require any approval of stockholders of the Bank and such execution,
delivery and performance shall not (i) violate the Bank's charter or
by-laws; (ii) violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property Trustee or the
Bank is a party or by which it is bound; or (iii) violate any law, governmental
rule or regulation of the United States or the Commonwealth of Massachusetts,
as the case may be, governing the banking or trust powers of the Bank or the
Property Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Bank;
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(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein or therein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law governing
the banking or trust powers of the Bank or the Property Trustee, as the case
may be, under the laws of the United States or the Commonwealth of
Massachusetts; and
(f) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting the Bank or
the Property Trustee in any court or before any governmental authority,
agency or arbitration board or tribunal which, individually or in the
aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Property Trustee to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement.
SECTION 702. REPRESENTATIONS AND WARRANTIES OF
DELAWARE BANK AND DELAWARE TRUSTEE.
The Delaware Bank and the Delaware Trustee, each severally on
behalf of and as to itself, as of the date hereof, and each successor
Delaware Trustee at the time of the successor Delaware Trustee's acceptance
of appointment as Delaware Trustee hereunder (the term "Delaware Bank" being
used to refer to such successor Delaware Trustee in its separate corporate
capacity), hereby represents and warrants (as applicable) for the benefit
of the Depositor and the Securityholders that:
(a) the Delaware Bank is a Delaware banking corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware;
(b) the Delaware Bank has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors, rights and to general
equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Delaware Trustee and does not
require any approval of stockholders of the Delaware Bank and such
execution, delivery and performance shall not (i) violate the Delaware
Bank's charter or by-laws; (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of, any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Delaware
Bank or the Delaware Trustee is a party or by which it is bound; or
(iii) violate any law, governmental rule or regulation of the United States
or the State of Delaware, as the case may be, governing the banking or
trust powers of the Delaware Bank or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Delaware Bank or
the Delaware Trustee;
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein
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or therein requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law governing
the banking or trust powers of the Delaware Bank or the Delaware Trustee, as
the case may be, under the laws of the United States or the State of
Delaware; and
(f) there are no proceedings pending or, to the best of the
Delaware Trustee's knowledge, threatened against or affecting the Delaware
Bank or the Delaware Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal which, individually or in
the aggregate, would materially and adversely affect the Trust or would
question the right, power and authority of the Delaware Trustee to enter
into or perform its obligations as one of the Trustees under this Trust
Agreement.
SECTION 703. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of
the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date or the Option Closing Date, if applicable, on behalf of the Trust have
been duly authorized and shall be, as of such date or dates, if applicable,
duly and validly executed, issued and delivered by the Administrative
Trustees pursuant to the terms and provisions of, and in accordance with
the requirements of, this Trust Agreement and the Securityholders shall be,
as of such date or dates, if applicable, entitled to the benefits of this
Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the Bank, the
Property Trustee or the Delaware Trustee, as the case may be, of this Trust
Agreement.
ARTICLE VIII
TRUSTEES
SECTION 801. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee,
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of
this Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any
of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. No Administrative Trustee nor the Delaware
Trustee shall be liable for its act or omissions hereunder except as a
result of its own gross negligence or willful misconduct. The Property
Trustee's liability shall be determined under the Trust Indenture Act.
Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this
Section 801. To the extent that, at law or in equity, the Delaware Trustee
or an Administrative Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, the
Delaware Trustee or such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good
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faith reliance on the provisions of this Trust Agreement. The provisions of
this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Delaware Trustee or the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the Delaware
Trustee and the Administrative Trustees, as the case may be.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue
and proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the
terms hereof. With respect to the relationship of each Securityholder and
the Trustee, each Securityholder, by its acceptance of a Trust Security,
agrees that it shall look solely to the revenue and proceeds from the Trust
Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 801(b) does not
limit the liability of the Trustees expressly set forth elsewhere in this
Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except
that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a majority in
Liquidation Amount of the Trust Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree with
the Depositor and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 301 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Depositor
with their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the negligence, default or misconduct of the
Administrative Trustees or the Depositor.
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SECTION 802. CERTAIN NOTICES.
(a) Within 5 Business Days after the occurrence of any Event
of Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 1008, notice
of such Event of Default to the Securityholders, the Administrative Trustees
and the Depositor, unless such Event of Default shall have been cured or
waived. For purposes of this Section 802 the term "Event of Default" means
any event that is, or after notice or lapse of time or both would become,
an Event of Default.
(b) The Administrative Trustees shall transmit to the
Securityholders, in the manner and to the extent provided in Section 1008,
notice of the Depositor's election to begin or further extend an Extended
Interest Payment Period on the Debentures (unless such election shall have
been revoked) within the time specified for transmitting such notice to the
holders of the Debentures pursuant to the Indenture as originally executed.
SECTION 803. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses of
action; or (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with other
provisions contained herein; or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to
any matter as to which the Preferred Securityholders are entitled to vote
under the terms of this Trust Agreement, the Property Trustee shall deliver
a notice to the Depositor requesting written instructions of the Depositor
as to the course of action to be taken and the Property Trustee shall take
such action, or refrain from taking such action, as the Property Trustee
shall be instructed in writing to take, or to refrain from taking, by the
Depositor; provided, however, that if the Property Trustee does not receive
such instructions of the Depositor within 10 Business Days after it has
delivered such notice, or such reasonably shorter period of time set forth
in such notice (which to the extent practicable shall not be less than 2
Business Days), it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement as it shall
deem advisable and in the best interests of the Securityholders, in which
event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad
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faith on its part, request and conclusively rely upon an Officer's Certificate
which, upon receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement, any filing under tax or securities laws
or any filing under tax or securities laws) or any rerecording, refiling or
reregistration thereof;
(f) the Property Trustee may consult with counsel of its
choice (which counsel may be counsel to the Depositor or any of its Affiliates)
and the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and, in accordance with
such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property Trustee shall
have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement
at the request or direction of any of the Securityholders pursuant to this
Trust Agreement, unless such Securityholders shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Securityholders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee shall
be responsible for its own negligence or recklessness with respect to
selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the Holders
of the Trust Securities which instructions may only be given by the Holders
of the same proportion in Liquidation Amount of the Trust Securities as
would be entitled to direct the Property Trustee under the terms of the
Trust Securities in respect of such remedy, right or action; (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received; and (iii) shall be protected in acting
in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this Trust
Agreement. No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to
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exercise any such right, power, duty or obligation. No permissive power or
authority available to the Property Trustee shall be construed to be a duty.
SECTION 804. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES.
The Recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Debentures.
SECTION 805. MAY HOLD SECURITIES.
Any Trustee or any other agent of any Trustee or the Trust, in
its individual or any other capacity, may become the owner or pledgee of
Trust Securities and, subject to Sections 808 and 813 and except as
provided in the definition of the term "Outstanding" in Article I, may
otherwise deal with the Trust with the same rights it would have if it were
not a Trustee or such other agent.
SECTION 806. COMPENSATION; INDEMNITY; FEES.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to such Trustee's
negligence, bad faith or willful misconduct (or, in the case of the
Administrative Trustees or the Delaware Trustee, any such expense,
disbursement or advance as may be attributable to its, his or her gross
negligence, bad faith or willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor
Trustee for, and to hold the Trustees harmless against, any loss, damage,
claims, liability, penalty or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except any
such expense, disbursement or advance as may be attributable to such
Trustee's negligence, bad faith or willful misconduct (or, in the case of
the Administrative Trustees or the Delaware Trustee, any such expense,
disbursement or advance as may be attributable to its, his or her gross
negligence, bad faith or willful misconduct).
No Trustee may claim any Lien or charge on Trust Property as a
result of any amount due pursuant to this Section 806.
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SECTION 807. CORPORATE PROPERTY TRUSTEE REQUIRED;
ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If any such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section 807, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section 807, it shall
resign immediately in the manner and with the effect hereinafter specified
in this Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more persons
authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State
of Delaware; or (ii) a legal entity with its principal place of business in
the State of Delaware and that otherwise meets the requirements of
applicable Delaware law that shall act through one or more persons
authorized to bind such entity.
SECTION 808. CONFLICTING INTERESTS.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Trust Agreement.
SECTION 809. CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust Property may at the time be located, the Depositor shall
have power to appoint, and upon the written request of the Property
Trustee, the Depositor shall for such purpose join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either
case with such powers as may be provided in the instrument of appointment,
and to vest in such Person or Persons in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section 809. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so
to do, or in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section 809 shall either be (i) a natural person who is at least 21 years of
age and a resident of the United States; or (ii) a legal entity with its
principal place of business in the United States that shall act through one
or more persons authorized to bind such entity.
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(b) Should any written instrument from the Depositor be
required by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall, on request, be
executed, acknowledged, and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified hereunder,
shall be exercised, solely by such Trustees and not by such co-trustee or
separate trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee or by the Property Trustee
and such co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any particular
act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties
and obligations shall be exercised and performed by such co-trustee or
separate trustee.
(iii) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section 809, and, in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee shall have the power
to accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written request
of the Property Trustee, the Depositor shall join with the Property Trustee
in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigned or removed may
be appointed in the manner provided in this Section 809.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee
or any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 810. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this
Article VIII shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of
Section 811.
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(b) Subject to the immediately preceding paragraph, the
Relevant Trustee may resign at any time with respect to the Trust Securities by
giving written notice thereof to the Securityholders. If the instrument of
acceptance by the successor Trustee required by Section 811 shall not have
been delivered to the Relevant Trustee within 30 days after the giving of
such notice of resignation, the Relevant Trustee may petition, at the
expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
(c) Unless a Debenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them,
may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Common Securityholder at any
time.
(d) If any Trustee shall resign, be removed or become incapable
of acting as Trustee, or if a vacancy shall occur in the office of any
Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to the retiring Trustee, shall promptly
appoint a successor Trustee or Trustees with respect to the Trust
Securities and the Trust, and the successor Trustee shall comply with the
applicable requirements of Section 811. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing
to act as the Property Trustee or the Delaware Trustee, as the case may be,
at a time when a Debenture Event of Default shall have occurred and is
continuing, the Preferred Securityholders, by Act of the Securityholders of
a majority in Liquidation Amount of the Preferred Securities then
Outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees with respect to the Trust
Securities and the Trust, and such successor Trustee shall comply with the
applicable requirements of Section 811. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee,
at a time when a Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to an Administrative Trustee, shall promptly appoint a successor
Administrative Trustee or Administrative Trustees with respect to the Trust
Securities and the Trust, and such successor Administrative Trustee or
Administrative Trustees shall comply with the applicable requirements of
Section 811. If no successor Relevant Trustee with respect to the Trust
Securities shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner required
by Section 811, any Securityholder who has been a Securityholder of Trust
Securities on behalf of himself and all others similarly situated may
petition a court of competent jurisdiction for the appointment of a
successor Relevant Trustee with respect to the Trust Securities.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor Trustee
to all Securityholders in the manner provided in Section 1008 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
(f) Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of the
Depositor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of
remaining Administrative Trustees if there are at least two of them; or
(b) otherwise by the Depositor (with the successor in each case being a
Person who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 807).
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SECTION 811. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Relevant Trustee with respect to the Trust Securities and the Trust, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an instrument hereto wherein each
successor Relevant Trustee shall accept such appointment and which shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to
the Trust Securities and the Trust and upon the execution and delivery of
such instrument the resignation or removal of the retiring Relevant Trustee
shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the
Trust; but, on request of the Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
(b) Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the immediately preceding
paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall
be qualified and eligible under this Article VIII.
SECTION 812. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any Person into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article VIII, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
SECTION 813. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall
be or become a creditor of the Depositor or the Trust (or any other obligor
upon the Debentures or the Trust Securities), the Property Trustee or the
Delaware Trustee, as the case may be, shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust
Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor).
SECTION 814. REPORTS BY PROPERTY TRUSTEE.
(a) The Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee, its actions under this Trust
Agreement and the property and funds in its possession as
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<PAGE> 41
Property Trustee as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with The Nasdaq
Stock Market's National Market, and each national securities exchange or
other organization upon which the Trust Securities are listed, and also with
the Commission and the Depositor.
SECTION 815. REPORTS TO PROPERTY TRUSTEE.
The Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314(a) of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 816. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.
Each of the Depositor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Trust Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of the
Trust Indenture Act shall be given in the form of an Officers' Certificate.
SECTION 817. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be five, provided that the
Holder of all of the Common Securities by written instrument may increase
or decrease the number of Administrative Trustees. The Property Trustee
and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to
Section 817(a), or if the number of Trustees is increased pursuant to
Section 817(a), a vacancy shall occur. The vacancy shall be filled with a
Trustee appointed in accordance with Section 810.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 810,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 818. DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 207(a); and
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(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of the
Trust, as set forth herein.
SECTION 819. VOTING.
Except as otherwise provided in this Trust Agreement, the
consent or approval of the Administrative Trustees shall require consent or
approval by not less than a majority of the Administrative Trustees, unless
there are only two, in which case both must consent.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 901. TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve
on March 31, 2052 (the "Expiration Date") subject to distribution of the
Trust Property in accordance with Section 904.
SECTION 902. EARLY TERMINATION.
The first to occur of any of the following events is an "Early
Termination Event:"
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) delivery of written direction to the Property Trustee by
the Depositor at any time (which direction is wholly optional and within
the discretion of the Depositor) to dissolve the Trust and distribute the
Debentures to Securityholders in exchange for the Preferred Securities in
accordance with Section 904;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Debentures; and
(d) the entrance of an order for dissolution of the Trust by a
court of competent jurisdiction.
SECTION 903. TERMINATION.
The respective obligations and responsibilities of the Trustees
and the Trust created and continued hereby shall terminate upon the latest
to occur of the following: (a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 904,
or upon the redemption of all of the Trust Securities pursuant to
Section 402, of all amounts required to be distributed hereunder upon the
final payment of the Trust Securities; (b) the payment of any expenses owed
by the Trust; (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders; and (d) the
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<PAGE> 43
filing of a Certificate of Cancellation by the Administrative Trustee under
the Delaware Business Trust Act.
SECTION 904. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a),
(b), or (d) of Section 902 occurs or upon the Expiration Date, the Trust shall
be liquidated by the Trustees as expeditiously as the Trustees determine to
be possible by distributing, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, to each Securityholder a Like
Amount of Debentures, subject to Section 904(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Securities Register. All notices of liquidation
shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities shall no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange shall be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 904(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be deemed to be
outstanding; (ii) certificates representing a Like Amount of Debentures
shall be issued to holders of Trust Securities Certificates upon surrender
of such certificates to the Administrative Trustees or their agent for
exchange; (iii) the Depositor shall use its reasonable efforts to have the
Debentures listed on The Nasdaq Stock Market's National Market or on such
other securities exchange or other organization as the Preferred Securities
are then listed or traded; (iv) any Trust Securities Certificates not so
surrendered for exchange shall be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures
from the last Distribution Date on which a Distribution was made on such
Trust Securities Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
principal shall be made to holders of Trust Securities Certificates with
respect to such Debentures); and (v) all rights of Securityholders holding
Trust Securities shall cease, except the right of such Securityholders to
receive Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 904, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be
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practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders shall be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding-up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be
paid on a pro rata basis (based upon Liquidation Amounts). The holder of
the Common Securities shall be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Preferred Securities, except
that, if a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common Securities.
SECTION 905. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF TRUST.
The Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except
pursuant to this Section 905. At the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the
holders of the Preferred Securities, the Property Trustee or the Delaware
Trustee, the Trust may merge with or into, consolidate, amalgamate, be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of
any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Preferred
Securities; or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities
(the "Successor Securities") so long as the Successor Securities rank the
same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise;
(ii) the Depositor expressly appoints a trustee of such successor entity
possessing substantially the same powers and duties as the Property Trustee
as the holder of the Debentures; (iii) the Successor Securities are listed
or traded, or any Successor Securities shall be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any;
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect; (v) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Depositor has received an Opinion of Counsel to the effect that
(a) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect; and (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor such successor entity shall be required to
register as an "investment company" under the Investment Company Act; and
(vi) the Depositor owns all of the Common Securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent
of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to
any other Person or permit any other Person to consolidate, amalgamate,
merge with or into, or replace it
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if such consolidation, amalgamation, merger or replacement would cause the Trust
or the successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 1001. LIMITATION OF RIGHTS OF SECURITYHOLDERS.
The death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or heirs of
such Person or any Securityholder for such Person to claim an accounting,
take any action or bring any proceeding in any court for a partition or
winding-up of the arrangements contemplated hereby, nor otherwise affect
the rights, obligations and liabilities of the parties hereto or any of
them.
SECTION 1002. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by
the Trustees and the Depositor, without the consent of any Securityholders,
(i) as provided in Section 811 with respect to acceptance of appointment by
a successor Trustee; (ii) to cure any ambiguity, correct or supplement any
provision herein or therein which may be inconsistent with any other
provision herein or therein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, that shall not
be inconsistent with the other provisions of this Trust Agreement; or
(iii) to modify, eliminate or add to any provisions of this Trust Agreement
to such extent as shall be necessary to ensure that the Trust shall be
classified for United States federal income tax purposes as a grantor trust
at all times that any Trust Securities are outstanding or to ensure that
the Trust shall not be required to register as an "investment company"
under the Investment Company Act; provided, however, that in the case of
clause (ii), such action shall not adversely affect in any material respect
the interests of any Securityholder, and any amendments of this Trust
Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 601(c) or Section 1002(c)
hereof, any provision of this Trust Agreement may be amended by the
Trustees and the Depositor (i) with the consent of Trust Securityholders
representing not less than a majority (based upon Liquidation Amounts) of
the Trust Securities then Outstanding; and (ii) upon receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such
amendment shall not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from status of
an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 603 or 606 hereof),
this Trust Agreement may not be amended to (i) change the amount or timing
of any Distribution on the Trust Securities or otherwise adversely affect
the amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date; or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on
or after such date; notwithstanding any other provision herein, without the
unanimous consent of the Securityholders (such
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consent being obtained in accordance with Section 603 or 606 hereof), this
paragraph (c) of this Section 1002 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for
the exemption from status of an "investment company" under the Investment
Company Act or to fail or cease to be classified as a grantor trust for
United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a
copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement.
The Property Trustee shall be entitled to receive an Opinion of Counsel and
an Officers' Certificate stating that any amendment to this Trust Agreement
is in compliance with this Trust Agreement.
SECTION 1003. SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1004. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF
THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES).
SECTION 1005. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be
a day that is not a Business Day, then such payment need not be made on
such date but may be made on the next succeeding day which is a Business
Day, with the same force and effect as though made on the date fixed for
such payment, and no distribution shall accumulate thereon for the period
after such date.
SECTION 1006. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Trust or the Relevant
Trustee(s), including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that
is permitted under Article
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XII of the Indenture and pursuant to which the assignee agrees in writing to
perform the Depositor's obligations hereunder, the Depositor shall not assign
its obligations hereunder.
SECTION 1007. HEADINGS.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
SECTION 1008. REPORTS, NOTICES AND DEMANDS.
(a) Any report, notice, demand or other communication which by
any provision of this Trust Agreement is required or permitted to be given
or served to or upon any Securityholder or the Depositor may be given or
served in writing by deposit thereof, first-class postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may appear on the
Securities Register; and (ii) in the case of the Common Securityholder or
the Depositor, to Simmons First National Corporation, 501 Main Street, Pine
Bluff, Arkansas 71601, Attention: Chief Executive Officer, facsimile no.:
(501) 541-1045. Any notice to Preferred Securityholders shall also be given
to such owners as have, within two years preceding the giving of such
notice, filed their names and addresses with the Property Trustee for that
purpose. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for
all purposes, upon hand delivery, mailing or transmission.
(b) Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon the Trust, the Property Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is
published by the Trust) as follows: (i) with respect to the Property
Trustee to State Street Bank and Trust Company, Two International Place,
4th Floor, Boston, Massachusetts 02110, Attention: Corporate Trust
Department; (ii) with respect to the Delaware Trustee, to Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-0001, Attention: Corporate Trust Administration; and
(iii) with respect to the Administrative Trustees, to them at the address
above for notices to the Depositor, marked "Attention: Administrative
Trustees of Simmons First Capital Trust, c/o Chief Executive Officer,
Simmons First National Corporation." Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed
to have been sufficiently given or made only upon actual receipt of the
writing by the Trust or the Property Trustee.
SECTION 1009. AGREEMENT NOT TO PETITION.
Each of the Trustees and the Depositor agree for the benefit of
the Securityholders that, until at least one year and 1 day after the Trust
has been terminated in accordance with Article IX, they shall not file, or
join in the filing of, a petition against the Trust under any bankruptcy,
insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code of 1978, as amended)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event
the Depositor takes action in violation of this Section 1009, the Property
Trustee agrees, for the benefit of Securityholders, that at the expense of
the Depositor (which expense shall be paid prior to the filing), it shall
file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the Depositor has
agreed in writing not to take
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such action and should be stopped and precluded therefrom. The provisions of
this Section 1009 shall survive the termination of this Trust Agreement.
SECTION 1010. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such
required provision shall control. If any provision of this Trust Agreement
modifies or excludes any provision of the Trust Indenture Act which may be
so modified or excluded, the latter provision shall be deemed to apply to
this Trust Agreement as so modified or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
[Remainder of page intentionally left blank]
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SECTION 1011. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND
OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS
AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
SIMMONS FIRST NATIONAL CORPORATION
as Depositor
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
STATE STREET BANK AND TRUST COMPANY,
as Property Trustee
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
45
<PAGE> 50
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-------------------------------------------
J. Thomas May, as Administrative Trustee
-------------------------------------------
Barry L. Crow, as Administrative Trustee
-------------------------------------------
John L. Rush, as Administrative Trustee
46
<PAGE> 51
EXHIBIT A
CERTIFICATE OF TRUST
OF
SIMMONS FIRST CAPITAL TRUST
THIS CERTIFICATE OF TRUST OF SIMMONS FIRST CAPITAL TRUST (the
"Trust"), dated , 1997, is being duly executed and filed by
------------
WILMINGTON TRUST COMPANY, a Delaware banking corporation, J. Thomas
May, Barry L. Crow and John L. Rush, each an individual, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801 et seq.).
1. NAME. The name of the business trust formed hereby is SIMMONS FIRST
CAPITAL TRUST.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on
--------------, 1997.
A-1
<PAGE> 52
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
as trustee
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
-----------------------------------------------
J. Thomas May
as Trustee
-----------------------------------------------
Barry L. Crow
as Trustee
-----------------------------------------------
John L. Rush
as Trustee
A-2
<PAGE> 53
EXHIBIT B
[Intentionally Omitted]
A-3
<PAGE> 54
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER 1 NUMBER OF COMMON SECURITIES: -------
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
SIMMONS FIRST CAPITAL TRUST
COMMON SECURITIES
(LIQUIDATION AMOUNT $25.00 PER COMMON SECURITY)
SIMMONS FIRST CAPITAL TRUST, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby
certifies that Simmons First National Corporation (the "Holder") is the
registered owner of ( )
------------------------------------------- -------
common securities (the "Common Securities") of the Trust representing
undivided beneficial interests in the assets of the Trust and designated
the % Common Securities (liquidation amount $25.00 per Common
----
Security). In accordance with Section 510 of the Trust Agreement (as
defined below), the Common Securities are not transferable and any
attempted transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences, and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Trust dated as of , 1997, as the same may be
---------
amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth therein. The
Trust shall furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Trust at its principal place of business
or registered office.
Upon receive of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this day of , 1997.
---- -----------
SIMMONS FIRST CAPITAL TRUST
By
------------------------------------------
Name
------------------------------------------
Administrative Trustee
C-1
<PAGE> 55
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this
"Agreement") dated as of , 1997, between SIMMONS FIRST
-------------
NATIONAL CORPORATION, an Arkansas corporation ("the Company"), and
SIMMONS FIRST CAPITAL TRUST, a Delaware business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the
"Common Securities") to, and receive Debentures from, the Company and to
issue and sell up to % Cumulative Trust Preferred
----------- -----
Securities (the "Preferred Securities") with such powers, preferences and
special rights and restrictions as are set forth in the Amended and
Restated Trust Agreement of the Trust dated as of , 1997, as
------------
the same may be amended from time to time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the
Common Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase the Company hereby
agrees shall benefit the Company and which purchase the Company
acknowledges shall be made in reliance upon the execution and delivery of
this Agreement, the Company, including in its capacity as holder of the
Common Securities, and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY THE COMPANY.
Subject to the terms and conditions hereof, the Company,
including in its capacity as holder of the Common Securities, hereby
irrevocably and unconditionally guarantees to each person or entity to whom
the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used
herein, "Obligations" means any costs, expenses or liabilities of the Trust
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such
holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and
effect upon the later of (a) the date on which full payment has been made
of all amounts payable to all holders of all the Preferred Securities
(whether upon redemption, liquidation, exchange or otherwise); and (b) the
date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as
the case may be, if at any time any holder of Preferred Securities or any
Beneficiary
D-1
<PAGE> 56
must restore payment of any sums paid under the Preferred Securities, under any
obligation under the Preferred Securities Guarantee Agreement dated the date
hereof by the Company and State Street Bank and Trust Company, as guarantee
trustee, or under this Agreement for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute.
SECTION 1.3. WAIVER OF NOTICE.
The Company hereby waives notice of acceptance of this Agreement
and of any obligation to which it applies or may apply, and the Company
hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of the Company
under this Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all
or any portion of the obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect to
the Obligations or any action on the part of the Trust granting indulgence
or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Company with respect to the happening of any of
the foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against the
Company, and the Company waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against the Company.
ARTICLE II
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall
bind the successors, assigns, receivers, trustees and representatives of
the Company and shall inure to the benefit of the Beneficiaries.
D-2
<PAGE> 57
SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Preferred
Securities are outstanding, this Agreement shall not be modified or amended
in any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted
to be given hereunder shall be given in writing by delivering the same by
facsimile transmission (confirmed by mail), telex, or by registered or
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer back, if sent by telex):
Simmons First Capital Trust
c/o Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Facsimile No.: (501) 541-1045
Attention: Chief Executive Officer
Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Facsimile No.: (501) 541-1045
Attention: Chief Executive Officer
SECTION 2.4. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Arkansas
(without regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above
written.
SIMMONS FIRST NATIONAL CORPORATION
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
SIMMONS FIRST CAPITAL TRUST
By:
---------------------------------------------
Name:
-------------------------------------------
Administrative Trustee
D-3
<PAGE> 58
EXHIBIT E
Certificate Number Number of Preferred Securities --------
P-
Certificate Evidencing Preferred Securities
of
Simmons First Capital Trust
% Cumulative Trust Preferred Securities
----
(Liquidation Amount $25 per Preferred Security)
CUSIP NO.
Simmons First Capital Trust, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that
(the "Holder") is the registered owner of preferred
- ---------------- -----
securities (the "Preferred Securities") of the Trust representing undivided
beneficial interests in the assets of the Trust and designated the %
----
Cumulative Trust Preferred Securities (Liquidation Amount $25 per Preferred
Security). The Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon
surrender of this Certificate duly endorsed and in proper form for transfer
as provided in Section 504 of the Trust Agreement (as defined herein). The
designations, rights, privileges, restrictions, preferences, and other terms
and provisions of the Preferred Securities are set forth in, and this
Certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of , 1997, as
----------
the same may be amended from time to time (the "Trust Agreement"),
including the designation of the terms of Preferred Securities as set forth
therein. The Holder is entitled to the benefits of the Preferred Securities
Guarantee Agreement entered into by Simmons First National Corporation, an
Arkansas corporation, and State Street Bank and Trust Company, as guarantee
trustee, dated as of , 1997 (the "Guarantee"), to the extent provided
-------
therein. The Trust shall furnish a copy of the Trust Agreement and the
Guarantee to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this Certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
Unless the Certificate of Authentication has been manually
executed by the Authentication Agent, this Certificate is not valid or
effective.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this Certificate as of the date hereof.
E-1:
<PAGE> 59
Dated: SIMMONS FIRST CAPITAL TRUST
CERTIFICATE OF AUTHENTICATION
This is one of the % By
------ --------------------------------
Cumulative Trust Preferred Securities J. Thomas May, Trustee
referred to in the within-mentioned
Amended and Restated Trust Agreement. By
--------------------------------
STATE STREET BANK & TRUST COMPANY, Barry L. Crow, Trustee
as Authentication Agent and Registrar
By
--------------------------------
John L. Rush, Trustee
By
------------------------------------
Authorized Signature
E-2
<PAGE> 60
[FORM ON REVERSE OF CERTIFICATE]
The Trust will furnish without charge to any registered owner of
Preferred Securities who so requests, a copy of the Trust Agreement and the
Guarantee. Any such request should be in writing and addressed to Simmons
First Capital Trust, c/o Simmons First National Corporation, 501 Main
Street, Pine Bluff, Arkansas 71601 or to the Registrar named on the face of
this Certificate.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants UNIF GIFT MIN ACT - .....Custodian......
in common (Cust) (Minor)
TEN ENT - as tenants under Uniform Gifts to
by the entireties Minors Act.............
JT TEN - as joint tenants (State)
with right of UNIF TRF MIN ACT - ......Custodian
survivorship and (until age)..........
not as tenants .......under Uniform
in common (Minor)
TOD - transfer on death Transfers to Minors
direction in event Act..................
owner's death, (State)
to person named on
face and subject to
TOD rules referenced
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, hereby sell, assign and
--------------------------
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------
- -------------------------------------
- -------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- ---------------------------------------------------------- Preferred Securities
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
- ---------------------------------------------------------------------- Attorney
to transfer the said Preferred Securities on the books of the within named
Trust with full power of substitution in the premises.
Dated,
---------------------------
------------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERNATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:
- --------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED MEDALLION SIGNATURE GUARANTEE PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
E-3
<PAGE> 1
===============================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
BY AND BETWEEN
SIMMONS FIRST NATIONAL CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY
DATED AS OF ------------, 1997
===============================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page No.
<S> <C>
ARTICLE I DEFINITIONS AND INTERPRETATION 1
Section 1.1. Definitions and Interpretation 1
ARTICLE II TRUST INDENTURE ACT 4
Section 2.1. Trust Indenture Act; Application 4
Section 2.2. Lists of Holders of Securities 4
Section 2.3. Reports by Preferred Guarantee Trustee 5
Section 2.4. Periodic Reports to Preferred Guarantee Trustee 5
Section 2.5. Evidence of Compliance with Conditions Precedent 5
Section 2.6. Events of Default; Waiver 5
Section 2.7. Event of Default; Notice 5
Section 2.8. Conflicting Interests 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE 6
Section 3.1. Powers and Duties of Preferred Guarantee Trustee 6
Section 3.2. Certain Rights of Preferred Guarantee Trustee 7
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee 9
ARTICLE IV PREFERRED GUARANTEE TRUSTEE 9
Section 4.1. Preferred Guarantee Trustee; Eligibility 9
Section 4.2. Appointment, Removal and Resignation of Preferred Guarantee Trustee 9
ARTICLE V GUARANTEE 10
Section 5.1. Guarantee 10
Section 5.2. Waiver of Notice and Demand 10
Section 5.3. Obligations not Affected 11
Section 5.4. Rights of Holders 12
Section 5.5. Guarantee of Payment 12
Section 5.6. Subrogation 12
Section 5.7. Independent Obligations 12
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION 12
Section 6.1. Limitation of Transactions 12
Section 6.2. Ranking 13
ARTICLE VII TERMINATION 13
Section 7.1. Termination 13
ARTICLE VIII INDEMNIFICATION 13
Section 8.1. Exculpation 13
Section 8.2. Indemnification 14
i
<PAGE> 3
<S> <C>
ARTICLE IX MISCELLANEOUS 14
Section 9.1. Successors and Assigns 14
Section 9.2. Amendments 14
Section 9.3. Notices 14
Section 9.4. Benefit 15
Section 9.5. Governing Law 15
</TABLE>
ii
<PAGE> 4
<TABLE>
CROSS REFERENCE TABLE
<CAPTION>
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
---------------- ----------
<C> <C>
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Not Applicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Not Applicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Not Applicable
314(c) 2.5
314(d) Not Applicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
317(a) 3.1
317(b) Not Applicable
318(a) 2.1(a)
318(b) 2.1
318(c) 2.1(b)
Note: This Cross-Reference Table does not constitute part of this
Agreement and shall not affect the interpretation of any of its
terms or provisions.
</TABLE>
iii
<PAGE> 5
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (this "Preferred
Securities Guarantee"), dated as of ---------, 1997 is executed and
delivered by SIMMONS FIRST NATIONAL CORPORATION, an Arkansas
corporation (the "Guarantor"), and STATE STREET BANK AND TRUST
COMPANY, a trust company organized and existing under the laws of the
Commonwealth of Massachusetts, as trustee (the "Preferred Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to
time of the Preferred Securities (as defined herein) of Simmons First Capital
Trust, a Delaware statutory business trust (the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of ---------, 1997, among the trustees of the
Trust named therein, the Guarantor, as depositor, and the holders from time
to time of undivided beneficial interests in the assets of the Trust, the
Trust is issuing on the date hereof up to 690,000 preferred securities,
having an aggregate liquidation amount of up to $17,250,000, designated the
- ------% Cumulative Trust Preferred Securities (the "Preferred Securities");
WHEREAS, as an incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND INTERPRETATION.
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) terms defined in the Trust Agreement as at the date of execution
of this Preferred Securities Guarantee have the same meaning when used in
this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee
as modified, supplemented or amended from time to time;
<PAGE> 6
(e) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred Securities
Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless otherwise defined
in this Preferred Securities Guarantee or unless the context otherwise
requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a day on which federal or state
banking institutions in New York, New York are authorized or required by
law, executive order or regulation to close or a day on which the Corporate
Trust Office of the Preferred Guarantee Trustee is closed for business.
"Corporate Trust Office" means the office of the Preferred Guarantee
Trustee at which the corporate trust business of the Preferred Guarantee
Trustee shall, at any particular time, be principally administered, which
office at the date of execution of this Preferred Securities Guarantee is
located at Two International Place, 4th Floor, Boston, Massachusetts 02110,
Attention: Corporate Trust Department.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the -----% Subordinated Debentures due June 30,
2027, of the Debenture Issuer held by the Property Trustee of the Trust.
"Debenture Issuer" means the Guarantor.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantor" means Simmons First National Corporation, an Arkansas
corporation.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent
not paid or made by the Trust: (i) any accrued and unpaid Distributions
that are required to be paid on such Preferred Securities, to the extent the
Trust shall have funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price"), to the extent the Trust has funds available
therefor, with respect to any Preferred Securities called for redemption by
the Trust, and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Trust (other than in connection with the distribution
of Debentures to the Holders in exchange for Preferred Securities as provided
in the Trust Agreement), the lesser of (a) the aggregate of the Liquidation
Amount and all accrued and unpaid Distributions on the Preferred Securities
to the date of payment, to the extent the Trust shall have funds available
therefor (the "Liquidation Distribution"), and (b) the amount of assets of
the Trust remaining available for distribution to Holders in liquidation of
the Trust.
2
<PAGE> 7
"Holder" shall mean any holder, as registered on the books and records
of the Trust, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of ---------, 1997 among the
Debenture Issuer and State Street Bank and Trust Company, as trustee, and
any indenture supplemental thereto pursuant to, which -----% Subordinated
Debentures of the Debenture Issuer are to be issued to the Property Trustee
of the Trust.
"Liquidation Distribution" has the meaning provided therefor in the
definition of Guarantee Payments.
"List of Holders" has the meaning set forth in Section 2.2 of this
Preferred Securities Guarantee.
"Majority in Liquidation Amount of the Preferred Securities" means the
holders of more than 50% of the Liquidation Amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all of the Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two authorized officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or
covenant provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, or government
or any agency or political subdivision thereof, or any other entity of
whatever nature.
"Preferred Guarantee Trustee" means State Street Bank and Trust
Company, until a Successor Preferred Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms
3
<PAGE> 8
of this Preferred Securities Guarantee and thereafter means each such Successor
Preferred Guarantee Trustee.
"Redemption Price" has the meaning provided therefor in the definition
of Guarantee Payments.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice-president, any assistant
vice-president, any assistant secretary, the treasurer, any assistant
treasurer or other officer of the Corporate Trust Office of the Preferred
Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939, as
amended, is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by
such provisions.
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed
by Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) In the event the Preferred Guarantee Trustee is not also the
Securities Registrar, the Guarantor shall provide the Preferred Guarantee
Trustee with a list, in such form as the Preferred Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the
Preferred Securities (the "List of Holders") as of such date, (i) within
1 Business Day after January 1 and June 30 of each year, and (ii) at any
other time within 30 days of receipt by the Guarantor of a written request
for a List of Holders as of a date no more than 15 days before such List of
Holders is given to the Preferred Guarantee Trustee; provided, that the
Guarantor shall not be obligated to provide such List of Holders at any time
the List of Holders does not differ from the most recent List of Holders
given to the Preferred Guarantee Trustee by the Guarantor. The Preferred
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
4
<PAGE> 9
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY PREFERRED GUARANTEE TRUSTEE.
On or before July 15 of each year, the Preferred Guarantee Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The
Preferred Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of
the Trust Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for
in this Preferred Securities Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities,
waive any past Event of Default and its consequences. Upon such waiver, any
such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events
of Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such
notice; provided, that the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Preferred Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee
shall have received written notice, or of which a Responsible Officer of the
Preferred Guarantee Trustee charged with the administration of the Trust
Agreement shall have obtained actual knowledge.
5
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SECTION 2.8. CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF PREFERRED GUARANTEE TRUSTEE.
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee
Trustee, and such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered pursuant to
the appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Preferred Guarantee Trustee has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Preferred Securities Guarantee, and no implied covenants
shall be read into this Preferred Securities Guarantee against the Preferred
Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Preferred Securities Guarantee, and use the same degree of care and
skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred Guarantee Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this Preferred
Securities Guarantee against the Preferred Guarantee Trustee; and
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(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Preferred Guarantee Trustee and conforming to the requirements of
this Preferred Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Preferred Guarantee Trustee, the Preferred
Guarantee Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Preferred Securities
Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee, or exercising any trust or power conferred upon
the Preferred Guarantee Trustee under this Preferred Securities Guarantee;
and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability is not reasonably assured to it
under the terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against such risk
or liability is not reasonably assured to it.
SECTION 3.2. CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Preferred Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith
on its part, request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered by the
Guarantor;
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(iv) the Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof);
(v) the Preferred Guarantee Trustee may consult with counsel,
and the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. S uch counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its employees.
The Preferred Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred Securities
Guarantee from any court of competent jurisdiction;
(vi) the Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Preferred Guarantee Trustee
such security and indemnity, reasonably satisfactory to the Preferred
Guarantee Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Preferred Guarantee Trustee's agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances
as may be requested by the Preferred Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi) shall be taken to relieve the
Preferred Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Preferred Securities Guarantee;
(vii) the Preferred Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(viii) the Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and the
Preferred Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred Securities, and the
signature of the Preferred Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party shall be
required to inquire as to the authority of the Preferred Guarantee Trustee
to so act or as to its compliance with any of the terms and provisions of
this Preferred Securities Guarantee, both of which shall be conclusively
evidenced by the Preferred Guarantee Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Preferred Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the
Preferred Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in accordance
with such instructions.
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(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal,
or in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or obligation. No permissive
power or authority available to the Preferred Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The Recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not
assume any responsibility for their correctness. The Preferred Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the purposes
of this Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee
shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
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(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor and the
resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within
60 days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Trust to pay such amounts to the Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
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SECTION 5.3. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be
performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Preferred Securities (other than an
extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures or any extension
of the maturity date of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust or
any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) any failure or omission to receive any regulatory approval or
consent required in connection with the Preferred Securities (or the common
equity securities issued by the Trust), including the failure to receive any
approval of the Board of Governors of the Federal Reserve System required
for the redemption of the Preferred Securities;
(g) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(h) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
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SECTION 5.4. RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting
of any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Trust, the Preferred Guarantee Trustee or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.6. SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Preferred Securities against the Trust in respect of any amounts paid to
such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise
any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under
this Preferred Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Preferred Securities Guarantee. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders
and to pay over such amount to the Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Preferred Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (h), inclusive, of Section 5.3
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS.
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default under this Preferred Securities Guarantee,
an Event of Default under the Trust Agreement or during an Extended Interest
Payment Period (as defined in the Indenture), then (a) the Guarantor shall
not declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital
stock (other than (i) dividends or distributions in common stock of the
Guarantor or any declaration of a non-cash dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption
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or repurchase of any such rights pursuant thereto, and (ii) purchases of common
stock of the Guarantor related to the rights under any of the Guarantor's
benefit plans for its directors, officers or employees), (b) the Guarantor
shall not make any payment of principal or interest on or repay, repurchase or
redeem any debt securities issued by the Guarantor which rank pari passu with
or junior to the Debentures and (c) the Guarantor shall not redeem, purchase or
acquire less than all of the Outstanding Debentures or any of the Preferred
Securities.
SECTION 6.2 RANKING.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in
right of payment to all other liabilities of the Guarantor, (ii) pari passu
with the most senior preferred securities or preference stock now or
hereafter issued by the Guarantor and with any guarantee now or hereafter
entered into by the Guarantor in respect of any preferred securities or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION.
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) upon full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust, or (iii) upon distribution of the Debentures to the
Holders of the Preferred Securities. Notwithstanding the foregoing, this
Preferred Securities Guarantee shall continue to be effective or shall be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred
Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Preferred Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters
the Indemnified Person reasonably believes are within such other Person's
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professional or expert competence and who has been selected with reasonable
care by or on behalf of the Guarantor, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Preferred Securities might
properly be paid.
SECTION 8.2. INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
and expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligation to indemnify as set forth in this
Section 8.2 shall survive the termination of this Preferred Securities
Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended with the
prior approval of the Holders of at least a Majority in liquidation amount of
the Preferred Securities. The provisions of Article VI of the Trust
Agreement with respect to meetings of Holders of the Preferred Securities
apply to the giving of such approval.
SECTION 9.3. NOTICES.
All notices provided for in this Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address
as the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
State Street Bank and Trust Company
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Corporate Trust Department
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(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Attention: Chief Executive Officer
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 9.4. BENEFIT.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5. GOVERNING LAW.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ARKANSAS.
[Remainder of page intentionally left blank.]
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This Preferred Securities Guarantee is executed as of the day and year
first above written.
SIMMONS FIRST NATIONAL CORPORATION,
as Guarantor
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
STATE STREET BANK AND TRUST COMPANY,
as Preferred Guarantee Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
16
<PAGE> 1
[Letterhead of Lewis, Rice & Fingersh, L.C.]
June , 1997
Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Attention: Board of Directors
Simmons First Capital Trust
c/o Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71601
Attention: Administrative Trustees
Gentlemen:
We have acted as special counsel to Simmons First National
Corporation, an Arkansas corporation (the "Company"), and Simmons First
Capital Trust, a Delaware statutory business trust ("Simmons Trust"), in
connection with the preparation of a Registration Statement on Form S-3 (the
"Registration Statement") to be filed by the Company and Simmons Trust with
the Securities and Exchange Commission (the "SEC") for the purpose of
registering under the Securities Act of 1933, as amended, preferred
securities (the "Preferred Securities") of Simmons Trust, subordinated
debentures (the "Subordinated Debentures") of the Company and the guarantee
of the Company with respect to the Preferred Securities (the "Guarantee").
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
certificate of trust (the "Certificate of Trust") filed by Simmons Trust
with the Secretary of State of the State of Delaware on -----------, 1997;
(ii) the Trust Agreement, dated as of ---------------, 1997, with respect to
Simmons Trust; (iii) the form of the Amended and Restated Trust Agreement
with respect to Simmons Trust; (iv) the form of the Preferred Securities of
Simmons Trust; (v) the form of the Guarantee between the Company and State
Street Bank and Trust Company, as trustee; (vi) the form of the Subordinated
Debentures; and (vii) the form of the indenture (the "Indenture"), between
the Company and State Street Bank and Trust Company, as trustee, in each
case in the form filed as an exhibit to the Registration Statement. We have
also examined originals or copies, certified, or otherwise identified to our
satisfaction, of such other documents, certificates, and records as we have
deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as copies and the authenticity of the
originals of such copies. In examining documents executed by parties other
than the Company or Simmons Trust, we have assumed that such parties had the
power, corporate or otherwise, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite
action, corporate or otherwise, and execution and delivery by such parties
of such documents and that, except as set forth in paragraphs (1) and (2)
below, such documents constitute valid and binding obligations of such
parties.
<PAGE> 2
In addition, we have assumed that the Amended and Restated Trust Agreement of
Simmons Trust, the Preferred Securities of Simmons Trust, the Guarantee, the
Subordinated Debentures and the Indenture, when executed, will be executed in
substantially the form reviewed by us. As to any facts material to the
opinions expressed herein which were not independently established or verified,
we have relied upon oral or written statements and representations of officers,
trustees, and other representatives of the Company, Simmons Trust, and others.
We are members of the bar of the states of Missouri and Illinois,
and we express no opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing and to other
qualifications and limitations set forth herein, we are of the opinion that:
1. After the Indenture has been duly executed and delivered,
the Subordinated Debentures, when duly executed, delivered, authenticated
and issued in accordance with the Indenture and delivered and paid for as
contemplated by the Registration Statement, will be valid and binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to
the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights generally, and
(ii) general principles of equity regardless of whether enforceability is
considered in a proceeding at law or in equity.
2. The Guarantee, when duly executed and delivered by the
parties thereto, will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of
equity regardless of whether enforceability is considered in a proceeding at
law or in equity.
We hereby consent to the reference to us under the caption
"Validity of Securities" in the Prospectus forming a part of the
Registration Statement and to the inclusion of this legal opinion as an
Exhibit to the Registration Statement.
Very truly yours,
LEWIS, RICE & FINGERSH, L.C.
<PAGE> 1
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
June 5, 1997
Simmons First Capital Trust
c/o Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71611
Re: Simmons First Capital Trust
---------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Simmons First Capital Trust,
a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust (the "Certificate"), as filed
in the office of the Secretary of State of the State of Delaware (the
"Secretary of State") on June 3, 1997;
(b) The Trust Agreement of the Trust, dated as of June 2, 1997, between
Simmons First National Corporation, an Arkansas corporation (the "Company"), and
the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a prospectus (the "Prospectus") relating to the ___% Cumulative
Trust Preferred Securities of the
<PAGE> 2
Simmons First Capital Trust
June 5, 1997
Page 2
Trust representing preferred undivided beneficial interests in the Trust (each,
a "Preferred Security" and collectively, the "Preferred Securities"), as
filed by the Company and the Trust as set forth therein with the Securities
and Exchange Commission on June 6, 1997;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the Trust
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated June 3, 1997,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and
the additional matters recited or assumed herein, all of which we have
assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Trust Agreement and the Certificate are
in full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation or due organization or due
formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the legal capacity
of natural persons who are parties to the documents examined by us, (iv) that
each of the parties to the documents examined by us has the power and authority
to execute and deliver, and to perform its obligations under, such documents,
(v) the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the "Preferred Security
Holders") of a Preferred Security Certificate for such Preferred Security
and the payment for the
<PAGE> 3
Simmons First Capital Trust
June 5, 1997
Page 3
Preferred Security acquired by it, in accordance with the Trust Agreement and
the Prospectus, and (vii) that the Preferred Securities are issued and sold to
the Preferred Security Holders in accordance with the Trust Agreement and the
Prospectus. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12
Del. C. section 3801, et seq.
- ------ ------
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Validity of Securities" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
Richards, Layton & Finger
EAM
<PAGE> 1
[Letterhead of Lewis, Rice & Fingersh, L.C.]
June , 1997
Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71611
Attention: Board of Directors
Simmons First Capital Trust
c/o Simmons First National Corporation
501 Main Street
Pine Bluff, Arkansas 71611
Attention: Administrative Trustees
Gentlemen:
We have acted as tax counsel to Simmons First National
Corporation, an Arkansas corporation (the "Company"), and to Simmons First
Capital Trust, a statutory business trust created under the laws of Delaware
(the "Trust"), in connection with the proposed issuance of (i) Preferred
Securities (the "Preferred Securities") of the Trust pursuant to the terms
of the Amended and Restated Trust Agreement between the Company and State
Street Bank and Trust Company, as trustee (the "Trust Agreement"), to be
offered in an underwritten public offering, (ii) Subordinated Debentures (the
"Debentures") of the Company pursuant to the terms of an indenture from the
Company to State Street Bank and Trust Company, as trustee (the
"Indenture"), to be sold by the Company to the Trust, and (iii) the Preferred
Securities Guarantee Agreement of the Company with respect to the Preferred
Securities (the "Guarantee") between the Company and State Street Bank and
Trust Company, as trustee. The Preferred Securities and the Debentures are
to be issued as contemplated by the registration statement on Form S-3 (the
"Registration Statement") to be filed by the Company and the Trust to
register the issuance of the Preferred Securities, the Debentures and the
Guarantee under the Securities Act of 1933, as amended (the "Act").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of documents, corporate records and other
instruments as we have deemed necessary or appropriate for purposes of this
opinion including (i) the Registration Statement, (ii) the Form of Indenture
attached as an exhibit to the Registration Statement, (iii) the Form of the
Debentures attached as an exhibit to the Registration Statement (iv) the
Form of Trust Agreement attached as an exhibit to the Registration
Statement, (v) the Form of Guarantee attached as an exhibit to the
Registration Statement, and (vi) the Form of Preferred Security Certificate
attached as an exhibit to the Registration Statement (collectively the
"Documents"). In such examination, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies, the
authenticity of the originals of such latter documents, the genuineness of
all signatures and the correctness of all representations made therein. We
have further assumed that there are no agreements or understandings
contemplated therein other than those contained in the Documents.
Based upon the foregoing, and assuming (i) the final Documents
will be substantially identical to the forms attached as exhibits to the
Registration Statement, and (ii) full compliance with all the terms
<PAGE> 2
of the final Documents, we are of the opinion that the statements contained in
the preliminary prospectus constituting part of the Registration Statement
under the caption "Certain Federal Income Tax Consequences," insofar as such
statements constitute matters of law or legal conclusions, as qualified therein,
constitute an accurate description, in general terms, of the indicated United
States federal income tax consequences to such holders.
The opinion expressed above is based on existing provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), existing Treasury
regulations, published interpretations of the Code and such Treasury
regulations by the Internal Revenue Service, and existing court decisions,
any of which could be changed at any time. Any such changes may or may not
be retroactively applied. We note that there is no authority directly on
point dealing with securities such as the Preferred Securities or of
transactions of the type described herein. Further, you should be aware that
opinions of counsel are not binding on the Internal Revenue Service or the
courts. We express no opinion as to any matters not specifically covered by
the foregoing opinions or as to the effect on the matters covered by this
opinion of the laws of any other jurisdiction. Additionally, we undertake
no obligation to update this opinion in the event there is either a change
in the legal authorities, in the facts (including the taking of any action
by any party to any of the transactions described in the Documents relating
to such transactions) or in the Documents on which this opinion is based, or
an inaccuracy in any of the representations or warranties upon which we have
relied in rendering this opinion.
This letter is not being delivered for the benefit of, nor may it
be relied upon by, the holders of the Debentures, the Guarantee or the
Preferred Securities or any other party to which it is not specifically
addressed or on which reliance is not expressly permitted hereby.
We hereby consent to the filing of this opinion as an Exhibit to
the Registration Statement and to reference to our firm under the caption
"Certain Federal Income Tax Consequences" and "Validity of Securities" in
the preliminary prospectus constituting a part of the Registration Statement.
Very truly yours,
LEWIS, RICE & FINGERSH, L.C.
<PAGE> 1
<TABLE>
SIMMONS FIRST NATIONAL CORPORATION<Fa>
RATIO OF EARNINGS TO FIXED CHARGES
THREE MONTHS ENDING MARCH 31, 1996 AND 1997
YEARS ENDED DECEMBER 31, 1996, 1995, 1994, 1993 AND 1992
<CAPTION>
Three Months
Ended March 31,
(Unaudited) Year Ended December 31,
---------------------- ------------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
--------- --------- ---------- ---------- ---------- ---------- ----------
(DOLLAR AMOUNTS IN
THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Income before provision
for income taxes 3,616 3,106 14,624 14,217 13,641 12,862 10,384
--------- --------- ---------- ---------- ---------- ---------- ----------
Fixed Charges:
Interest expense
(excluding interest on
deposits) 518 509 1,793 2,201 1,997 1,693 2,005
One-third of rental
expense 94 101 406 327 314 273 312
--------- --------- ---------- ---------- ---------- ---------- ----------
Total fixed charges
(excluding interest on
deposits) 612 610 2,199 2,528 2,311 1,966 2,317
Interest on deposits 6,537 6,422 25,769 22,264 14,471 14,251 17,512
--------- --------- --------- --------- --------- --------- ---------
Total fixed charges 7,149 7,032 27,968 24,792 16,782 16,217 19,829
--------- --------- --------- --------- --------- --------- ---------
Income before provision
for income taxes, plus
total fixed charges:
Excluding interest on
deposits 4,228 3,716 16,823 16,745 15,952 14,828 12,701
--------- --------- --------- --------- --------- --------- ---------
Including interest on
deposits 10,765 10,138 42,592 39,009 30,423 29,079 30,213
--------- --------- --------- --------- --------- --------- ---------
Ratio of earnings (as
defined) to fixed
charges:
Including interest on
deposits 1.51 1.44 1.52 1.57 1.81 1.79 1.52
Excluding interest on
deposits 6.91 6.09 7.65 6.62 6.90 7.54 5.48
<FN>
<Fa> For purposes of computing these ratios, earnings represent consolidated income before
income taxes plus consolidated fixed charges. Fixed charges, excluding interest on
deposits, include interest expense (other than on deposits) and one-third (the
proportion deemed representative of the interest factor) of rental expense. Fixed
charges, including interest on deposits, include all interest expense and one-third
(the proportion deemed representative of the interest factor) of rental expense.
</TABLE>
<PAGE> 2
<TABLE>
SIMMONS FIRST NATIONAL CORPORATION<Fa>
INCLUDING COMBINED RUSSELLVILLE/SEARCY
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
THREE MONTHS ENDING MARCH 31, 1997
YEAR ENDED DECEMBER 31, 1996
<CAPTION>
Three Months Year Ended
Ended March 31, December 31,
--------------- ------------
1997 1996
--------------- ------------
(DOLLAR AMOUNTS IN
THOUSANDS)
<S> <C> <C>
Pro Forma income before provision
for income taxes 3,576 12,395
--------------- ------------
Fixed Charges:
Interest expense
(excluding interest on
deposits) 1,504 5,718
Amortization of
issuance costs 7 28
One-third of rental
expense 99 425
--------------- ------------
Total fixed charges
(excluding interest on
deposits) 1,610 6,171
Interest on deposits 9,827 37,841
--------------- ------------
Total fixed charges 11,437 44,012
--------------- ------------
Pro Forma income before provision
for income taxes, plus
total fixed charges:
Excluding interest on
deposits 5,186 18,566
--------------- ------------
Including interest on
deposits 15,013 56,407
--------------- ------------
Ratio of earnings (as
defined) to fixed
charges:
Including interest on
deposits 1.31 1.28
Excluding interest on
deposits 3.22 3.01
<FN>
<Fa> For purposes of computing these ratios, earnings represent consolidated
income before income taxes plus consolidated fixed charges. Fixed
charges, excluding interest on deposits, include interest expense (other
than on deposits), amortization of debt issuance costs and one-third
(the proportion deemed representative of the interest factor) of rental
expense. Fixed charges, including interest on deposits, include all
interest expense and one-third (the proportion deemed representative of the
interest factor) of rental expense.
</TABLE>
<PAGE> 1
Baird, Kurtz & Dobson
200 East 11th Avenue
P.O. Box 8306
Pine Bluff, AR 71611
June 6, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Simmons First National Corporation has included our
report dated May 7, 1997 (issued pursuant to the provisions of Statement on
Auditing Standards No. 71) in the Prospectus constituting part of its
Registration Statement on Form S-3. We are also aware of our responsibilities
under the Securities Act of 1933.
/s/ Baird, Kurtz & Dobson, CPA's
Baird, Kurtz & Dobson, CPA's
<PAGE> 1
Independent Accountants' Consent
--------------------------------
We consent to the use of our report dated January 29, 1997, on the
consolidated financial statements of SIMMONS FIRST NATIONAL CORPORATION as
of December 31, 1996 and 1995, and for each of the three years in the period
ended December 31, 1996, incorporated by reference in the Registration
Statement on Form S-3 from the Simmons First National Corporation 1996 Form
10-K. We also consent to the reference to our firm under the caption "Experts"
appearing in Registration Statement.
/s/ Baird, Kurtz & Dobson
Baird, Kurtz & Dobson
Pine Bluff, Arkansas
June 6, 1997
<PAGE> 1
Independent Accountants' Consent
--------------------------------
We consent to the use of our report dated May 30, 1997, on the combined
financial statements of FIRST BANK OF ARKANSAS - RUSSELLVILLE/SEARCY as of
December 31, 1996 and for the year then ended, incorporated by reference in
the Registration Statement on Form S-3 from the Simmons First National
Corporation Form 8-K dated June 6, 1997. We also consent to the reference to
our firm under the caption "Experts" appearing in Registration Statement.
/s/ Baird, Kurtz & Dobson
Baird, Kurtz & Dobson
Pine Bluff, Arkansas
June 6, 1997
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) --
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(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 (I.R.S. Employer
incorporation or organization) Identification No.)
501 Main Street
Pine Bluff, Arkansas 71611
(Address of principal executive offices) (Zip Code)
--------------------
Guarantee
(Title of indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System,
Washington, D.C., Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as
now in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of
association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained in
the documents specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe,
Inc.(File No. 22-17940) and is incorporated herein by
reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is
on file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement
of Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
1
<PAGE> 3
5. A copy of each indenture referred to in Item 4. if the
obligor is in default.
Not applicable.
6. The consents of United States institutional trustees required
by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of
the Act is annexed hereto as Exhibit 6 and made a part
hereof.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended,
if necessary, to reflect any facts which differ from those stated and which
would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 28th day of May, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ Paul D. Allen
---------------------------------------
Paul D. Allen
Vice President
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, as amended, in connection with the proposed issuance by
Simmons First National Corporation of its Guarantee, we hereby consent that
reports of examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ Paul D. Allen
-----------------------------------------
Paul D. Allen
Vice President
Dated: May 28, 1997
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this
commonwealth and a member of the Federal Reserve System, at the close of
business March 31, 1997, published in accordance with a call made by the
--------------
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act and in accordance with a call made by the Commissioner of
Banks under General Laws, Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
Dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,665,142
Interest-bearing balances 8,193,292
Securities 10,238,113
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary 5,853,144
Loans and lease financing receivables:
Loans and leases, net of unearned income 4,936,454
Allowance for loan and lease losses 70,307
Allocated transfer risk reserve 0
Loans and leases, net of unearned income and allowances 4,866,147
Assets held in trading accounts 957,478
Premises and fixed assets 380,117
Other real estate owned 884
Investments in unconsolidated subsidiaries 25,835
Customers' liability to this bank on acceptances outstanding 45,548
Intangible assets 158,080
Other assets 1,066,957
----------
Total assets 33,450,737
==========
LIABILITIES
Deposits:
In domestic offices 8,270,845
Noninterest-bearing 6,318,360
Interest-bearing 1,952,485
In foreign offices and Edge subsidiary 12,760,086
Noninterest-bearing 53,052
Interest-bearing 12,707,034
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary 8,216,641
Demand notes issued to the U.S. Treasury and Trading Liabilities 926,821
Other borrowed money 671,164
Subordinated notes and debentures 0
Bank's liability on acceptances executed and outstanding 46,137
Other liabilities 745,529
Total liabilities 31,637,223
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 29,931
Surplus 360,717
Undivided profits and capital reserves/Net unrealized holding gains (losses) 1,426,881
Cumulative foreign currency translation adjustments (4,015)
Total equity capital 1,813,514
----------
Total liabilities and equity capital 33,450,737
==========
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) --
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(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 (I.R.S. Employer
incorporation or organization) Identification No.)
501 Main Street
Pine Bluff, Arkansas 71611
(Address of principal executive offices) (Zip Code)
---------------------
% Subordinated Debentures
(Title of indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System,
Washington, D.C., Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as
now in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained in
the documents specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is
on file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement
of Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
1
<PAGE> 3
5. A copy of each indenture referred to in Item 4. if the obligor
is in default.
Not applicable.
6. The consents of United States institutional trustees required
by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of
the Act is annexed hereto as Exhibit 6 and made a part
hereof.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended,
if necessary, to reflect any facts which differ from those stated and which
would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 28th day of May, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ Paul D. Allen
---------------------------------------------
Paul D. Allen
Vice President
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, as amended, in connection with the proposed issuance by
Simmons First National Corporation of its % Subordinated Debentures, we
hereby consent that reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities
and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ Paul D. Allen
---------------------------------------------
Paul D. Allen
Vice President
Dated: May 28, 1997
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this
commonwealth and a member of the Federal Reserve System, at the close of
business March 31, 1997, published in accordance with a call made by the
--------------
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act and in accordance with a call made by the Commissioner of
Banks under General Laws, Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
Dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,665,142
Interest-bearing balances 8,193,292
Securities 10,238,113
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary 5,853,144
Loans and lease financing receivables:
Loans and leases, net of unearned income 4,936,454
Allowance for loan and lease losses 70,307
Allocated transfer risk reserve 0
Loans and leases, net of unearned income and allowances 4,866,147
Assets held in trading accounts 957,478
Premises and fixed assets 380,117
Other real estate owned 884
Investments in unconsolidated subsidiaries 25,835
Customers' liability to this bank on acceptances outstanding 45,548
Intangible assets 158,080
Other assets 1,066,957
----------
Total assets 33,450,737
==========
LIABILITIES
Deposits:
In domestic offices 8,270,845
Noninterest-bearing 6,318,360
Interest-bearing 1,952,485
In foreign offices and Edge subsidiary 12,760,086
Noninterest-bearing 53,052
Interest-bearing 12,707,034
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary 8,216,641
Demand notes issued to the U.S. Treasury and Trading Liabilities 926,821
Other borrowed money 671,164
Subordinated notes and debentures 0
Bank's liability on acceptances executed and outstanding 46,137
Other liabilities 745,529
Total liabilities 31,637,223
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 29,931
Surplus 360,717
Undivided profits and capital reserves/Net unrealized holding gains (losses) 1,426,881
Cumulative foreign currency translation adjustments (4,015)
Total equity capital 1,813,514
----------
Total liabilities and equity capital 33,450,737
==========
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) --
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
-------------------
Simmons First Capital Trust
(Exact name of obligor as specified in its charter)
Delaware XX-XXXXXXX
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
501 Main Street
Pine Bluff, Arkansas 71611
(Address of principal executive offices) (Zip Code)
--------------------
Preferred Securities
(Title of indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System,
Washington, D.C., Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as
now in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
2. A copy of the certificate of authority of the trustee to
commerce business, if not contained in the articles of
association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained in
the documents specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe,
Inc.(File No. 22-17940) and is incorporated herein by
reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is
on file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement
of Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
1
<PAGE> 3
5. A copy of each indenture referred to in Item 4. if the
obligor is in default.
Not applicable.
6. The consents of United States institutional trustees required
by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of
the Act is annexed hereto as Exhibit 6 and made a part
hereof.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended,
if necessary, to reflect any facts which differ from those stated and which
would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 28th day of May, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ Paul D. Allen
--------------------------------------------
Paul D. Allen
Vice President
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, as amended, in connection with the proposed issuance by
Simmons First Capital Trust of its Preferred Securities, we hereby consent
that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ Paul D. Allen
---------------------------------------
Paul D. Allen
Vice President
Dated: May 28, 1997
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this
commonwealth and a member of the Federal Reserve System, at the close of
business March 31, 1997, published in accordance with a call made by the
--------------
Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act and in accordance with a call made by the Commissioner of
Banks under General Laws, Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
Dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,665,142
Interest-bearing balances 8,193,292
Securities 10,238,113
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary 5,853,144
Loans and lease financing receivables:
Loans and leases, net of unearned income 4,936,454
Allowance for loan and lease losses 70,307
Allocated transfer risk reserve 0
Loans and leases, net of unearned income and allowances 4,866,147
Assets held in trading accounts 957,478
Premises and fixed assets 380,117
Other real estate owned 884
Investments in unconsolidated subsidiaries 25,835
Customers' liability to this bank on acceptances outstanding 45,548
Intangible assets 158,080
Other assets 1,066,957
----------
Total assets 33,450,737
==========
LIABILITIES
Deposits:
In domestic offices 8,270,845
Noninterest-bearing 6,318,360
Interest-bearing 1,952,485
In foreign offices and Edge subsidiary 12,760,086
Noninterest-bearing 53,052
Interest-bearing 12,707,034
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary 8,216,641
Demand notes issued to the U.S. Treasury and Trading Liabilities 926,821
Other borrowed money 671,164
Subordinated notes and debenture 0
Bank's liability on acceptances executed and outstanding 46,137
Other liabilities 745,529
Total liabilities 31,637,223
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 29,931
Surplus 360,717
Undivided profits and capital reserves/Net unrealized holding gains (losses) 1,426,881
Cumulative foreign currency translation adjustments (4,015)
Total equity capital 1,813,514
----------
Total liabilities and equity capital 33,450,737
==========
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
5
