<PAGE>
As filed with Securities and Exchange Commission on May 23, 1997.
Registration Statement Nos. 333-26891.
333-26891.-01
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
SBI Capital Trust Southwest Bancorp, Inc.
(Exact Name of Registrant as (Exact Name of Registrant as
Specified in its Charter) Specified in its Charter)
Delaware Applied For Oklahoma 73-1136584
(State or Other (IRS Employer (State or Other (IRS Employer
Jurisdiction of I.D. Number) Jurisdiction of I.D. Number)
Incorporation or Incorporation or
Organization Organization
608 South Main Street, Stillwater, Oklahoma 74074 (405) 372-2230
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrants' Principal Executive Offices)
Robert L. McCormick, Jr., 608 South Main Street, Stillwater, Oklahoma 74074
(405) 372-2230
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copies To:
James I. Lundy, III Esquire Frederick W. Scherrer, Esquire
Noel M. Gruber, Esquire Bryan Cave LLP
Kennedy & Baris, L.L.P. One Metropolitan Square
4719 Hampden Lane, Suite 300, 211 North Broadway, Suite 3600
Bethesda Maryland 20814 St. Louis, Missouri 63102-2750
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 a copy of 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, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] ___________________________
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] _____________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
Title of Each Class
of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered be Registered Offering Price Per Unit Aggregate Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Preferred Securities of
SBI Capital Trust/(1)/ 1,000,500/(1)/ $25.00 $25,012,500/(1)/ $8,625/(2)/
- ---------------------------------------------------------------------------------------------------------------------------------
Subordinated Debentures of
Southwest Bancorp, Inc./(3)/
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Guarantee of Southwest Bancorp,
Inc. with respect to Preferred
Securities/(4)/
=================================================================================================================================
</TABLE>
(1) Includes 130,500 preferred securities which may be sold pursuant to the
over-allotment option granted to the Underwriter.
(2) Registration fee calculated in accordance with Rules 457(i) and 457(n).
(3) Subordinated Debentures in a principal amount equal to the aggregate
offering price of the Preferred Securities will be sold to SBI Capital
Trust with the proceeds of the sale of the Preferred Securities, and may
be distributed to the holders of the Preferred Securities without further
consideration upon dissolution of SBI Capital Trust.
(4) This Registration Statement relates to and shall be deemed to cover, in
addition to the securities referenced above, the rights of the holders
thereof under the Indenture for the Subordinated Debentures and the rights
of holders of Preferred Securities under the Trust Agreement, the
Guarantee, and the Expense Agreement. No separate consideration will be
received for the Guarantee.
The Registration hereby amends this registration statement on such date of dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 23, 1997
PROSPECTUS
870,000 PREFERRED SECURITIES
SBI CAPITAL TRUST
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED, AS DESCRIBED HEREIN, BY
-----------------
SOUTHWEST BANCORP, INC.
$21,750,000 % SUBORDINATED DEBENTURES OF
-----------------
SOUTHWEST BANCORP, INC.
Parent Company of
[LOGO OF OKLAHOMA'S STILLWATER NATIONAL BANK & TRUST COMPANY APPEARS HERE]
The % Cumulative Trust Preferred Securities (the "Preferred Securities")
offered hereby represent preferred undivided beneficial interests in the assets
of SBI Capital Trust, a statutory business trust created unde r the laws of
the State of Delaware ("SBI Capital"). Southwest Bancorp, Inc., an Oklahoma
corporation (the
(continued on following page)
Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market under the symbol
"OKSBO".
-----------------
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 NONBANKING 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.
-----------------
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<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC COMMISSIONS (1) SBI CAPITAL (2)
- -------------------------------------------------------------------
<S> <C> <C> <C>
Per Preferred Security $25.00 (2) $25.00
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Total (3) $21,750,000 (2) $21,750,000
</TABLE>
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(1) SBI Capital 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."
(2) As the proceeds of the sale of the Preferred Securities will be invested in
the Subordinated Debentures, the Company has agreed to pay the Underwriter
$ per Preferred Security, or $ in the aggregate ($ if the over-
allotment option is exercised in full), as compensation for its arranging
the investment therein of such proceeds. See "Underwriting." The Company
has also agreed to pay the expenses of the offering estimated to be $ .
(3) SBI Capital has granted the Underwriter an option exercisable within 30
days from the date of this Prospectus to purchase up to 130,500 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 SBI Capital will
be $25,012,500. See "Underwriting."
-----------------
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 certificates for the Preferred
Securities will be made on or about , 1997.
STIFEL, NICOLAUS & COMPANY
INCORPORATED
May , 1997
<PAGE>
"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 SBI Capital.
State Street Bank and Trust Company is the Property Trustee (as defined
herein) of SBI Capital. SBI Capital 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 July 31, 2027, which date
may be (i) shortened to a date not earlier than July 31, 2002, or (ii)
extended to a date not later than July 31, 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 ("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, at the annual rate of % of the liquidation
amount of $25 per Preferred Security (the "Liquidation Amount"), accruing from
June , 1997, the date of original issuance, and payable quarterly in arrears
on the last day of January, April, July and October of each year, commencing
July 31, 1997 (the "Distributions"). 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. FOLLOWING THE DEFERRAL OF THE PAYMENT OF INTEREST ON THE
SUBORDINATED DEBENTURES, A HOLDER OF PREFERRED SECURITIES THAT DISPOSES OF ITS
PREFERRED SECURITIES (AND CONSEQUENTLY DOES NOT RECEIVE A DISTRIBUTION FROM
SBI CAPITAL FOR THE PERIOD OF INTEREST DEFERRAL PRIOR TO SUCH DISPOSITION)
WILL NEVERTHELESS BE REQUIRED TO INCLUDE ACCRUED BUT UNPAID INTEREST ON THE
SUBORDINATED DEBENTURES THROUGH THE DATE OF DISPOSITION IN INCOME AS ORDINARY
INCOME AND TO ADD SUCH AMOUNT 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 SBI Capital 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 SBI Capital 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 SBI Capital, as described herein. See
"Description of the Guarantee--General." If the Company does not make interest
payments on the Subordinated Debentures held by SBI Capital, SBI Capital will
have insufficient funds to pay Distributions on
2
<PAGE>
the Preferred Securities. The Guarantee does not cover payments of
Distributions when SBI Capital 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.
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 July 31, 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 or Exchange."
The Company has the right at any time to dissolve, wind-up or terminate SBI
Capital, 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 SBI Capital, after satisfaction of
liabilities to creditors of SBI Capital 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 or
Exchange" and "--Liquidation Distribution Upon Termination."
3
<PAGE>
SOUTHWEST BANCORP, INC.
PARENT COMPANY OF
[LOGO OF STILLWATE NATIONAL BANK & TRUST APPEARS HERE]
[MAP OF OKLAHOMA AND VICINITY APPEARS HERE]
Year
Bank Locations Opened
- ---------------- -------
Stillwater 1894
Oklahoma City 1991
Tulsa 1991
----------------
The Company will provide to holders of the Preferred Securities quarterly
reports containing unaudited financial statements, to the extent and in the
form provided to holders of the Company's common stock, and annual reports
containing financial statements audited by the Company's independent auditors.
In addition, the Company will 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.
----------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE PREFERRED
SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
4
<PAGE>
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."
SOUTHWEST BANCORP, INC.
Southwest Bancorp, Inc. (the "Company") is a one-bank holding company
headquartered in Stillwater, Oklahoma, engaged in providing commercial and
consumer banking services through its sole subsidiary, Stillwater National Bank
& Trust Company (the "Bank"). The Company has six full-service banking offices,
two of which are located in each of Stillwater and Tulsa, Oklahoma, and one
each in Oklahoma City and Chickasha, Oklahoma, and one loan production office
in Oklahoma City. Until May 1997, the Bank maintained a second loan production
office in Tulsa. The Company pursues a decentralized community banking strategy
through three regional divisions--the Stillwater Division, the Central Oklahoma
Division (which includes Oklahoma City and Chickasha) and the Tulsa Division--
that offer commercial, consumer and real estate lending services and retail and
commercial deposit products in their market areas. The Stillwater Division of
the Bank serves the Stillwater market as a full-service community bank
emphasizing both commercial and consumer lending. The Central Oklahoma Division
and the Tulsa Division each have followed a more focused marketing strategy,
targeting managers and professionals and Oklahoma-based businesses for lending
and offering more specialized services. Each regional division is managed by a
senior officer with substantial flexibility over credit and pricing decisions.
In addition to the services offered through the regional divisions, the Bank
offers credit card, student and mortgage lending services throughout the State
of Oklahoma.
Over the past five years, the Company has achieved significant growth in
assets. From 1992 through 1996, the Company's loans grew at a 27% compound
annual growth rate, and increased by $31.9 million, or 5%, in the first three
months of 1997. Using the capital raised in the public offering of its Series A
Preferred Stock in 1995, and increased funding from deposit growth, the Company
increased the Bank's loan portfolio by 21% during 1996. The Company's ratio of
nonperforming assets to total loans receivable and other real estate declined
from 2.48% at December 31, 1992 to 1.04% at December 31, 1996. At March 31,
1997, the Company's ratio of nonperforming assets to total loans receivable and
other real estate was 1.11%. The ratio of net loan charge-offs to average loans
receivable has declined from 0.51% in 1992 to 0.31% in 1996, but increased to
an annualized rate of 1.00% for the three months ended March 31, 1997. The
increase in the first quarter of 1997 is largely attributable to the impairment
of a large commercial loan in that quarter. The Company has also had a history
of earnings growth. Net income and net income available to common shareholders
grew at compound annual growth rates of 21% and 14%, respectively, from 1992 to
1996. During this period, the Company's net interest income grew at a 21%
compound annual growth rate. Although net interest income grew by 15% during
the three months ended March 31, 1997 compared to the three months ended March
31, 1996, net income for the three months ended March 31, 1997 was
significantly less than the prior year's period, primarily as a result of a
$2.1 million increase in the provision for loan losses. This increase in the
provision for the first quarter of 1997 was the result of the impairment of a
$1.9 million commercial loan in the first quarter of 1997 and the Company's
regular evaluation of the adequacy of the allowance for loan losses. The
Company's annual return on average common equity has averaged 15.33% over the
five-year period from 1992 through 1996. For the five-year period from 1992 to
1996, the Company's average annual return on average assets was 1.01%. The
annualized return on average equity and the annualized return on average assets
for the three months ended March 31, 1997 were substantially less than for the
prior year's period. Net income, net income available to common shareholders,
and returns on average assets and average common equity are expected to be less
in 1997 than in 1996 as a result of the decline in income for the first quarter
of 1997.
5
<PAGE>
FINANCIAL SUMMARY
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR 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>
Net income.............. $ 460 $ 1,932 $ 7,552 $ 6,092 $ 5,144 $ 4,196 $ 3,545
Earnings per common
share.................. 0.02 0.41 1.59 1.44 1.37 1.44 1.23
Total assets (at period
end)................... 887,809 723,909 829,117 711,135 582,170 434,119 353,938
Total deposits (at
period end)............ 814,537 654,667 753,945 634,387 525,560 394,521 329,162
Common shareholders'
equity................. 47,157 43,894 47,650 42,975 37,888 34,570 21,589
Return on average
assets................. 0.22% 1.08% 0.98% 0.93% 1.01% 1.07% 1.05%
Return on average
shareholders' equity... 2.86% 12.77% 12.15% 12.81% 14.17% 17.76% 17.94%
Return on average common
equity................. 0.53% 14.18% 13.30% 13.48% 14.17% 17.76% 17.94%
</TABLE>
The Bank was founded in Stillwater and is currently in its 103rd year of
operation. The Company began offering loans in Oklahoma City in 1982 and in
Tulsa in 1985 by establishing loan production offices in these markets. The
Company's banking strategy includes the offering of multiple commercial and
consumer services to local businesses and their primary employees as well as to
other managers and professionals living and working in the Company's market
areas. Working within the branching limitations imposed by Oklahoma law, the
Company has developed a marketing strategy that does not rely on an extensive
branch network to deliver financial services to its target markets. The
Company's high customer service philosophy includes offering an array of
financial services, loan officers who often meet at the customer's home or
place of business to close loans and the use of third-party courier services to
collect commercial deposits.
Pursuant to the Company's decentralized approach to banking, the Company's
regional Division Managers, each of whom has significant lending experience,
exercise substantial flexibility in credit and pricing decisions. The Company
has designed and developed management information systems and loan review
policies which senior management uses to review and monitor the origination and
maturation of the loan portfolio. The Company believes this decentralized
management approach, coupled with the continuity of service of its senior
officers and its management information systems, enables the Company to develop
long-term customer relationships, maintain high quality service and respond
quickly to customer needs.
RECENT DEVELOPMENTS
In the first quarter of 1997, the Company received information regarding
events that had affected a borrower's ability to fully repay its commercial
loan, which had a carrying amount of approximately $1.9 million. As a result of
this event, and management's regular evaluation of the adequacy of the
allowance for loan losses relative to other loans in the portfolio, the Company
recorded a provision for loan losses of $3.0 million in the first quarter of
1997. Quarterly provisions for loan losses during 1996 ranged from $675,000 to
$875,000. The Company also charged-off a portion of the referenced loan against
the allowance for loan losses in the first quarter.
In the second quarter of 1997, the Company settled the obligations of the
borrower described above for cash, and recorded an additional, immaterial
charge relating to this loan to the allowance for loan losses. As a result,
this loan has been removed from the loan portfolio and from nonaccrual and
total nonperforming loans.
SBI CAPITAL TRUST
SBI Capital is a statutory business trust formed under Delaware law pursuant
to (i) a trust agreement, dated as of May 8, 1997, executed by the Company, as
depositor, and the trustees of SBI Capital (together with the
6
<PAGE>
Property Trustee, the "Trustees"), and (ii) a certificate of trust filed with
the Secretary of State of the State of Delaware on May 9, 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 SBI
Capital. 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." SBI Capital exists for the exclusive purposes of (i) issuing the
Trust Securities representing undivided beneficial interests in the assets of
SBI Capital, (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 SBI Capital and
payments under the Subordinated Debentures will be the only revenue of SBI
Capital. SBI Capital has a term of 55 years, but may terminate earlier as
provided in the Trust Agreement. The principal executive office of SBI Capital
is 608 South Main Street, Stillwater, Oklahoma 74074 and its telephone number
is (405) 372-2230.
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 SBI Capital 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."
7
<PAGE>
THE OFFERING
Securities Offered........ 870,000 Preferred Securities having a Liquidation
Amount of $25 per Preferred Security. The Preferred
Securities represent preferred undivided beneficial
interests in the assets of SBI Capital, which will
consist solely of the Subordinated Debentures and
payments thereunder. SBI Capital has granted the
Underwriter an option, exercisable within 30 days
after the date of this Prospectus, to purchase up
to an additional 130,500 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 June
, 1997, the date of original issuance of the
Preferred Securities, and will be payable quarterly
in arrears, on January 31, April 30, July 31 and
October 31 of each year, commencing July 31, 1997.
See "Description of the Preferred Securities--
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--Extended Interest
Payment 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
8
<PAGE>
Reserve, the Subordinated Debentures are redeemable
prior to maturity at the option of the Company (i)
on or after July 31, 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 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 or
Exchange."
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 SBI Capital,
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 or
Exchange" 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 SBI
Capital, as described herein. The Company and SBI
Capital 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 SBI Capital 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, SBI Capital will not have
sufficient funds to make Distributions on the
Preferred Securities; in which event, the Guarantee
will not apply to such Distributions until SBI
Capital has sufficient funds available therefor.
See "Description of the Guarantee."
Voting Rights............. The holders of the Preferred Securities 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 will be used by SBI Capital to purchase
Subordinated Debentures from the Company. The net
proceeds to the Company from the sale of the
Subordinated Debentures will be used to increase
capital and for general corporate purposes,
including use in the Bank's lending and investment
activities, and, after September 1, 1998, possible
redemption, in whole or in part, of the Company's
9.20% Redeemable Cumulative Preferred Stock, Series
A (the "Series A Preferred Stock"). 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
"OKSBO".
9
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL DATA(1)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31, YEAR ENDED DECEMBER 31,
---------------------- -----------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- --------- --------- --------- --------- ---------
(DOLLARS IN THOUSANDS EXCEPT SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Operations data
Interest income........ $ 17,851 $ 15,089 $ 64,668 $ 55,000 $ 37,654 $ 29,639 $ 28,049
Interest expense....... 9,259 7,586 32,833 28,544 16,637 12,417 13,043
---------- ---------- --------- --------- --------- --------- ---------
Net interest income.... 8,592 7,503 31,835 26,456 21,017 17,222 15,006
Provision for loan
losses................ 3,001 875 3,100 2,000 1,800 1,400 1,650
---------- ---------- --------- --------- --------- --------- ---------
Net interest income
after provision for
loan losses........... 5,591 6,628 28,735 24,456 19,217 15,822 13,356
Gains on sales of
securities and loans.. 326 570 2,137 1,026 1,450 931 709
Other income........... 1,088 1,032 4,212 3,848 3,671 3,284 3,023
Other expenses......... 6,359 5,219 23,226 19,902 16,440 13,733 11,906
---------- ---------- --------- --------- --------- --------- ---------
Income before taxes.... 646 3,011 11,858 9,428 7,898 6,304 5,182
Taxes on income........ 186 1,079 4,306 3,336 2,754 2,108 1,637
---------- ---------- --------- --------- --------- --------- ---------
Net income............. $ 460 $ 1,932 $ 7,552 $ 6,092 $ 5,144 $ 4,196 $ 3,545
========== ========== ========= ========= ========= ========= =========
Net income available to
common shareholders... $ 63 $ 1,535 $ 5,965 $ 5,426 $ 5,144 $ 4,196 $ 3,545
========== ========== ========= ========= ========= ========= =========
Dividends declared
Preferred stock........ $ 397 $ 397 $ 1,587 $ 533 $ -- $ -- $ --
Common stock........... 301 263 1,053 901 750 444 371
Ratio of total
dividends declared to
net income............ 151.75% 34.15% 34.96% 23.55% 14.60% 10.58% 10.47%
Per share data(2)
Earnings per common
share................. $ 0.02 $ 0.41 $ 1.59 $ 1.44 $ 1.37 $ 1.44 $ 1.23
Common stock cash
dividends declared.... 0.08 0.07 0.28 0.24 0.20 0.14 0.13
Book value per common
share(3).............. 12.52 11.68 12.66 11.44 10.09 9.21 7.47
Weighted average common
shares outstanding.... 3,766,172 3,756,861 3,760,370 3,755,228 3,755,228 2,910,535 2,886,996
Financial condition
data(3)
Investment
securities(4)......... $ 149,684 $ 142,918 $ 147,351 $ 147,688 $ 143,517 $ 83,442 $ 88,823
Loans(5)............... 676,499 537,088 644,646 531,988 412,614 319,260 247,967
Total assets........... 887,809 723,909 829,117 711,135 582,170 434,119 353,938
Total deposits......... 814,537 654,667 753,945 634,387 525,560 394,521 329,162
Total shareholders'
equity................ 64,539 61,276 65,032 60,357 37,888 34,570 21,589
Mortgage servicing
portfolio............. 121,156 126,275 118,953 130,188 143,899 129,648 95,127
Selected ratios
Return on average
assets(6)............. 0.22% 1.08% 0.98% 0.93% 1.01% 1.07% 1.05%
Return on average
shareholders'
equity(6)............. 2.86 12.77 12.15 12.81 14.17 17.76 17.94
Return on average
common equity(6)...... 0.53 14.18 13.30 13.48 14.17 17.76 17.94
Net interest
margin(6)............. 4.23 4.38 4.32 4.23 4.34 4.61 4.69
Efficiency ratio(7).... 63.55 57.32 60.83 63.52 62.90 64.06 63.54
Average assets per
employee.............. $ 2,341 $ 2,373 $ 2,162 $ 2,204 $ 2,089 $ 1,917 $ 1,850
Asset quality ratios
Allowance for loan
losses to loans(3).... 1.25% 1.16% 1.11% 1.09% 1.20% 1.24% 1.37%
Nonperforming loans to
loans(3)(8)........... 1.04 1.03 1.03 0.99 0.60 0.98 2.15
Allowance for loan
losses to
nonperforming
loans(3)(8)........... 120.15 112.98 107.37 110.12 199.16 126.07 63.72
Nonperforming assets to
loans and other real
estate owned(3)(9).... 1.11 1.05 1.04 1.03 0.67 1.13 2.48
Net loan charge-offs to
average loans(6)...... 1.00 0.35 0.31 0.24 0.22 0.30 0.51
Capital ratios
Average total
shareholders' equity
to average assets..... 7.55 8.43 8.05 7.27 7.12 6.01 5.84
Average common equity
to average assets..... 5.55 6.04 5.81 6.15 7.12 6.01 5.84
Tier 1 capital to risk-
weighted
assets(3)(10)......... 9.47 10.15 10.21 10.02 9.64 12.39 10.45
Total capital to risk-
weighted
assets(3)(10)......... 10.78 11.52 11.40 11.41 10.89 13.64 11.71
Leverage ratio(3)(10).. 7.37 8.13 7.77 8.19 6.76 8.04 5.77
Ratio of earnings to
combined fixed charges
and preferred stock
dividends(11)
Including interest on
deposits.............. 1.06x 1.36x 1.33x 1.32x 1.47x 1.50x 1.39x
Excluding interest on
deposits.............. 1.84 5.11 5.16 7.96 25.23 38.30 25.56
</TABLE>
- -------
(1) The summary consolidated financial data set forth above does not purport
to be complete and should be read in conjunction with, and is qualified in
its entirety by, the more detailed information contained in the
consolidated financial statements of the Company and related notes
included herein and the discussion under "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
(2) All share and per share information has been restated to reflect the
fourteen-to-one stock split effected in the form of a stock dividend paid
November 15, 1993.
(3) At period end.
(4) Includes investment securities held for sale.
(5) Net of unearned discounts but before deduction of allowance for loan
losses.
(6) Ratios for the three month periods are annualized.
(7) The efficiency ratio = other expenses/(net interest income + gain on sales
of securities and loans + other income).
(8) Nonperforming loans consist of nonaccrual loans, loans contractually past
due 90 days or more plus loans with restructured terms.
(9) Nonperforming assets consist of nonperforming loans plus foreclosed
assets.
(10) Computed in accordance with regulatory guidelines as in effect currently.
(11) For purposes of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends, earnings consist of income before
taxes plus interest and the portion of rent expense deemed to be interest.
Fixed charges consist of interest and the portion of rent expense deemed
to be interest.
10
<PAGE>
RISK FACTORS
Prospective investors should carefully consider, together with the other
information contained and incorporated by reference in this Prospectus, the
following risk factors in evaluating the Company and its business and SBI
Capital 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 Act
of 1934, as amended (the "Exchange Act"), including statements of goals,
intentions, and expectations, regarding or based upon general economic
conditions, interest rates, developments in national and local markets, and
other matters, and which, by their nature, are subject to significant
uncertainties. Because of these uncertainties and the assumptions on which
statements in this Prospectus are based, the actual future results may differ
materially from those contemplated by such statements. The considerations
listed below represent certain important factors the Company believes could
cause such results to differ. These considerations are not intended to
represent a complete list of the general or specific risks that may affect the
Company and SBI Capital. It should be recognized that other risks may be
significant, presently or in the future, and the risks set forth below may
affect the Company and SBI Capital to a greater extent than indicated.
RISK FACTORS RELATING TO THE PREFERRED SECURITIES
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,
whether now existing or hereafter incurred. At May , 1997, the Company had
no outstanding Senior Debt, Subordinated Debt and Additional Senior
Obligations. Because the Company is a holding company, the right of the
Company to participate in any distribution of assets of the Bank upon the
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 the Bank, except
to the extent that the Company may itself be recognized as a creditor of the
Bank. The Subordinated Debentures, therefore, will be effectively subordinated
to all existing and future liabilities of the Bank 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 SBI Capital 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 SBI
Capital 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, (ii) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any
11
<PAGE>
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 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--Extended Interest Payment Period" and
"Description of the Subordinated Debentures--Option to Extend Interest Payment
Period."
Should an Extended Interest Payment Period occur, each holder of Preferred
Securities will be required to accrue and recognize income (in the form of
original issue discount ("OID")) in respect of its pro rata share of the
interest accruing on the Subordinated Debentures held by SBI Capital for
United States federal income tax purposes. Under such circumstances a holder
of Preferred Securities would be required to 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 SBI Capital
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."
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 and believes the likelihood of its exercising such
right to be remote. Should the Company elect, however, to exercise such right
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 Investment Company Event (whether occurring before
or after July 31, 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 SBI Capital 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) SBI Capital 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) SBI Capital 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
12
<PAGE>
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. See "--Risk Factors Relating to the Preferred
Securities--Proposed Tax Legislation" for a discussion of certain legislative
proposals that, if adopted, could give rise to a Tax Event, which may permit
the Company to cause a redemption of the Preferred Securities prior to July
31, 2002.
"Capital Treatment Event" means the receipt by SBI Capital of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to or any 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
applicable to the Company, provided, however, that the inability of the
Company to treat all or any portion of the Liquidation Amount of the Preferred
Securities as Tier 1 Capital shall not constitute the basis of a Capital
Treatment Event if such inability results from the Company having cumulative
preferred capital in excess of the amount which may qualify for treatment as
Tier 1 Capital under applicable capital adequacy guidelines of the Federal
Reserve.
"Investment Company Event" means the receipt by SBI Capital 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, SBI Capital 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 July 31, 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 SBI Capital is
terminated and the Subordinated Debentures are distributed to holders of the
Preferred Securities) to a date no later than July 31, 2036, the 39th
anniversary of 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, (iii) SBI Capital
is not in arrears on payments of Distributions on the Preferred Securities and
no deferred Distributions are accumulated, and (iv) the Company has a Senior
Debt rating of investment grade. 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 SBI Capital, (i) any accrued and unpaid Distributions
required to be paid on the Preferred Securities, to the extent that SBI
Capital 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 SBI Capital has funds available therefor at
such time, and (iii) upon a voluntary or involuntary dissolution, winding-up
or liquidation of SBI Capital (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 SBI Capital
has funds available therefor at such time, and (b) the amount of assets of SBI
Capital remaining available for distribution to holders of the Preferred
Securities in liquidation of SBI
13
<PAGE>
Capital. 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 SBI Capital, 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, SBI
Capital 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 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 SBI Capital 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 SBI Capital 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 SBI Capital 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 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,
14
<PAGE>
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 1997 Proposed Legislation 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 U.S. 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. There can be no assurance that the effective date
guidance in the 1997 Proposed Legislation will be adopted if the proposed
change to the tax law is enacted, or 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, July
31, 2002. See "Description of the Subordinated Debentures--Redemption or
Exchange" and "Description of the Preferred Securities--Redemption or
Exchange--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."
REDEMPTION; EXCHANGE OF PREFERRED SECURITIES FOR SUBORDINATED DEBENTURES
The Company has the right at any time to dissolve, wind-up or terminate SBI
Capital and cause the Subordinated Debentures to be distributed to the holders
of the Preferred Securities in exchange therefor in liquidation of SBI
Capital. 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
SBI Capital, in which event SBI Capital 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 or
Exchange--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 SBI Capital would not be a
taxable event to holders of the Preferred Securities. If, however, SBI Capital
is characterized as an association taxable as a corporation at the time of the
dissolution of SBI Capital, the distribution of the Subordinated Debentures
may constitute a taxable event to holders of Preferred Securities. Moreover,
upon occurrence of a Tax Event, a dissolution of SBI Capital 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 SBI Capital."
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 SBI Capital. The
Preferred Securities or the Subordinated Debentures, may 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 SBI Capital, 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.
15
<PAGE>
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 SBI Capital for the period
prior to such disposition) will nevertheless be required to include accrued
but unpaid interest on the Subordinated Debentures through the date of
disposition in income as ordinary income and to add such amount 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 but unpaid interest). 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 approve the Preferred Securities 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 Underwriter. 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.
PREFERRED SECURITIES ARE NOT INSURED
The Preferred Securities are not insured by the Bank Insurance Fund (the
"BIF") or the Savings Association Insurance Fund (the "SAIF") of the Federal
Deposit Insurance Corporation (the "FDIC") or by any other governmental
agency.
RISK FACTORS RELATING TO THE COMPANY
CREDIT RISK AND COMMERCIAL LOAN GROWTH
The greatest risk facing lenders generally is credit risk, that is the risk
of losing principal and interest due to a borrower's failure to perform
according to the terms of the loan agreement. The Bank continues to carry a
high percentage of commercial loans in relation to its assets. Commercial and
commercial real estate loans generally entail larger risks than residential
real estate loans or other bank-qualified investments since repayment of such
loans may be affected by the quality of the borrower's management and a number
of economic and other factors which may induce business failure and depreciate
the value of the business assets pledged to secure the loan. The dollar volume
of commercial and commercial real estate loans has increased substantially in
recent years, to $433.2 million at March 31, 1997, from $414.7 million at
December 31, 1996, $341.2 million at December 31, 1995 and $253.1 million at
December 31, 1994, comprising approximately 64.04%, 64.33%, 64.14% and 61.33%
of the Bank's total loan portfolio at such dates, respectively. The Company
believes that commercial and commercial real estate loans may continue to
increase as a percentage of its loan portfolio. Problems with commercial and
commercial real estate loans would not necessarily be expected to surface
early in their lives, and as the recent loans mature, the Company may
experience increased levels of nonperforming loans and charge-offs. In
addition, because the size of loans originated by the Bank, particularly the
commercial and commercial real estate loans, has been increasing, the Bank may
experience larger period-to-period fluctuations in its level of nonperforming
loans as the result of changes in circumstances of individual borrowers on
larger loans. Increases in nonperforming loans would result in a loss of
earnings from these loans during the period of nonperformance and may lead to
loan charge-offs. At any time, there are loans included in the Company's loan
portfolio that will result in losses to the Company, but that have not been
identified as nonperforming or potential problem loans. Because the loan
portfolio contains a significant number of commercial and commercial real
estate loans with relatively large balances, the unexpected deterioration of
one or a few of such loans may cause
16
<PAGE>
a significant increase in nonperforming assets, and lead to a material
increase in charge-offs and the provision for loan losses. Actual future
losses could differ significantly from the amounts estimated by management,
adversely affecting net income. Earnings volatility resulting from
fluctuations in nonperforming asset levels may affect the future trading
prices of the Preferred Securities.
EXPOSURE TO LOCAL ECONOMIC CONDITIONS
Although the Bank makes loans throughout the State of Oklahoma, the
Company's commercial lending operations are concentrated primarily in the
Bank's service areas. Consequently, adverse changes in economic conditions in
those service areas would impair the Company's ability to collect loans and
would otherwise have a negative effect on the financial condition of the
Company. The Company has increased its loans in its Tulsa Division and Central
Oklahoma Division (which includes Oklahoma City) from approximately $202.8
million, or 49% of the total loan portfolio, at December 31, 1994, to
approximately $411.2 million, or 61.2% of the total loan portfolio, at March
31, 1997, and the Company's exposure to the economic conditions in those two
areas has increased accordingly. In addition, although the Oklahoma economy
has diversified from its traditional dependencies on the energy industries and
agriculture, a substantial decline in the price of oil or in agricultural
commodity prices may have an adverse effect on economic conditions in the
Bank's service areas.
LOAN PORTFOLIO CONCENTRATIONS
During the past several years, the Company has followed a business strategy
which has featured the offering of multiple commercial and consumer lending
services to managers and professionals living and working in its primary
market areas. As a result of this lending emphasis, the Company has originated
a substantial amount of loans to individuals and businesses involved in the
healthcare industry including loans to physicians, dentists and other
healthcare professionals, and to hospitals, nursing homes, suppliers and other
healthcare-related businesses. At March 31, 1997, the Company estimates that
approximately $79 million of loans, comprising approximately 12% of the total
loan portfolio, involved loans to individuals and businesses in the healthcare
industry. Other notable concentrations of credit include $23.8 million in
hotel/motel loans, $23.4 million in residential construction loans and $15.8
million in restaurant loans, which represented 4%, 3% and 2% percent,
respectively, of the total loan portfolio at March 31, 1997. These portfolio
concentrations expose the Company to the risk that adverse developments in
these sectors could negatively affect the abilities of these borrowers to
repay their loans.
INTEREST RATE RISK
The Bank's earnings depend to a great extent upon the level of net interest
income, which is the difference between interest income earned on loans and
investments and the interest expense paid on its interest-bearing liabilities,
consisting principally of deposits. Although the Company believes that the
maturities of the Bank's assets are well balanced in relation to maturities of
liabilities (gap management), gap management is not an exact science. Rather,
it involves estimates as to how changes in the general level of interest rates
will affect the yields earned on assets and the rates paid on liabilities.
Moreover, rate changes can vary depending upon the level of rates and
competitive factors. From time to time, maturities of assets and liabilities
are not balanced, and a rapid increase or decrease in interest rates could
have an adverse effect on net interest margins and results of operations of
the Company.
REGULATORY RISK
The banking industry is heavily regulated. These regulations are primarily
intended to protect the federal insurance funds and depositors, not
shareholders. The Bank is subject to regulation and supervision by the Office
of the Comptroller of the Currency ("OCC"), while the Company is subject to
regulation and supervision by the Federal Reserve. The burden imposed by
federal and state regulations puts banks at a competitive disadvantage
compared to less regulated competitors such as finance companies, mortgage
banking companies and leasing companies. The banking industry continues to
lose market share to its competitors. In addition,
17
<PAGE>
legislative reactions to the problems of the thrift industry have added to the
regulatory burden on banks and cause them to incur increased operating
expenses. See "Description of the Preferred Securities--Redemption or
Exchange--Tax Event Redemption, Capital Treatment Event Redemption or
Investment Company Event Redemption."
DIVIDEND RESTRICTIONS
The ability of the Company to pay amounts due on the Subordinated Debentures
is largely dependent on its receipt of dividends from the Bank. The amount of
dividends that the Bank may pay to the Company is limited by various federal
laws and by the regulations promulgated by their respective primary
regulators, which impose certain minimum capital requirements.
USE OF PROCEEDS
The proceeds from the sale of the Preferred Securities will be used by SBI
Capital to purchase the Subordinated Debentures from the Company. The net
proceeds to the Company from the sale of the Subordinated Debentures are
estimated to be $ (or $ if the Underwriter's over-allotment option is
exercised in full) after deducting the Underwriter's compensation and
estimated expenses. The proceeds of the Offering will strengthen the Company's
capital base and position the Bank to continue to remain a "well capitalized"
institution under federal banking regulations, which will allow the Company to
pursue future growth opportunities through expansion of its existing
businesses and possible acquisitions. The Company, however, does not have any
specific plans, arrangements, agreements or understandings with any other
person for any acquisitions at the current time. The Company proposes to use
the net proceeds for general corporate purposes, including use in the Bank's
lending and investment activities, and possible redemption, in whole or in
part, of the Series A Preferred Stock. Unlike interest payments on the
Subordinated Debentures, dividends on the Series A Preferred Stock are not
deductible for federal income tax purposes. Any redemption of the Company's
Series A Preferred Stock, which first becomes redeemable on September 1, 1998,
would reduce the capital base of the Company. Pending such uses, the net
proceeds from the sale of the Subordinated Debentures may be invested in a
variety of interest-bearing assets, including, but not limited to, government
securities, federal funds transactions, interest-bearing deposits in other
banks and similar investments, and securities, issued by other financial
institutions and companies, with terms similar to those of the Preferred
Securities.
MARKET FOR THE PREFERRED SECURITIES
Application has been made to have the Preferred Securities approved for
quotation on the Nasdaq National Market under the symbol "OKSBO". There can be
no assurance that such approval will be obtained. 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, however, that
an active and liquid trading market will develop for the Preferred Securities,
even if approval for listing is obtained, or, if developed, that such a market
will continue. The offering price and distribution rate have been determined
by negotiations between 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
SBI Capital will be treated, for financial reporting purposes, as a
subsidiary of the Company and, accordingly, the accounts of SBI Capital will
be included in the consolidated financial statements of the Company. The
Preferred Securities will be presented as a separate category of long-term
debt in the consolidated statement of financial condition of the Company under
the caption "Guaranteed Preferred Beneficial Interests in the 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.
18
<PAGE>
All future reports of the Company filed under the Exchange Act will (a)
present the Trust Securities issued by SBI Capital on the statement of
financial condition as a separate category of long-term debt entitled
"Guaranteed Preferred Beneficial Interests in the Company's Subordinated
Debentures," (b) include in a footnote to the financial statements disclosure
that the sole assets of SBI Capital are the Subordinated Debentures (including
the outstanding principal amount, interest rate and maturity date of such
Subordinated Debentures), and (c) include in a footnote to the financial
statements disclosure that the Company owns all of the Common Securities of
SBI Capital, the sole assets of SBI Capital 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 SBI Capital under
the Preferred Securities.
19
<PAGE>
CAPITALIZATION
The following table sets forth (i) the consolidated capitalization of the
Company at March 31, 1997 and (ii) the consolidated capitalization of the
Company on an as adjusted basis giving effect to the issuance of the Preferred
Securities offered by SBI Capital hereby and the application by the Company of
the net proceeds therefrom, as if the sale of such securities had been
consummated on March 31, 1997, and assuming the Underwriter's over-allotment
option was not exercised. At March 31, 1997, the Company did not have any
long- term debt.
<TABLE>
<CAPTION>
AT MARCH 31, 1997
-------------------------
AS
ACTUAL ADJUSTED
----------- ------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-Term Debt:
Guaranteed preferred beneficial interests in the
Company's subordinated debentures............... $ -- $ 21,750(1)
Shareholders' Equity:
Serial preferred stock--
Series A, 9.20% Redeemable, Cumulative Preferred
Stock; $1.00 par value; 1,000,000 shares
authorized, liquidation value $17,250; 690,000
shares issued and outstanding................... 690 690
Series B, $1 par value; 1,000,000 shares
authorized; none issued......................... -- --
Common Stock, par value $1.00 per share:
10,000,000 shares authorized; 3,766,515 shares
issued and outstanding.......................... 3,767 3,767
Capital surplus.................................. 24,377 24,377
Retained earnings................................ 35,803 35,803
Unrealized loss on investment securities
available for sale, net of tax.................. (98) (98)
----------- -----------
Total shareholders' equity(2).................. $ 64,539 $ 64,539
=========== ===========
Capital Ratios:
Shareholders' equity to total assets (period
end)............................................ 7.27% 7.10%
Leverage ratio(2)(3)............................. 7.37 7.19
Tier 1 capital to risk-weighted assets(3)........ 9.47 9.47
Total capital to risk-weighted assets(3)......... 10.78 14.02
</TABLE>
- --------
(1) In connection with the issuance of the guaranteed preferred beneficial
interests in the Company's Subordinated Debentures, the Company estimates
it will incur expenses of $1,120,000 (including Underwriter's compensation
of $870,000). The Subordinated Debentures will mature on July 31, 2027,
which date may be, if certain conditions are met, (a) shortened to a date
not earlier than July 31, 2002, or (b) extended to a date not later than
July 31, 2036.
(2) The leverage ratio is Tier 1 capital divided by quarterly average total
assets less intangibles.
(3) The total risk-based capital ratio, as adjusted, is computed including the
total estimated net proceeds from the sale of the Preferred Securities.
Federal Reserve guidelines limit the amount of the Preferred Securities
and cumulative perpetual preferred stock included in Tier 1 capital to an
aggregate of 25% of Tier 1 capital, and accordingly the leverage and Tier
1 capital ratios, as adjusted, are computed excluding the Preferred
Securities and $1,522,000 of Series A Preferred Stock.
The Federal Reserve has allowed cumulative preferred stock meeting certain
criteria and issued by subsidiaries of bank holding companies to be included
as Tier 1 capital for purposes of regulatory capital calculations, up to a
maximum, along with other cumulative preferred stock issued by the bank
holding company, of 25% of Tier 1 capital. The Company believes the Preferred
Securities will meet the Federal Reserve's criteria for inclusion in Tier 1
capital, subject to such 25% limitation.
20
<PAGE>
THE COMPANY
Southwest Bancorp, Inc. (the "Company") is a one-bank holding company
headquartered in Stillwater, Oklahoma, engaged in providing commercial and
consumer banking services through its sole subsidiary, Stillwater National
Bank & Trust Company (the "Bank"). The Company has six full-service banking
offices, two of which are located in each of Stillwater and Tulsa, Oklahoma,
and one each in Oklahoma City and Chickasha, Oklahoma, and one loan production
office in Oklahoma City. Until May 1997, the Bank maintained a second loan
production office in Tulsa. The Company pursues a decentralized community
banking strategy through three regional divisions--the Stillwater Division,
the Central Oklahoma Division (which includes Oklahoma City and Chickasha) and
the Tulsa Division--that offer commercial, consumer and real estate lending
services and retail and commercial deposit products in their market areas. The
Stillwater Division of the Bank serves the Stillwater market as a full-service
community bank emphasizing both commercial and consumer lending. The Central
Oklahoma Division and the Tulsa Division each have followed a more focused
marketing strategy, targeting managers and professionals and Oklahoma-based
businesses for lending and offering more specialized services. Each regional
division is managed by a senior officer with substantial flexibility over
credit and pricing decisions. In addition to the services offered through the
regional divisions, the Bank offers credit card, student and mortgage lending
services throughout the State of Oklahoma. The principal executive offices of
the Company are located at 608 South Main Street, Stillwater, Oklahoma 74074,
and its telephone number is (405) 372-2230.
The Bank was founded in Stillwater and is currently in its 103rd year of
operation. The Company began offering loans in Oklahoma City in 1982 and in
Tulsa in 1985 by establishing loan production offices in these markets. The
Company's banking strategy includes the offering of multiple commercial and
consumer services to local businesses and their primary employees as well as
to other managers and professionals living and working in the Company's market
areas. Working within the branching limitations imposed by Oklahoma law, the
Company has developed a marketing strategy that does not rely on an extensive
branch network to deliver financial services to its target markets. The
Company's high customer service philosophy includes offering an array of
financial services, loan officers who often meet at the customer's home or
place of business to close loans and the use of third-party courier services
to collect commercial deposits.
Pursuant to the Company's decentralized approach to banking, the Company's
regional Division Managers, each of whom has significant lending experience,
exercise substantial flexibility in credit and pricing decisions. The Company
has designed and developed management information systems and loan review
policies which senior management uses to review and monitor the origination
and maturation of the loan portfolio. The Company believes this decentralized
management approach, coupled with the continuity of service of its senior
officers and its management information systems, enables the Company to
develop long-term customer relationships, maintain high quality service and
respond quickly to customer needs.
The Company offers a wide variety of commercial and consumer lending and
deposit services. The commercial loans offered by the Company include (i)
commercial real estate loans, (ii) working capital and other commercial loans,
(iii) construction loans, and (iv) Small Business Administration ("SBA")
guaranteed loans. Consumer lending services include (i) government-guaranteed
student loans, (ii) residential real estate loans and mortgage banking
services, (iii) credit card loans, and (iv) personal lines of credit and other
installment loans. The Company also offers deposit and personal banking
services, including (i) commercial deposit services such as lock-box services,
commercial checking and other deposit accounts and merchant credit card
services, (ii) retail deposit services such as certificates of deposit, money
market accounts, checking accounts, NOW accounts, savings accounts and
Automatic Teller Machine ("ATM") access, and (iii) personal brokerage and
trust services.
Additional financial and other information regarding the Company and the
Bank and their respective businesses is presented herein under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," in the Company's consolidated financial statements included
herein, and in the documents incorporated by reference herein. Prospective
investors are urged to carefully consider all of the information contained in,
and incorporated by reference in, this Prospectus.
21
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data for the five years ended December
31, 1996 set forth below are derived from the audited consolidated financial
statements of the Company. The data for the three month periods ended March
31, 1996 and 1997 have been derived from unaudited interim financial
statements and include, in the opinion of management, all adjustments
(consisting of only normal recurring adjustments) necessary to present fairly
the data for such period. The results of operations for the three month
periods ended March 31, 1997 and 1996 are not necessarily indicative of
results which may be expected for any other interim period or for the full
year. The selected consolidated financial data set forth below does not
purport to be complete and should be read in conjunction with, and is
qualified in its entirety by, the more detailed information contained in the
consolidated financial statements of the Company and related notes included
herein and the discussion under "Management's Discussion and Analysis of
Financial Condition and Results of Operations." See "Prospectus Summary--
Recent Developments."
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31, YEAR ENDED DECEMBER 31,
---------------------- -----------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- --------- --------- --------- --------- ---------
(DOLLARS IN THOUSANDS EXCEPT SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Operations data
Interest income........ $ 17,851 $ 15,089 $ 64,668 $ 55,000 $ 37,654 $ 29,639 $ 28,049
Interest expense....... 9,259 7,586 32,833 28,544 16,637 12,417 13,043
---------- ---------- --------- --------- --------- --------- ---------
Net interest income.... 8,592 7,503 31,835 26,456 21,017 17,222 15,006
Provision for loan
losses................ 3,001 875 3,100 2,000 1,800 1,400 1,650
---------- ---------- --------- --------- --------- --------- ---------
Net interest income
after provision for
loan losses........... 5,591 6,628 28,735 24,456 19,217 15,822 13,356
Gains on sales of
securities and loans.. 326 570 2,137 1,026 1,450 931 709
Other income........... 1,088 1,032 4,212 3,848 3,671 3,284 3,023
Other expenses......... 6,359 5,219 23,226 19,902 16,440 13,733 11,906
---------- ---------- --------- --------- --------- --------- ---------
Income before taxes.... 646 3,011 11,858 9,428 7,898 6,304 5,182
Taxes on income........ 186 1,079 4,306 3,336 2,754 2,108 1,637
---------- ---------- --------- --------- --------- --------- ---------
Net income............. $ 460 $ 1,932 $ 7,552 $ 6,092 $ 5,144 $ 4,196 $ 3,545
========== ========== ========= ========= ========= ========= =========
Net income available to
common shareholders... $ 63 $ 1,535 $ 5,965 $ 5,426 $ 5,144 $ 4,196 $ 3,545
========== ========== ========= ========= ========= ========= =========
Dividends declared
Preferred stock........ $ 397 $ 397 $ 1,587 $ 533 $ -- $ -- $ --
Common stock........... 301 263 1,053 901 750 444 371
Ratio of total
dividends declared to
net income............ 151.75% 34.15% 34.96% 23.55% 14.60% 10.58% 10.47%
Per share data(1)
Earnings per common
share................. $ 0.02 $ 0.41 $ 1.59 $ 1.44 $ 1.37 $ 1.44 $ 1.23
Common stock cash
dividends declared.... 0.08 0.07 0.28 0.24 0.20 0.14 0.13
Book value per common
share(2).............. 12.52 11.68 12.66 11.44 10.09 9.21 7.47
Weighted average common
shares outstanding.... 3,766,172 3,756,861 3,760,370 3,755,228 3,755,228 2,910,535 2,886,996
Financial condition
data(2)
Investment
securities(3)......... $ 149,684 $ 142,918 $ 147,351 $ 147,688 $ 143,517 $ 83,442 $ 88,823
Loans(4)............... 676,499 537,088 644,646 531,988 412,614 319,260 247,967
Total assets........... 887,809 723,909 829,117 711,135 582,170 434,119 353,938
Total deposits......... 814,537 654,667 753,945 634,387 525,560 394,521 329,162
Total shareholders'
equity................ 64,539 61,276 65,032 60,357 37,888 34,570 21,589
Mortgage servicing
portfolio............. 121,156 126,275 118,953 130,188 143,899 129,648 95,127
Selected ratios
Return on average
assets(5)............. 0.22% 1.08% 0.98% 0.93% 1.01% 1.07% 1.05%
Return on average
shareholders'
equity(5)............. 2.86 12.77 12.15 12.81 14.17 17.76 17.94
Return on average
common equity(5)...... 0.53 14.18 13.30 13.48 14.17 17.76 17.94
Net interest
margin(5)............. 4.23 4.38 4.32 4.23 4.34 4.61 4.69
Efficiency ratio(6).... 63.55 57.32 60.83 63.52 62.90 64.06 63.54
Average assets per
employee.............. $ 2,341 $ 2,373 $ 2,162 $ 2,204 $ 2,089 $ 1,917 $ 1,850
Asset quality ratios
Allowance for loan
losses to loans(2).... 1.25% 1.16% 1.11% 1.09% 1.20% 1.24% 1.37%
Nonperforming loans to
loans(2)(7)........... 1.04 1.03 1.03 0.99 0.60 0.98 2.15
Allowance for loan
losses to
nonperforming
loans(2)(7)........... 120.15 112.98 107.37 110.12 199.16 126.07 63.72
Nonperforming assets to
loans and other real
estate owned(2)(8).... 1.11 1.05 1.04 1.03 0.67 1.13 2.48
Net loan charge-offs to
average loans(5)...... 1.00 0.35 0.31 0.24 0.22 0.30 0.51
Capital ratios
Average total
shareholders' equity
to average assets..... 7.55 8.43 8.05 7.27 7.12 6.01 5.84
Average common equity
to average assets..... 5.55 6.04 5.81 6.15 7.12 6.01 5.84
Tier 1 capital to risk-
weighted
assets(2)(9).......... 9.47 10.15 10.21 10.02 9.64 12.39 10.45
Total capital to risk-
weighted
assets(2)(9).......... 10.78 11.52 11.40 11.41 10.89 13.64 11.71
Leverage ratio(2)(9)... 7.37 8.13 7.77 8.19 6.76 8.04 5.77
Ratio of earnings to
combined fixed charges
and preferred stock
dividends(10)
Including interest on
deposits.............. 1.06x 1.36x 1.33x 1.32x 1.47x 1.50x 1.39x
Excluding interest on
deposits.............. 1.84 5.11 5.16 7.96 25.23 38.30 25.56
</TABLE>
(Footnotes appear on the following page)
22
<PAGE>
(Footnotes from prior page)
(1) All share and per share information has been restated to reflect the
fourteen-to-one stock split effected in the form of a stock dividend paid
November 15, 1993.
(2) At period end.
(3) Includes investment securities held for sale.
(4) Net of unearned discounts but before deduction of allowance for loan
losses.
(5) Ratios for the three month periods are annualized.
(6) The efficiency ratio = other expenses/(net interest income + gain on
sales of securities and loans + other income).
(7) Nonperforming loans consist of nonaccrual loans, loans contractually past
due 90 days or more plus loans with restructured terms.
(8) Nonperforming assets consist of nonperforming loans plus foreclosed
assets.
(9) Computed in accordance with regulatory guidelines as in effect currently.
(10) For purposes of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends, earnings consist of income before
taxes plus interest and the portion of rent expense deemed to be
interest. Fixed charges consist of interest and the portion of rent
expense deemed to be interest.
23
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITIONAND RESULTS OF
OPERATIONS
Forward Looking Statements. Portions of this Management's Discussion and
Analysis contain forward-looking statements, including statements of goals,
intentions, and expectations, regarding or based upon general economic
conditions, interest rates, developments in national and local markets, and
other matters, and which, by their nature, are subject to significant
uncertainties. Because of these uncertainties and the assumptions on which
statements in this Prospectus are based, the actual future results may differ
materially from those indicated in this report. Past results also are not
necessarily indicative of future performance.
The following presents management's discussion and analysis of the Company's
consolidated financial condition and results of operations at the dates and
for the periods indicated. This discussion should be read in conjunction with
"Selected Consolidated Financial Data," the Company's consolidated financial
statements and the accompanying notes, and other financial data appearing
elsewhere in this Prospectus.
GENERAL
Over the past five years, the Company has achieved significant growth in
assets. From 1992 through 1996, the Company's loans grew at a 27% compound
annual growth rate, and increased by $31.9 million, or 5%, in the first three
months of 1997. Using the capital raised in the public offering of its Series
A Preferred Stock in 1995, and increased funding from deposit growth, the
Company increased the Bank's loan portfolio by 21% during 1996. The Company's
ratio of nonperforming assets to total loans receivable and other real estate
declined from 2.48% at December 31, 1992 to 1.04% at December 31, 1996. At
March 31, 1997, the Company's ratio of nonperforming assets to total loans
receivable and other real estate was 1.11%. The ratio of net loan charge-offs
to average loans receivable has declined from 0.51% in 1992 to 0.31% in 1996,
but increased to an annualized rate of 1.00% for the three months ended March
31, 1997. The increase in the first quarter of 1997 is largely attributable to
the impairment of a large commercial loan in that quarter. See "Nonperforming
Loans" and "Allowance for Loan Losses."
The Company has also had a history of earnings growth. Net income and net
income available to common shareholders grew at compound annual growth rates
of 21% and 14%, respectively, from 1992 to 1996. During this period, the
Company's net interest income grew at a 21% compound annual growth rate.
Although net interest income grew by 15% during the three months ended March
31, 1997 compared to the three months ended March 31, 1996, net income for the
three months ended March 31, 1997 was significantly less than the prior year's
period, primarily as a result of a $2.1 million increase in the provision for
loan losses. This increase in the provision for the first quarter of 1997 was
the result of the impairment of a $1.9 million commercial loan in the first
quarter of 1997 and the Company's regular evaluation of the adequacy of the
allowance for loan losses. The Company's annual return on average common
equity has averaged 15.33% over the five-year period from 1992 through 1996.
For the five-year period from 1992 to 1996, the Company's average annual
return on average assets was 1.01%. The annualized return on average equity
and the annualized return on average assets for the three months ended March
31, 1997 were substantially less than for the prior year's period. Net income,
net income available to common shareholders, and returns on average assets and
average common equity are expected to be less in 1997 than in 1996 as a result
of the decline in income for the first quarter of 1997. See "Summary of
Earnings."
The Company's growth over the past five years reflects growth in the
Oklahoma economy and has been aided by the consolidation in the Oklahoma
banking industry which has disrupted long-standing lending relationships and
resulted in fewer independent Oklahoma banks addressing the Bank's target
market niches of Oklahoma-based businesses and professionals. The
consolidation within the Oklahoma banking industry has particularly aided the
Bank's expansion in the metropolitan areas of Oklahoma City and Tulsa where
the Company has been able to attract experienced lending officers. The
Company's future loan growth is subject to a variety of economic and
competitive considerations and no assurance can be given that the Company's
loan portfolio will continue to grow consistently at historic rates.
24
<PAGE>
The Company's net interest income and net interest margin have benefited
from a high ratio of loans to deposits. Management's funding philosophy has
been to increase deposits from retail and commercial deposit sources as
necessary to fund loans within the limitations of the Bank's capital base. The
Company has operated for the past five years with average loan-to-deposit
ratios ranging from 73% to 83%, and had an average loan to deposit ratio of
85% for the first quarter of 1997. Although a high loan-to-deposit ratio
potentially limits the liquidity available to the institution, the Company has
available sources of liquidity it believes adequate to meet its requirements.
See "Liquidity."
SUMMARY OF EARNINGS
Net Income
Three months ended March 31, 1997 and 1996. For the first quarter of 1997,
the Company recorded net income of $460,000, 76% less than the $1.9 million
recorded for the first quarter of 1996. Net income available to common
shareholders, after deduction of dividends on preferred stock, was $63,000
($0.02 per share), compared with $1.5 million ($0.41 per share) for the first
quarter of 1996. The substantial decrease in quarterly earnings was primarily
the result of a $2.1 million increase in the provision for loan losses.
Average common shares outstanding were 3,766,172 and 3,756,861, respectively.
During the first quarter of 1997, the Company received information regarding
events that adversely affected a borrower's ability to fully repay its
commercial loan, which had a carrying amount of $1.9 million. As a result of
this event, and management's regular evaluation of the adequacy of the
allowance for loan losses relative to other loans in the portfolio, the
Company recorded a provision for loan losses of $3.0 million for the first
quarter of 1997, compared with a provision of $875,000 for the first quarter
of 1996. See "Provision for Loan Losses."
Net interest income increased $1.1 million, or 15%, for the first quarter of
1997 compared to the same period in 1996. This increase in net interest
income, as well as an $893,000, or 83%, reduction in taxes, offset the $2.1
million, or 243%, increase in provision for loan losses, a $1.1 million, or
22%, increase in other expenses and a $188,000, or 12% reduction in other
income. For the first quarter of 1997, the return on average total equity was
2.86% and the return on average common equity was 0.53% compared to a 12.77%
return on average total equity and a 14.18% return on average common equity
for the first quarter of 1996.
Years ended December 31, 1996 and 1995. Net income for 1996 was $7.6
million, a 24% increase over the $6.1 million earned in 1995. The increase in
net income during 1996 was due principally to a $5.4 million, or 20%, increase
in net interest income. Net income for 1996 also benefited from a $1.5
million, or 30% increase in other income. These increases in income offset a
$3.3 million, or 17%, increase in other expenses, a $1.1 million, or 55%,
increase in the provision for loan losses, and a $970,000, or 29%, increase in
taxes on income. Net income available to common shareholders, after dividends
on the Series A Preferred Stock, was $6.0 million, an increase of $539,000, or
10%, over 1995. Net income per common share also increased by 10% to $1.59 per
share for 1996 from $1.44 per share for 1995. Average common shares
outstanding were 3,760,370 and 3,755,228 for 1996 and 1995, respectively.
Years ended December 31, 1995 and 1994. Net income for 1995 was $6.1
million, an 18% increase over the $5.1 million earned in 1994. The principal
contributor to the Company's increase in net income during 1995 was a $5.4
million, or 26%, increase in net interest income. This increase in income was
offset by a $3.5 million, or 21%, increase in other expenses, a $582,000, or
21%, increase in taxes on income, a $247,000, or 5%, decrease in other income,
and a $200,000, or 11%, increase in the provision for loan losses. Net income
available to common shareholders, after dividends on the Series A Preferred
Stock, was $5.4 million, an increase of $282,000, or 5.5%, over 1994. Net
income per common share increased by 5% in 1995 to $1.44 from $1.37 per share
for 1994. Average common shares outstanding were the same for both periods.
Net Interest Income
Three months ended March 31, 1997 and 1996. Net interest income increased to
$8.6 million for the first quarter of 1997 from $7.5 million for the same
period in 1996 as continued growth in the loan portfolio enabled
25
<PAGE>
the Company to post a $2.8 million increase in interest income that exceeded
the $1.7 million increase in interest expense during the period. Yields on the
Company's interest-earning assets declined by 1 basis point, and the rates
paid on the Company's interest-bearing liabilities increased by 1 basis point,
resulting in a reduction in the interest rate spread to 3.48% for the first
quarter of 1997 from 3.50% for the first quarter of 1996. The ratio of average
interest-earning assets to average interest-bearing liabilities declined to
116.46% for the first quarter of 1997 from 119.78% for the first quarter of
1996, as a substantial portion of the increase in loans was funded by time
deposits.
Total interest income for the first quarter of 1997 was $17.9 million, up
18% from $15.1 million during the same period in 1996. The principal factor
providing greater interest income was the $128.8 million, or 24%, increase in
the volume of average loans outstanding. The Company's loan yields declined to
9.40% for the first quarter of 1997 from 9.55% in 1996. During the same
period, the Company's yield on investment securities increased to 6.19% from
6.12%.
Total interest expense for the first quarter of 1997 was $9.3 million, an
increase of 22% from $7.6 million for the same period in 1996. The increase in
total interest expense can be attributed to an increase in average interest-
bearing liabilities of $131.3 million, or 23%. During the same period, the
rates paid on average interest-bearing liabilities increased to 5.31% from
5.30%, as a 15 basis point decline in the average rate paid on time deposits
(to 5.71%) was more than offset by a 64 basis point increase (to 4.14%) in the
average rate paid on money market accounts.
Years ended December 31, 1996 and 1995. Net interest income for 1996
increased to $31.8 million from $26.5 million in 1995, primarily as a result
of the increase in the Company's loan portfolio. Yields on the Company's
interest-earning assets declined by only 2 basis points during 1996, and the
rates paid on the Company's interest-bearing liabilities declined by 10 basis
points, resulting in an increase in the interest rate spread to 3.51% for 1996
from 3.43% for 1995. Net interest income benefited from an increase in the
ratio of average interest-earning assets to average interest-bearing
liabilities to 118.30% for 1996 from 117.55% for 1995. The improvement in this
ratio reflects an increase in noninterest-bearing demand deposits, as well as
an increase in the Company's average shareholders' equity from the sale of
Series A Preferred Stock in July 1995 and retention of earnings.
Interest income for 1996 was $64.7 million, up from $55.0 million in 1995,
primarily as a result of growth in interest-earning assets, which offset the
slight decline in yields. Yields on total interest-earning assets were 8.78%
in 1996 and 8.80% in 1995. Loan interest and fee income increased $9.6 million
because the greater volume of loans outstanding more than offset the effect of
the 14 basis point decline in loan yields. The Company generated growth of
$107.5 million in average loans to $580.6 million in 1996 from $473.1 million
in 1995, a 23% increase. Interest income on investment securities increased by
$186,000 despite lower yields earned, due to an increase in the size of the
investment portfolio. The yield on the investment portfolio declined 8 basis
points. A decrease in interest income on federal funds sold and other short-
term investments was caused by slightly lower volumes in those areas. The
increase in interest-earning assets was funded by growth in deposits at the
Company's existing branches, the proceeds from the July 1995 offering and
retention of earnings.
Total interest expense for 1996 was $32.8 million, a $4.3 million increase
from $28.5 million in 1995. The increase in interest expense was primarily due
to a $93.5 million, or 18%, increase in average interest-bearing deposits from
$527.4 million for the year ended December 31, 1995 to $620.9 million for the
year ended December 31, 1996. Growth in average time deposits of $85.7
million, or 21%, accounted for most of the increase in average interest-
bearing deposits, although average NOW and money market accounts also
increased. Use of federal funds declined significantly for the year. Rates
paid on interest-bearing liabilities declined to 5.27% in 1996 from 5.37% in
1995.
Years ended December 31, 1995 and 1994. Net interest income increased to
$26.5 million for 1995 from $21.0 million in 1994 as continued growth in the
loan portfolio enabled the Company to post a $17.3 million increase in
interest income that significantly exceeded the $11.9 million increase in
interest expense during the year. Competitive factors and the Bank's use of
time deposits to fund loan growth, however, continued to put pressure on the
Company's net interest margin, which declined to 4.23% for fiscal 1995
compared to 4.34% for
26
<PAGE>
1994. Yields on the Company's interest-earning assets increased by 102 basis
points during 1995, and the rates paid on the Company's interest-bearing
liabilities increased by 131 basis points, resulting in a reduction in the
interest rate spread to 3.43% for fiscal 1995 from 3.72% for 1994. The Company
attributed the narrowing of the spread to the significant increases in time
deposits during recent periods. The Bank funded its growth in interest-
earning assets with a higher percentage of time deposits, on which it paid
higher interest rates than transaction accounts and for which it encountered
greater competition. The Company's net interest margin was also adversely
affected by a decline in the excess of earning assets over interest-bearing
liabilities as the Company's asset growth continued to outstrip the growth in
funding from noninterest-bearing sources, notwithstanding the substantial
increase in shareholders' equity from the sale of Preferred Stock completed in
July 1995. The ratio of average interest-earning assets to average interest-
bearing liabilities declined to 117.55% for 1995 from 118.05% for 1994.
Total interest income for 1995 was $55.0 million, up 46% from $37.7 million
during the same period in 1994. The principal factors providing greater
interest income were the $116.8 million, or 33%, increase in the volume of
average loans outstanding and the increase in yields earned on loans and
investment securities. The Company's loan yields increased to 9.64% for 1995
from 8.44% in 1994. At the same time, the Company's yield on investment
securities increased to 6.20% from 6.01%.
Total interest expense for 1995 was $28.5 million, an increase of 72% from
$16.6 million for 1994, due to an increase in average interest-bearing
liabilities of $122.0 million, or 30%, and an increase in rates paid on
average interest-bearing liabilities to 5.37% from 4.06%. The increase in
rates on interest-bearing liabilities resulted from the increasing rate
environment and the Company's increased use of time deposits. As a percentage
of average total deposits, average time deposits increased to 70% for 1995
compared to 66% for 1994. The increase in the Bank's time deposits has
generally involved deposits with maturities of six months to one year.
CHANGES IN INTEREST INCOME AND EXPENSE/VOLUME AND RATE VARIANCES
The following table indicates the changes in interest income and interest
expense that are attributable to changes in average volume and average rates,
in comparison with the same period in the preceding year. The change in
interest due to the combined rate-volume variance has been allocated to rate
and volume changes in proportion to the absolute dollar amounts of the changes
in each.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------------- -------------------------------------------------
1997 VS. 1996 1996 VS. 1995 1995 VS. 1994
INCREASE (DECREASE) ATTRIBUTABLE TO CHANGE IN:
-------------------------------------------------------------------------
YIELD/ NET YIELD/ NET YIELD/ NET
VOLUME RATE CHANGE VOLUME RATE CHANGE VOLUME RATE CHANGE
------ ------ ------ ------- ------ ------ ------- ------ -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Interest earned on:
Loans receivable(1).... $2,860 $(176) $2,684 $10,201 $(615) $9,586 $10,851 $4,650 $15,501
Investment
securities............ 54 17 71 243 (57) 186 1,178 264 1,442
Federal funds sold..... 7 -- 7 (46) (58) (104) 266 137 403
------ ----- ------ ------- ----- ------ ------- ------ -------
Total interest
income.............. 2,921 (159) 2,762 10,398 (730) 9,668 12,295 5,051 17,346
------ ----- ------ ------- ----- ------ ------- ------ -------
Interest paid on:
NOW accounts........... 8 (2) 6 90 (16) 74 (52) 14 (38)
Money market
accounts.............. 117 129 246 332 (364) (32) 399 521 920
Savings accounts....... (5) -- (5) (22) 3 (19) (47) (7) (54)
Time deposits.......... 1,572 (158) 1,414 4,916 (477) 4,439 5,950 4,972 10,922
Federal funds
purchased and other
short-term
borrowings............ 12 -- 12 (143) (30) (173) 92 65 157
------ ----- ------ ------- ----- ------ ------- ------ -------
Total interest
expense............. 1,704 (31) 1,673 5,173 (884) 4,289 6,342 5,565 11,907
------ ----- ------ ------- ----- ------ ------- ------ -------
Net interest income.. $1,217 $(128) $1,089 $ 5,225 $ 154 $5,379 $ 5,953 $ (514) $ 5,439
====== ===== ====== ======= ===== ====== ======= ====== =======
</TABLE>
- --------
(1) Average balance includes nonaccrual loans. Fees included in interest
income on loans receivable are not considered material to any period
presented. Interest on tax-exempt loans and securities is not presented
on a tax-equivalent basis because such amounts are not considered
material.
27
<PAGE>
COMPARISON OF CONSOLIDATED AVERAGE BALANCE SHEETS, INTEREST, YIELDS AND RATES
The following table provides certain information relating to the Company's
average consolidated statements of financial condition and reflects the
interest income on interest-earning assets and interest expense of interest-
bearing liabilities for the periods indicated and the average yields earned
and rates paid for the periods indicated. These yields and costs are derived
by dividing income or expense by the average daily balance of the related
assets or liabilities, respectively, for the periods presented. Non-accrual
loans have been included in the average balances of loans receivable.
AVERAGE BALANCES
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
---------------------------------------------------
1997 1996
------------------------- -------------------------
INTEREST INTEREST
AVERAGE INCOME/ YIELD/ AVERAGE INCOME/ YIELD/
BALANCE EXPENSE RATE BALANCE EXPENSE RATE
-------- -------- ------ -------- -------- ------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Interest-earning assets:
Loans receivable.......... $669,424 $15,516 9.40% $540,627 $12,832 9.55%
Investment securities..... 147,750 2,254 6.19 143,367 2,183 6.12
Federal funds sold........ 6,144 81 5.35 5,528 74 5.38
-------- ------- ---- -------- ------- ----
Total Interest-Earning
Assets................... 823,318 17,851 8.79 689,522 15,089 8.80
-------- ------- ---- -------- ------- ----
Noninterest-earning assets:
Other assets.............. 40,566 31,953
-------- --------
Total Assets.............. $863,884 $721,475
======== ========
LIABILITIES AND
SHAREHOLDERS' EQUITY
Interest-bearing
liabilities:
NOW accounts.............. $ 36,658 $ 209 2.31% $ 34,912 $ 203 2.34%
Money market accounts..... 89,994 919 4.14 77,229 673 3.50
Savings accounts.......... 4,058 25 2.50 4,828 30 2.50
Time deposits............. 571,205 8,036 5.71 454,560 6,622 5.86
-------- ------- ---- -------- ------- ----
Total Interest-Bearing
Deposits................. 701,915 9,189 5.31 571,529 7,528 5.30
Federal funds purchased
and other short-term
borrowings............... 5,048 70 5.62 4,140 58 5.63
-------- ------- ---- -------- ------- ----
Total Interest-Bearing
Liabilities.............. 706,963 9,259 5.31 575,669 7,586 5.30
-------- ------- ---- -------- ------- ----
Noninterest-bearing
liabilities:
Demand deposits........... 84,829 78,625
Other liabilities......... 6,877 6,351
Shareholders' equity...... 65,215 60,830
-------- --------
Total Liabilities and
Shareholders' Equity..... $863,884 $721,475
======== ========
Net interest income........ $ 8,592 $ 7,503
======= =======
Interest rate spread....... 3.48% 3.50%
==== ====
Net interest margin........ 4.23% 4.38%
==== ====
Ratio of average interest-
earning assets to average
interest-bearing
liabilities............... 116.46% 119.78%
======== ========
</TABLE>
28
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------------------------------
1996 1995 1994
------------------------- ------------------------- -------------------------
INTEREST INTEREST INTEREST
AVERAGE INCOME/ YIELD/ AVERAGE INCOME/ YIELD/ AVERAGE INCOME/ YIELD/
BALANCE EXPENSE RATE BALANCE EXPENSE RATE BALANCE EXPENSE RATE
-------- -------- ------ -------- -------- ------ -------- -------- ------
(DOLLARS IN THOUSANDS)
<C> <C> <C> <C> <C> <C> <C> <C> <C> <S>
$580,590 $55,177 9.50% $473,080 $45,591 9.64% $356,323 $30,090 8.44%
146,993 8,999 6.12 142,202 8,813 6.20 122,649 7,371 6.01
9,200 492 5.35 10,007 596 5.96 4,945 193 3.90
-------- ------- ---- -------- ------- ---- -------- ------- ----
736,783 64,668 8.78 625,289 55,000 8.80 483,917 37,654 7.78
-------- ------- ---- -------- ------- ---- -------- ------- ----
34,999 29,197 25,819
-------- -------- --------
$771,782 $654,486 $509,736
======== ======== ========
$ 36,088 $ 838 2.32% $ 32,261 $ 764 2.37% $ 34,385 $ 802 2.33%
81,939 3,129 3.82 77,147 3,161 4.10 66,245 2,241 3.38
4,580 114 2.49 5,441 133 2.44 7,378 187 2.53
498,283 28,647 5.75 412,570 24,208 5.87 299,095 13,286 4.44
-------- ------- ---- -------- ------- ---- -------- ------- ----
620,890 32,728 5.27 527,419 28,266 5.36 407,103 16,516 4.06
1,940 105 5.41 4,527 278 6.14 2,823 121 4.29
-------- ------- ---- -------- ------- ---- -------- ------- ----
622,830 32,833 5.27 531,946 28,544 5.37 409,926 16,637 4.06
-------- ------- ---- -------- ------- ---- -------- ------- ----
79,739 68,540 56,175
7,066 6,437 7,338
62,147 47,563 36,297
-------- -------- --------
$771,782 $654,486 $509,736
======== ======== ========
$31,835 $26,456 $21,017
======= ======= =======
3.51% 3.43% 3.72%
==== ==== ====
4.32% 4.23% 4.34%
==== ==== ====
118.30% 117.55% 118.05%
======== ======== ========
</TABLE>
PROVISION FOR LOAN LOSSES
The Company makes provisions for loan losses in amounts deemed necessary to
maintain the allowance for loan losses at an appropriate level. The adequacy
of the allowance for loan losses is determined by management based upon a
number of factors including, among others, analytical reviews of loan loss
experience in relationship to outstanding loans and commitments; unfunded loan
commitments; problem and nonperforming loans and other loans presenting credit
concerns; trends in loan growth, portfolio composition and quality; use of
appraisals to estimate the value of collateral; and management's judgment with
respect to current and expected
29
<PAGE>
economic conditions and their impact on the existing loan portfolio. Changes
in the allowance may occur because of changing economic conditions, and
economic prospects or the financial position of borrowers. Based upon its
review, management established an allowance of $8.5 million, or 1.25% of total
loans, at March 31, 1997, compared to an allowance of $7.1 million, or 1.11%
of total loans, at December 31, 1996, and an allowance of $5.8 million, or
1.09% of total loans, at December 31, 1995. During fiscal years 1996, 1995 and
1994, the provisions for loan losses were $3.1 million, $2.0 million and $1.8
million, respectively. During the first quarter of 1997, the Company received
information regarding events that adversely affected a borrower's ability to
fully repay its commercial loan, which had a carrying amount of $1.9 million.
As a result of this event, and management's regular evaluation of the adequacy
of the allowance for loan losses relative to other loans in the portfolio, the
Company recorded a provision for loan losses of $3.0 million for the first
quarter of 1997, compared with a provision of $875,000 for the first quarter
of 1996. See "Net Income" and "Financial Condition, Capital Resources and
Liquidity--Allowance for Loan Losses."
OTHER INCOME
The following table sets forth the Company's other income for the periods
indicated.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31, YEAR ENDED DECEMBER 31,
--------------- ------------------------
1997 1996 1996 1995 1994
------- ------- ------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Service charges and fees............ $ 752 $ 708 $ 2,985 $ 2,574 $ 2,440
Credit cards........................ 193 207 869 901 903
Other noninterest income............ 143 117 358 373 328
Gain on sales of loans receivable... 326 448 1,678 1,034 1,453
Gain/(loss) on sale of investment
securities......................... -- 122 459 (8) (3)
------- ------- ------- ------- -------
Total other income................ $ 1,414 $ 1,602 $ 6,349 $ 4,874 $ 5,121
======= ======= ======= ======= =======
</TABLE>
The Company has sought to develop sources of noninterest income through
credit card lending, student lending and mortgage banking, in addition to
traditional deposit and loan service charges and fees.
Three months ended March 31, 1997 and 1996. Other income declined by
$188,000 for the first quarter of 1997 compared to the first quarter of 1996
primarily as a result of a $122,000 decrease in gain on sales of loans
receivable and a $122,000 reduction in gain on sales of investment securities.
The decrease in the gain on sales of loans receivable in the first quarter of
1997 was primarily the result of lower sales of guaranteed student loans. A
gain on sale of investment securities occurred during the first quarter of
1996 when $4.6 million in Agency securities classified as "held to maturity"
and $7.7 million in Agency securities classified as "available for sale,"
originally purchased at a discount, were called prior to their stated maturity
date. No securities were sold or called during the first three months of 1997.
Years ended December 31, 1996 and 1995. Total other income increased by $1.5
million for fiscal year 1996 compared to 1995 primarily due to increased gains
on sales of student loans and residential mortgage loans, increased gains on
sales of investment securities and increased service charges attributable to
its higher deposit base. During 1996, the Company sold $46.7 million in
student loans compared to $40.2 million in such sales during 1995. The Company
also was able to increase its gain on sales of student loans by packaging its
loans in a manner than allowed it to obtain a higher premium from SLMA. The
principal balance of residential mortgage loans sold was $45.1 million during
1996 compared to $33.6 million during 1995.
The gain on sales of investment securities during 1996 occurred when $4.6
million in Agency securities classified as "held to maturity", and $11.2
million in Agency securities classified as "available for sale", originally
purchased at a discount, were called prior to their stated maturity date, and
$150,000 in corporate stock classified as "available for sale" was sold.
30
<PAGE>
Years ended December 31, 1995 and 1994. Total other income declined by
$247,000 for fiscal 1995 compared to 1994 primarily due to decreased gains on
sales of student loans into the secondary market. This decrease was partially
offset by increased gains on sales of residential mortgage loans and increased
service charges attributable to its higher deposit base. During 1995, the
Company sold $40.7 million in student loans compared to $59.6 million in such
sales during 1994. Sales of residential mortgage loans declined in 1995 to
$34.0 million from $47.5 million in 1994, reflecting the decline in
refinancing activity during the comparatively higher interest rate environment
which generally prevailed during 1995. Residential mortgage loans were
generally sold with servicing released during fiscal 1995 which increased the
gain on such sales but may reduce future servicing income which is included in
other noninterest income.
During 1995, a loss on sales of investment securities occurred when the Bank
sold securities classified as "held to maturity". The Company concluded that
these securities were sold at a time near enough to their maturity dates that
interest rate risk was substantially eliminated as a pricing factor.
OTHER EXPENSES
The following table sets forth the Company's other expenses for the periods
indicated.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31, YEAR ENDED DECEMBER 31,
--------------- -----------------------
1997 1996 1996 1995 1994
------- ------- ------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Salaries and employee benefits......... $ 3,487 $ 2,828 $12,164 $10,057 $ 8,038
Occupancy.............................. 1,043 759 3,671 3,080 2,509
FDIC and other insurance expense....... 63 132 859 856 1,056
Credit cards........................... 76 104 411 547 504
General and administrative............. 1,690 1,396 6,121 5,362 4,333
------- ------- ------- ------- -------
Total other expenses................. $ 6,359 $ 5,219 $23,226 $19,902 $16,440
======= ======= ======= ======= =======
</TABLE>
The increase in the Company's other expenses during the past several years
reflects the Company's growth in asset size during this period. The Company
continues to experience increases in both salaries and employee benefits and
occupancy expense as it develops its markets.
Three months ended March 31, 1997 and 1996. The Company's other expenses
increased $1.1 million for the first quarter of 1997 compared to the first
quarter of 1996. This increase was primarily the result of an increase in
salaries and employee benefits, which increased $659,000 as a result of a 21%
increase in staffing. The increase in staffing is related to the expansion of
the Company's asset and deposit bases. In addition, general and administrative
expenses increased $287,000 and occupancy expense increased $284,000 compared
to 1996. The increase in occupancy expense was due primarily to the leasing of
additional office space and the depreciation on furniture and equipment
purchased to furnish those new offices. These increases were offset by
reductions in both FDIC and other insurance and credit card expenses.
Years ended December 31, 1996 and 1995. The Company's other expenses
increased $3.3 million, or 17%, for fiscal year 1996 compared to fiscal year
1995. This increase was primarily the result of an increase in salaries and
employee benefits, which increased $2.1 million, or 21%, as a result of a 20%
increase in staffing. The increase in staffing is related to the expansion of
the Company's asset and deposit bases. In addition, occupancy expense
increased $591,000, due primarily to the leasing of additional office space
and the depreciation on furniture and equipment purchased to furnish those new
offices, and general and administrative expense increased $759,000. Included
in general and administrative expense was $139,000 in expenses related to an
unsuccessful effort to establish additional branches.
Despite the increase in the Company's deposit base, FDIC and other insurance
for 1996 increased only $3,000 compared to 1995. Regular deposit insurance
premium rates decreased beginning July 1, 1995 as the
31
<PAGE>
Bank Insurance Fund ("BIF"), of which the Bank is a member, achieved its
statutory reserve ratio. However, legislation enacted by Congress required
that the Bank pay a one-time special assessment of $436,000 to the FDIC with
respect to deposits it acquired from a savings association in 1991. After the
payment of this special assessment, the insurance premiums related to these
acquired deposits were also reduced.
Years ended December 31, 1995 and 1994. The Company's other expenses
increased by $3.5 million, or 21%, during 1995 compared to 1994. This increase
was primarily the result of an increase in salaries and employee benefits,
which increased by $2.0 million, or 25%, as a result of a 22% increase in
staffing. The increase in staffing is related to the expansion of the
Company's asset and deposit bases. In addition, general and administrative
expense increased by $1.0 million and occupancy expense increased by $571,000
compared to 1994. These increases were offset by a $200,000 reduction in FDIC
and other insurance expense. The increase in occupancy expense was due
primarily to the leasing of additional office space in Tulsa and Oklahoma City
and the depreciation on furniture and equipment purchased to furnish those new
offices. The reduction in FDIC and other insurance was due to a reduction in
premiums as the BIF achieved its statutory reserve ratio.
TAXES ON INCOME
The Company's income tax expense for the first three months of 1997 and 1996
was $186,000 and $1.1 million, respectively. The Company's income tax expense
for fiscal years 1996, 1995 and 1994 was $4.3 million, $3.3 million and $2.8
million, respectively. The increases in taxes on income during 1996 and 1995
reflect the Company's higher earnings. The Company's effective tax rates have
been lower than the 34% to 35% federal and 6% state statutory rates primarily
because of tax-exempt income on municipal obligations and loans.
FINANCIAL CONDITION, CAPITAL RESOURCES AND LIQUIDITY
Lending
Loans include commercial real estate, commercial, student, residential real
estate, construction and credit card and other consumer loans. Interest earned
on the Bank's loan portfolio is its primary source of income. Loans were
$676.5 million at March 31, 1997, an increase of $31.9 million, or 5%,
compared to December 31, 1996. The Company experienced increases in the
categories of commercial mortgages ($12.5 million, or 6%), commercial loans
($6.1 million, or 3%), real estate construction loans ($4.8 million, or 9%),
government-guaranteed student loans ($4.1 million, or 7%), other consumer
loans ($3.5 million, or 11%), and residential mortgages ($2.6 million, or 4%).
These increases were offset by a $1.7 million, or 8% reduction in credit card
loans. The allowance for loan losses increased by $1.3 million, or 19%, from
December 31, 1996 to March 31, 1997. At March 31, 1997, the allowance for loan
losses was $8.5 million, or 1.25% of total loans, compared to $7.1 million, or
1.11% of total loans, at December 31, 1996. Although the Bank's legal lending
limit to any one borrower was $10.4 million at December 31, 1996, the Bank's
lending policy generally limits loans to any one borrower to 90% of the Bank's
legal lending limit, although exceptions are made from time to time. The
Bank's largest single borrower, net of participations, at March 31, 1997 had
outstanding loans of $9.8 million.
For further information regarding the Bank's loan portfolio, including
information regarding concentrations of credit, see "Note 3. Loans
Receivable," to the Company's consolidated financial statements.
32
<PAGE>
The following table presents the composition of the Bank's loan portfolio,
net of unearned interest, at each of the dates indicated:
LOAN PORTFOLIO COMPOSITION
<TABLE>
<CAPTION>
AT MARCH 31, 1997 AT DECEMBER 31, AT DECEMBER 31,
------------------ ---------------------------------------------------- ----------------------------------
1996 1995 1994 1993 1992
---------------- ---------------- ---------------- ---------------- ----------------
AMOUNT % AMOUNT % AMOUNT % AMOUNT % AMOUNT % AMOUNT %
------------------ -------- ------ -------- ------ -------- ------ -------- ------ -------- ------
(DOLLARS IN THOUSANDS)
------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Real estate
mortgage:
Commercial........ $ 208,607 30.84% $196,163 30.43% $160,126 30.10% $132,297 32.06% $ 88,953 27.87% $ 64,111 25.86%
One-to-four
family
residential...... 63,804 9.43 61,175 9.49 42,988 8.08 33,882 8.21 31,864 9.98 25,495 10.28
Real estate
construction...... 59,207 8.75 54,369 8.43 33,159 6.23 20,725 5.02 9,844 3.08 9,650 3.89
Commercial......... 224,589 33.20 218,515 33.90 181,081 34.04 120,781 29.27 80,732 25.29 55,666 22.45
Installment and
consumer:
Guaranteed
student loans.... 66,027 9.76 61,959 9.61 67,388 12.67 61,752 14.97 69,739 21.84 60,171 24.27
Credit cards...... 19,137 2.83 20,839 3.23 21,869 4.11 20,958 5.08 19,189 6.01 16,943 6.83
Other............. 35,128 5.19 31,626 4.91 25,377 4.77 22,219 5.39 18,939 5.93 15,931 6.42
--------- ------- -------- ------ -------- ------ -------- ------ -------- ------ -------- ------
676,499 100.00% 644,646 100.00% 531,988 100.00% 412,614 100.00% 319,260 100.00% 247,967 100.00%
======= ====== ====== ====== ====== ======
Less:
Allowance for
loan losses...... (8,484) (7,139) (5,813) (4,959) (3,960) (3,393)
--------- -------- -------- -------- -------- --------
Total........... $ 668,015 $637,507 $526,175 $407,655 $315,300 $244,574
========= ======== ======== ======== ======== ========
</TABLE>
The following table sets forth the remaining maturities for certain loan
categories at December 31, 1996. Credit card and student loans, which do not
have stated maturities, are treated as due in one year or less.
LOAN PORTFOLIO MATURITY
<TABLE>
<CAPTION>
ONE YEAR ONE TO OVER
OR LESS FIVE YEARS FIVE YEARS TOTAL
-------- ---------- ---------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Real estate mortgage:
Commercial............................ $ 11,245 $ 37,790 $147,128 $196,163
One-to-four family residential........ 11,216 22,174 27,785 61,175
Real estate construction................ 28,862 19,285 6,222 54,369
Commercial.............................. 67,833 114,704 35,978 218,515
Installment and consumer:
Student loans......................... 61,959 -- -- 61,959
Credit cards.......................... 20,839 -- -- 20,839
Other consumer........................ 7,235 23,695 696 31,626
-------- -------- -------- --------
Total............................... $209,189 $217,648 $217,809 $644,646
======== ======== ======== ========
</TABLE>
33
<PAGE>
The following table sets forth at December 31, 1996 the dollar amount of all
loans due more than one year after December 31, 1996.
LOAN PORTFOLIO SENSITIVITY
<TABLE>
<CAPTION>
FIXED VARIABLE TOTAL
-------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Real estate mortgage:
Commercial........................................ $ 24,361 $160,557 $184,918
One-to-four family residential.................... 12,870 37,089 49,959
Real estate construction............................ 8,451 17,056 25,507
Commercial.......................................... 33,798 116,884 150,682
Installment and consumer:
Student loans..................................... -- -- --
Credit cards...................................... -- -- --
Other consumer.................................... 21,908 2,483 24,391
-------- -------- --------
Total........................................... $101,388 $334,069 $435,457
======== ======== ========
</TABLE>
Nonperforming Loans. The Bank maintains a loan review department, which
reports directly to the Chief Financial Officer. The loan review department
does not have any lending authority. The Bank has retained, since late 1993,
an outside consultant to advise the loan review department and assist in the
loan review function. The loan review department recommends credits to the
Executive Loan Committee for inclusion on the watch list which is reviewed by
the Loan Quality Assurance Committee of the Board of Directors monthly. With
the concurrence of the Executive Loan Committee, credits also may be
recommended to the Loan Quality Assurance Committee for inclusion on the watch
list by the Chief Lending Officer, loan managers and individual loan officers.
The recognition of interest income on loans receivable is discontinued when,
in management's judgment, the interest will not be collectible in the normal
course of business. Generally, the Bank does not accrue interest on any asset
(i) which is maintained on a cash basis because of deterioration in the
financial condition of the borrower, (ii) for which payment in full of
principal or interest is not expected, or (iii) upon which principal or
interest has been in default for a period of 90 days or more unless the asset
is both well secured and in the process of collection. The Company does not
have any material amounts of interest-earning assets which would have been
included in nonaccrual, past due or restructured loans if such assets were
loans.
Nonperforming loans consist of loans on a nonaccrual basis, loans which are
contractually past due 90 days or more, and loans, the original terms of which
have been restructured. Of the amounts included in nonperforming loans at
March 31, 1997, approximately $723,000, or approximately 10% of the total
loans reported as nonperforming, are guaranteed by the federal government or
an agency thereof, or by a government sponsored corporation. The following
table sets forth the amounts of nonperforming assets at the end of the periods
indicated.
34
<PAGE>
NONPERFORMING ASSETS
<TABLE>
<CAPTION>
AT MARCH 31, AT DECEMBER 31,
------------ ------------------------------------------------
1997 1996 1995 1994 1993 1992
------------ -------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Real estate mortgage
Commercial:
Nonaccrual............. $ 27 $ 191 $ 107 $ 179 $ 261 $ 731
Past due 90 days or
more.................. 665 614 88 -- -- 29
Restructured terms..... 568 577 608 639 676 784
One-to four-family
residential:
Nonaccrual............. 31 265 18 58 95 346
Past due 90 days or
more.................. 474 363 251 72 37 57
Restructured loans..... -- -- -- -- -- --
Real estate
construction:
Nonaccrual............. -- -- -- 86 101 123
Past due 90 days or
more.................. 192 119 -- -- -- --
Restructured terms..... -- -- -- -- -- --
Commercial:
Nonaccrual............. 4,663 4,149 567 805 1,473 2,293
Past due 90 days or
more.................. 188 71 435 241 32 687
Restructured terms..... -- -- 2,996 -- 195 25
Installment and
consumer:
Student loans:
Nonaccrual............. -- -- -- -- -- 3
Past due 90 days....... 4 -- -- -- 17 46
Restructured........... -- -- -- -- -- --
Credit cards:
Nonaccrual............. -- -- -- -- -- --
Past due 90 days....... 61 82 63 138 52 70
Restructured........... -- -- -- -- -- 26
Other consumer:
Nonaccrual............. 24 30 32 210 28 42
Past due 90 days or
more.................. 164 188 114 62 174 63
Restructured........... -- -- -- -- -- --
-------- -------- -------- -------- -------- --------
Total nonperforming
loans............... 7,061 6,649 5,279 2,490 3,141 5,325
Other real estate
owned.................. 432 64 195 264 472 848
-------- -------- -------- -------- -------- --------
Total nonperforming
assets.............. $ 7,493 $ 6,713 $ 5,474 $ 2,754 $ 3,613 $ 6,173
======== ======== ======== ======== ======== ========
Loans receivable........ $676,499 $644,646 $531,988 $412,614 $319,260 $247,967
Summary:
Total nonaccrual....... $ 4,745 $ 4,635 $ 724 $ 1,338 $ 1,958 $ 3,538
Total past due 90
days.................. 1,748 1,437 951 513 312 952
Total restructured..... 568 577 3,604 639 871 835
-------- -------- -------- -------- -------- --------
Total nonperforming
loans............... 7,061 6,649 5,279 2,490 3,141 5,325
Other real estate
owned................. 432 64 195 264 472 848
-------- -------- -------- -------- -------- --------
Total nonperforming
assets.............. $ 7,493 $ 6,713 $ 5,474 $ 2,754 $ 3,613 $ 6,173
======== ======== ======== ======== ======== ========
Allowance for loan
losses to loans
receivable............. 1.25% 1.11% 1.09% 1.20% 1.24% 1.37%
Nonperforming loans to
loans receivable....... 1.04 1.03 0.99 0.60 0.98 2.15
Allowance for loan
losses to nonperforming
loans.................. 120.15 107.37 110.12 199.16 126.07 63.72
Nonperforming assets to
loans receivable and
other real estate
owned.................. 1.11 1.04 1.03 0.67 1.13 2.48
</TABLE>
The principal balance of loans for which accrual of interest has been
discontinued totaled approximately $4.7 million at March 31, 1997. During the
first three months of 1997, $103,000 in interest income was received on
nonaccruing loans. If interest on those loans had been accrued, total interest
income of $171,000 would have been recorded.
35
<PAGE>
During the years ended December 31, 1996 and 1995, gross interest income of
$398,000 and $48,000, respectively, would have been recorded on loans
accounted for on a nonaccrual or restructured basis if such loans had been
current throughout the period. Interest on such loans included in income
during such periods amounted to approximately $37,000 and $367,000,
respectively.
Those performing loans considered potential problem loans, as defined and
identified by management, amount to approximately $20.7 million at March 31,
1997, compared to $23.0 million at December 31, 1996. Although these are loans
where known information about the borrowers' possible credit problems cause
management to have doubts as to their ability to comply with the present loan
repayment terms, most are well collateralized and are not believed to present
significant risk of loss. These loans are subject to continuing management
attention and are considered by management in determining the level of the
allowance for loan losses. The Company's loan portfolio, however, contains a
significant number of commercial and commercial real estate loans with
relatively large balances. The deterioration of one or a few of such loans may
cause a significant increase in potential problem loans or in nonperforming
loans. Potential problem loans include $3.2 million in loans to individuals
and businesses in the healthcare industry and $1.8 million in restaurant
loans. See "Loan Concentrations."
No interest-bearing assets disclosed above, other than loans, were
classified as nonperforming at March 31, 1997 or December 31, 1996, or were
recognized by management as potential problem assets based upon known
information about possible credit problems of the borrower or issuer.
Loan Concentrations. The Bank extends commercial and consumer credit
primarily to customers in the State of Oklahoma which subjects the loan
portfolio to the general economic conditions within this area. At March 31,
1997, and December 31, 1996 and 1995, substantially all of the Bank's loans,
except for credit cards, were collateralized with real estate, inventory,
accounts receivable and/or other assets or guaranteed by agencies of the
United States Government.
Loans to individuals and businesses in the healthcare industry totaled
approximately $79 million, or 12% of total loans at March 31, 1997. Other
notable concentrations of credit within the loan portfolio at March 31, 1997
include $23.8 million, or 4% of total loans, in hotel/motel loans, $23.4
million, or 3% of total loans, in residential construction loans and $15.8
million, or 2% of total loans, in restaurant loans.
Allowance for Loan Losses. The allowance for loan losses is a valuation
reserve established by management in an amount it deems adequate to provide
for losses in the loan portfolio. Management assesses the adequacy of the
allowance for loan losses based upon a number of factors including, among
others, analytical reviews of loan loss experience in relationship to
outstanding loans and commitments; unfunded loan commitments; problem and
nonperforming loans and other loans presenting credit concerns; trends in loan
growth, portfolio composition and quality; use of appraisals to estimate the
value of collateral; and management's judgment with respect to current and
expected economic conditions and their impact on the existing loan portfolio.
The allowance for loan losses is increased by provisions for loan losses
charged to expense. Charge-offs of loan amounts determined by management to be
uncollectible or impaired decrease the allowance and recoveries of previous
charge-offs, if any, are added to the allowance. Management believes that the
allowance for loan losses was adequate at December 31, 1996 and March 31,
1997.
The amount of the allowance deemed appropriate by management, and the levels
of loan charge-offs and nonperforming loans, are affected by changing economic
conditions and economic prospects and the financial position of borrowers.
Management strives to carefully monitor credit quality and the adequacy of the
allowance for loan losses, and to identify loans that may become
nonperforming. At any time, however, there are loans included in the portfolio
that will result in losses to the Company, but that have not been identified
as nonperforming or potential problem loans. Because the loan portfolio
contains a significant number of commercial and commercial real estate loans
with relatively large balances, the unexpected deterioration of one or a few
of such loans may cause a significant increase in nonperforming assets, and
lead to a material increase in charge-offs and the provision for loan losses.
Since problems with commercial and commercial real estate
36
<PAGE>
loans do not necessarily appear early in their lives, the Company may
experience increased levels of nonperforming loans and loan charge-offs as the
relatively large volume of recently originated loans mature. In addition, the
OCC, as an integral part of its examination process, periodically reviews the
Bank's allowance for loan losses. Such agencies may require the Bank to
recognize additions to the allowance based upon judgments of the OCC examiners
about information available to them at the time of their examination.
The Company adopted Financial Accounting Standards Board ("FASB") Statement
of Financial Accounting Standards ("SFAS") No. 114, Accounting by Creditors
for Impairment of a Loan, as amended by SFAS No. 118, Accounting by Creditors
for Impairment of a Loan-Income Recognition and Disclosure on January 1, 1995.
The allowance for loan losses related to loans that are identified for
evaluation in accordance with SFAS No. 114 is based on discounted cash flows
using the loan's initial effective interest rate or the fair value of the
collateral for certain collateral dependent loans. The amount of impairment
determined in accordance with SFAS No. 114 did not differ materially from
amounts previously provided. This evaluation is inherently subjective as it
requires material estimates, including the amounts and timing of future cash
flows expected to be received on impaired loans, that may be susceptible to
significant change. The allowance for loan losses is established through a
provision for loan losses charged to expense. A loan is considered to be
impaired when, based on current information and events, it is probable that
the Company will be unable to collect all amounts due according to the
contractual terms of the loan agreement. All of the Company's nonaccrual loans
have been defined as impaired loans. In addition, SFAS No. 114 does not affect
the comparability of the credit risk disclosures.
Based upon its review, management established an allowance of $8.5 million,
or 1.25% of total loans, at March 31, 1997, compared to an allowance of $7.1
million, or 1.11% of total loans, at December 31, 1996, and an allowance of
$5.8 million, or 1.09% of total loans, at December 31, 1995. In establishing
the level of the allowance for March 31, 1997, management considered a number
of factors that tend to indicate a potential need for an increased allowance
level, including the increased risk inherent in the amount of commercial and
commercial real estate loans, which are viewed as entailing greater risk than
certain other categories of loans, recent charge-off history, and the amount
of large loans and of identified nonperforming loans at March 31, 1997, versus
December 31, 1996. At March 31, 1997, total nonperforming loans were $7.1
million, or 1.04% of total loans, compared to $6.6 million, or 1.03% of total
loans, at December 31, 1996. Management also considered other factors,
including the levels of types of credits, such as residential mortgage loans,
deemed to be of relatively low risk, that tended to indicate the potential
need for a lower allowance. The Company determined the level of the allowance
for loan losses at March 31, 1997 was appropriate as a result of balancing
these and other factors it deemed relevant to the adequacy of the allowance.
Management conducted a similar analysis in order to determine the appropriate
allowance at March 31, 1996 and December 31, 1996, 1995, and 1994.
In establishing this level of allowance for December 31, 1996, management
considered a number of factors that tend to indicate a potential need for an
increased allowance level, including the increased level of nonperforming
loans at December 31, 1996 versus December 31, 1995, the increased risk
associated with the level of real estate construction loans (8.4% of the loan
portfolio at December 31, 1996 and 6.2% of the portfolio at December 31,
1995), which are viewed as entailing greater risk than certain other
categories of loans. Management also considered other factors, including the
levels of types of credits, such as the increased level of residential
mortgage loans, deemed to be of relatively low risk, and the level of loans
which are guaranteed by the federal government, its agencies or federally
sponsored corporations, that tended to indicate the potential need for a lower
allowance. One-to-four family residential mortgage loans were 9.5% of the loan
portfolio at December 31, 1996 versus 8.1% at December 31, 1995. Relatively
lower risk student loans decreased to 9.6% at year-end 1996 from 12.7% the
previous year-end. The level of commercial loans, which comprise the largest
category in the portfolio, remained unchanged at approximately 34% of the
total portfolio at December 31, 1996 and 1995. The level of commercial
mortgage loans, comprising approximately 30% of the year-end portfolio, was
similarly unchanged. Overall, the loan portfolio, before deduction of the
allowance for loan losses, increased by $112.7 million, or 21%, from year-end
1995 to year-end 1996, while the allowance grew by $1.3 million, or 23%. The
Company determined the level of the allowance for loan losses at December 31,
1996 was appropriate, as a result of its balancing these and other factors it
deemed relevant to the adequacy of the allowance.
37
<PAGE>
The Company's ratio of net charge-offs to average loans outstanding
increased to 0.31% for the year ended December 31, 1996 from 0.24% in 1995 and
0.22% in 1994. The 1996 increase in the net charge-off ratio reflected an
increase in commercial real estate mortgage and credit card loan charge-offs
relative to the balances of those loan categories and total loans. The
Company's ratio of net charge-offs to average loans outstanding increased to
1.00%, on an annualized basis, for the first quarter of 1997, primarily as a
result of the impairment of the commercial loans described above.
At December 31, 1996, nonperforming loans were $6.6 million, or 1.03% of the
portfolio, compared with $5.3 million, or 0.99% of the portfolio at December
31, 1995. The allowance for loan losses equalled 107% and 110% of
nonperforming loans at December 31, 1996 and 1995, respectively. Large changes
in the ratio of the allowance to nonperforming loans may occur from period to
period because of variations in the amounts of nonperforming loans, which
depend largely on the condition of a small number of individual loans and
borrowers relative to the total loan portfolio. The $3.9 million increase in
nonaccrual loans from year-end 1995 was mainly the result of the
classification as nonaccrual of a group of related loans with a remaining net
book value of $3.4 million at December 31, 1996 that had been classified as
restructured at December 31, 1995.
At March 31, 1997, impaired loans totaled $4.9 million, and had been
allocated a related allowance for loan losses of $2.3 million. At December 31,
1996 and 1995, impaired loans totaled $4.8 million and $3.3 million, and had
been allocated a related allowance for loan losses of $2.0 million and $1.3
million, respectively.
38
<PAGE>
The following table sets forth an analysis of the Company's allowance for
loan losses for the periods indicated.
SUMMARY OF LOAN LOSS EXPERIENCE AND RELATED INFORMATION
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
-------------------- ------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
--------- --------- -------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at beginning of
period................. $ 7,139 $ 5,813 $ 5,813 $ 4,959 $ 3,960 $ 3,393 $ 2,901
Loans charged-off
Real estate mortgage
One-to-four family
residential........... 78 9 80 7 16 58 76
Commercial............. 26 -- 68 -- 156 14 317
Real estate
construction.......... -- -- -- 1 -- 13 26
Commercial............. 1,350 294 1,064 1,101 461 675 364
Installment and
consumer
Student loans.......... -- -- -- -- 1 8 17
Credit cards........... 241 220 803 528 370 519 564
Other consumer......... 77 110 286 166 199 129 267
--------- --------- -------- -------- -------- -------- --------
Total charge-offs.... 1,772 633 2,301 1,803 1,203 1,416 1,631
--------- --------- -------- -------- -------- -------- --------
Recoveries
Real estate mortgage
One-to-four family
residential........... 35 2 15 33 23 15 31
Commercial............. 1 1 10 119 34 251 117
Real estate
construction.......... -- -- -- -- -- -- --
Commercial............. 50 103 288 334 94 76 143
Installment and
consumer
Student loans.......... 1 -- -- 1 -- 3 6
Credit cards........... 20 28 106 111 139 130 76
Other consumer......... 9 35 108 59 112 108 100
--------- --------- -------- -------- -------- -------- --------
Total recoveries..... 116 169 527 657 402 583 473
--------- --------- -------- -------- -------- -------- --------
Net loans charged-off... 1,656 464 1,774 1,146 801 833 1,158
Provision for loan
losses................. 3,001 875 3,100 2,000 1,800 1,400 1,650
--------- --------- -------- -------- -------- -------- --------
Balance at end of
period................. $ 8,484 $ 6,224 $ 7,139 $ 5,813 $ 4,959 $ 3,960 $ 3,393
========= ========= ======== ======== ======== ======== ========
Loans outstanding
Average................ $ 669,424 $ 540,627 $580,590 $473,080 $356,323 $277,099 $229,230
End of period.......... 676,499 537,088 644,646 531,988 412,614 319,260 247,967
Ratio of allowance for
loan losses to loans
outstanding
Average................ 1.27% 1.15% 1.23% 1.23% 1.39% 1.43% 1.48%
End of period.......... 1.25% 1.16% 1.11% 1.09% 1.20% 1.24% 1.37%
Ratio of net charge-offs
to average loans
outstanding during the
period................. 1.00% 0.35% 0.31% 0.24% 0.22% 0.30% 0.51%
========= ========= ======== ======== ======== ======== ========
</TABLE>
39
<PAGE>
The following table allocates the allowance for loan losses by loan category
at the dates indicated. The allocation of the allowance to each category is
not necessarily indicative of future losses and does not restrict the use of
the allowance to absorb losses in any category. The amounts shown in the
column labeled "Percent of Total Loans" are the percentages of loans
outstanding in each category of loans to total loans outstanding at the dates
indicated.
ALLOCATION OF THE ALLOWANCE FOR LOAN LOSSES
<TABLE>
<CAPTION>
AT DECEMBER 31,
------------------------------------------------------------------------------
AT MARCH 31,
1997 1996 1995 1994 1993 1992
-------------- -------------- -------------- -------------- -------------- --------------
PERCENT PERCENT PERCENT PERCENT PERCENT PERCENT
OF OF OF OF OF OF
TOTAL TOTAL TOTAL TOTAL TOTAL TOTAL
AMOUNT LOANS AMOUNT LOANS AMOUNT LOANS AMOUNT LOANS AMOUNT LOANS AMOUNT LOANS
------ ------- ------ ------- ------ ------- ------ ------- ------ ------- ------ -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Real estate mortgage
One- to-four family
residential........... $ 309 9.43% $ 294 9.49% $ 176 8.08% $ 178 8.21% $ 103 9.98% $ 100 10.28%
Commercial............. 371 30.84 584 30.43 538 30.10 941 32.06 519 27.87 558 25.86
Real estate
construction........... 543 8.75 457 8.43 310 6.23 195 5.02 32 3.08 39 3.89
Commercial.............. 5,109 33.20 4,597 33.90 3,688 34.04 2,616 29.27 1,302 25.29 1,329 22.45
Installment and consumer
Guaranteed student
loans................. -- 9.76 -- 9.61 9 12.67 6 14.97 65 21.84 18 24.27
Credit cards........... 753 2.83 670 3.23 456 4.11 247 5.08 747 6.01 564 6.83
Other.................. 268 5.19 263 4.91 83 4.77 137 5.39 88 5.93 211 6.42
Unallocated............. 1,131 -- 274 -- 553 -- 639 -- 1,104 -- 574 --
------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------
Total allowance for loan
losses................. $8,484 100.00% $7,139 100.00% $5,813 100.00% $4,959 100.00% $3,960 100.00% $3,393 100.00%
====== ====== ====== ====== ====== ====== ====== ====== ====== ====== ====== ======
</TABLE>
INVESTMENT ACTIVITIES
The objectives of the investment portfolio are to provide the Company with a
source of liquidity (from scheduled maturities) as well as a source of
earnings. No significant gains or losses were realized from sales of
securities during the years ended December 31, 1996 or 1995 or the three
months ended March 31, 1997.
The following table presents the composition of the investment portfolio by
major category at the dates indicated.
INVESTMENT SECURITIES PORTFOLIO COMPOSITION
<TABLE>
<CAPTION>
AT DECEMBER 31,
AT MARCH 31, --------------------------
1997 1996 1995 1994
------------ -------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
U.S. government and agency
securities........................... $114,497 $109,988 $110,785 $109,620
State and municipal obligations....... 12,659 13,153 11,579 10,217
Mortgage-backed securities............ 21,388 23,061 24,222 22,972
Other securities...................... 1,140 1,149 1,102 708
-------- -------- -------- --------
Total investment securities......... $149,684 $147,351 $147,688 $143,517
======== ======== ======== ========
Available for sale (fair value)....... $ 64,897 $ 63,762 $ 73,044 $ 37,214
Held to maturity (amortized cost)..... 84,787 83,589 74,644 106,303
-------- -------- -------- --------
$149,684 $147,351 $147,688 $143,517
======== ======== ======== ========
</TABLE>
40
<PAGE>
The following table sets forth the maturities, carrying value (amortized
cost (in the case of investment securities being held to maturity) or fair
value (in the case of investment securities available for sale)), fair market
values and average yields for the Company's investment portfolio at March 31,
1997. Yields are not presented on a tax-equivalent basis. Maturities of
mortgage-backed securities are based on expected maturities. Expected
maturities will differ from contractual maturities due to unscheduled
repayments and because borrowers on the underlying mortgages may have the
right to call or prepay obligations with or without prepayment penalties.
The securities of no single issuer (other than the United States or its
agencies), or in the case of securities issued by state and political
subdivisions, no source or group of sources of repayment, accounted for more
than 10% of stockholders' equity of the Company at March 31, 1997.
MATURITY OF INVESTMENT SECURITIES PORTFOLIO
<TABLE>
<CAPTION>
ONE TO FIVE FIVE TO TEN MORE THAN TOTAL INVESTMENT
ONE YEAR OR LESS YEARS YEARS TEN YEARS SECURITIES
---------------- ---------------- ---------------- ---------------- -------------------------
CARRYING AVERAGE CARRYING AVERAGE CARRYING AVERAGE CARRYING AVERAGE CARRYING FAIR AVERAGE
VALUE YIELD VALUE YIELD VALUE YIELD VALUE YIELD VALUE VALUE YIELD
-------- ------- -------- ------- -------- ------- -------- ------- -------- -------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
HELD TO MATURITY
U.S. government and
agency securities.... $21,050 5.74% $ 52,301 6.20% -- -- -- -- $ 73,351 $ 73,161 6.07%
State and municipal
obligations.......... 2,622 4.06% 8,814 4.34% -- -- -- -- 11,436 11,437 4.28%
Mortgage-backed
securities........... -- -- -- -- -- -- -- -- -- -- --
Other securities...... -- -- -- -- -- -- -- -- -- -- --
------- ----- -------- ---- ------ ---- --- --- -------- -------- -----
Total held to
maturity............. $23,672 5.56% $ 61,115 5.93% -- -- -- -- $ 84,787 $ 84,598 5.83%
======= ===== ======== ==== ====== ==== === === ======== ======== =====
AVAILABLE FOR SALE
U.S. government and
agency securities.... $ 5,427 6.24% $ 27,964 6.63% $7,755 7.11% -- -- $ 41,146 $ 41,146 6.67%
State and municipal
obligations.......... -- -- 1,223 5.07% -- -- -- -- 1,223 1,223 5.07%
Mortgage-backed
securities........... 6,476 6.53% 14,236 6.65% 676 7.40% -- -- 21,388 21,388 6.64%
Other securities...... 1,140 14.84% -- -- -- -- -- -- 1,140 1,140 14.84%
------- ----- -------- ---- ------ ---- --- --- -------- -------- -----
Total available for
sale................. $13,043 7.14% $ 43,423 6.59% $8,431 7.13% -- -- $ 64,897 $ 64,897 6.77%
======= ===== ======== ==== ====== ==== === === ======== ======== =====
Total investment
securities........... $36,715 6.12% $104,538 6.21% $8,431 7.13% -- -- $149,684 $149,495 6.24%
======= ===== ======== ==== ====== ==== === === ======== ======== =====
</TABLE>
At March 31, 1997 and December 31, 1996, the Company held mortgage-backed
securities with a book-value of $21.4 million and $23.1 million, respectively,
all of which were collateralized by single-family mortgage loans. It is the
Company's policy to purchase mortgage-backed securities issued by the Federal
Home Loan Mortgage Corporation ("FHLMC"), Federal National Mortgage
Association or Fannie Mae ("FNMA"), or the Government National Mortgage
Association or Ginnie Mae ("GNMA"), when such securities can be acquired at
attractive yields, and where the investment characteristics of the securities
complement the Bank's asset/liability management objectives, primarily as to
interest rate adjustments and terms to maturity. FHLMC, FNMA and GNMA
mortgage-backed securities have lower risk weightings, and therefore require
less capital, than residential mortgage loans. Mortgage-backed securities also
may be used as collateral for borrowings and, through repayments, as a source
of liquidity. At March 31, 1997, December 31, 1996, 1995, and 1994, the
Company had no investments in privately issued mortgage-backed securities, and
had no mortgage-related securities that were rated "high risk" under
regulatory guidelines.
PREMISES AND EQUIPMENT
Premises and equipment at March 31, 1997 was $3.0 million greater than at
December 31, 1996 primarily due to the acquisition of land for a new Tulsa
Banking Center at 15th and Utica to be opened in late 1998. The
41
<PAGE>
Company intends to construct a new facility for its Tulsa operations.
Groundbreaking on this 42,000 square foot building is expected to occur in the
third quarter of 1997, with occupancy anticipated in the third quarter of
1998. When opened, the building will include space for rental to third
parties. The total cost of the building is expected to be $8.0 million. A
substantial portion of these costs will be capitalized and, except for the
cost of the land, will be expensed over the useful life of the property.
Premises and equipment at December 31, 1996 was $3.4 million greater than at
December 31, 1995, primarily due to the acquisition of premises in Chickasha,
Oklahoma and the costs of remodeling existing properties.
DEPOSIT ACTIVITY
The principal sources of funds for the Bank are core deposits (demand
deposits, NOW interest-bearing transaction accounts, money market accounts,
savings deposits and certificates of deposit of less than $100,000) from the
local market areas surrounding each of the Bank's offices. Certificates of
deposit of $100,000 or more, which are also derived primarily from the local
market areas of the Bank's offices, and which are priced comparably to
certificates of deposit below $100,000, also constitute a significant source
of funds for the Bank. The Bank's deposit base includes transaction accounts,
time and savings accounts and accounts which customers use for cash management
and which provide the Bank with a source of fee income and cross-marketing
opportunities as well as a low-cost source of funds. Time and savings
accounts, including money market deposit accounts, also provide a relatively
stable and low-cost source of funding. The largest source of funds for the
Bank remains certificates of deposit.
The Bank offers a variety of cash management services to its commercial
deposit customers including the lock-box collections and deposit
reconciliation and verification. Commercial customers in Tulsa and Oklahoma
City frequently use third-party courier services to deliver deposits which has
allowed the Bank to effectively service these metropolitan areas from its
current branch locations.
The Company's deposits increased by $60.6 million, or 8%, from $753.9
million at December 31, 1996 to $814.5 million at March 31, 1997. This
increase occurred primarily in time deposits, which increased by $49.2
million, or 9%. NOW deposits and money market accounts increased by $2.7
million and $6.6 million, respectively, or 8% each, from December 31, 1996 to
March 31, 1997.
The Bank's deposits grew by $120.0 million, or 19%, during 1996. Deposit
growth during 1996 came mainly from time deposits. The Bank has not solicited
brokered deposits as a source of funds, although its capitalization would
permit such activity on an unrestricted basis under current federal banking
regulations.
42
<PAGE>
The following table sets forth the distribution of the Bank's deposit
accounts at the dates indicated and the weighted average nominal interest
rates on each category of deposit.
DEPOSITS
<TABLE>
<CAPTION>
AT DECEMBER 31,
----------------------------------------------------------------------
AT MARCH 31, 1997 1996 1995 1994
---------------------- ---------------------- ---------------------- ----------------------
PERCENT PERCENT PERCENT PERCENT
OF OF OF OF
AMOUNT DEPOSITS RATE AMOUNT DEPOSITS RATE AMOUNT DEPOSITS RATE AMOUNT DEPOSITS RATE
-------- -------- ---- -------- -------- ---- -------- -------- ---- -------- -------- ----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Demand deposits......... $ 85,943 10.55% -- % $ 83,729 11.11% -- % $ 78,308 12.34% -- % $ 66,661 12.69% -- %
NOW accounts............ 37,054 4.55 2.31 34,309 4.55 2.32 33,762 5.32 2.37 31,236 5.94 2.33
Money market deposits... 93,467 11.47 4.14 86,910 11.53 3.82 75,330 11.87 4.10 73,882 14.06 3.38
Savings deposits........ 4,002 0.49 2.50 4,086 0.54 2.49 4,788 0.76 2.44 6,669 1.27 2.53
Time deposits of
$100,000 or more....... 142,397 17.49 5.63 123,068 16.33 5.66 86,258 13.60 5.77 64,661 12.30 4.19
Other time deposits..... 451,674 55.45 5.73 421,843 55.94 5.77 355,941 56.11 5.89 282,451 53.74 4.51
-------- ------ -------- ------ -------- ------ -------- ------
Total Deposits.......... $814,537 100.00% $753,945 100.00% $634,387 100.00% $525,560 100.00%
======== ====== ======== ====== ======== ====== ======== ======
</TABLE>
The following table indicates the amount of the Bank's certificates of
deposit of $100,000 or more by time remaining until maturity at March 31,
1997.
AMOUNTS AND MATURITIES OF TIME DEPOSITS OF $100,000 OR MORE
<TABLE>
<CAPTION>
MATURITY PERIOD AMOUNT
--------------- ----------------------
(DOLLARS IN THOUSANDS)
<S> <C>
Three months or less............................... $ 60,345
Over three months through six months............... 33,218
Over six months through twelve months.............. 31,637
Over twelve months................................. 17,197
--------
Total............................................ $142,397
========
</TABLE>
BORROWINGS
The Company uses various forms of short-term borrowings for cash management
and liquidity purposes on a limited basis. These forms of borrowings include
federal funds purchases and borrowings from the Federal Reserve Bank and
Student Loan Marketing Association ("SLMA"). The Bank has approved federal
funds purchase lines with three other banks. The Bank also carries interest-
bearing demand notes issued by the Bank to the U.S. Treasury as a participant
in the Treasury Tax and Loan note option program. The Bank has available a
$20.0 million line of credit from SLMA, borrowings under which would be
secured by student loans. Borrowings under this line of credit may be used for
any permissible corporate purpose.
43
<PAGE>
SHORT TERM BORROWINGS
<TABLE>
<CAPTION>
AT MARCH 31, AT DECEMBER 31,
-------------- ----------------------
1997 1996 1996 1995 1994
------ ------ ------ ------ ------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Amounts outstanding at end of period:
Treasury tax and loan note option.... $1,500 $1,500 $1,185 $ 471 $1,500
Federal funds purchased and
securities sold under repurchase
agreements.......................... -- -- 1,800 2,800 12,900
Other short-term borrowings.......... -- -- -- 7,500 --
Weighted average rate paid on:
Treasury tax and loan note option.... 5.67% 5.10% 4.99% 5.15% 5.20%
Federal funds purchased and
securities sold under repurchase
agreements.......................... -- -- 6.70% 5.75% 5.84%
Other short-term borrowings.......... -- -- -- 5.55% --
Maximum amount of borrowings
outstanding at any month end:
Treasury tax and loan note option.... $1,500 $1,500 $1,500 $1,710 $1,976
Federal funds purchased and
securities sold under repurchase
agreements.......................... 1,000 2,300 2,300 11,200 12,900
Other short-term borrowings.......... 5,000 -- -- 12,500 --
Approximate average short-term
borrowings outstanding with respect
to:
Treasury tax and loan note option.... 1,203 1,162 1,135 1,152 1,117
Federal funds purchased and
securities sold under repurchase
agreements.......................... 849 753 251 1,536 1,177
Other short-term borrowings.......... 2,996 2,225 554 1,839 507
Approximate average weighted rate paid
on:
Treasury tax and loan note option.... 4.76% 5.44% 4.96% 5.79% 3.78%
Federal funds purchased and
securities sold under repurchase
agreements.......................... 5.67% 5.76% 5.78% 6.05% 4.98%
Other short-term borrowings.......... 5.84% 5.59% 5.59% 6.41% 3.97%
</TABLE>
CAPITAL RESOURCES
Shareholders' equity at March 31, 1997 of $64.5 million, increased $3.3
million, or 5%, over March 31, 1996, but decreased by $493,000, or 1%, from
December 31, 1996. The first quarter 1997 decrease was due to reduced earnings
for the first three months of 1997, which were less than dividends declared on
common and preferred stock, and a $303,000 decrease attributable to a change
in the unrealized gain/loss, net of taxes, on investment securities available
for sale. Shareholders' equity increased to $65.0 million at December 31, 1996
from $60.4 million a year earlier. The increase was primarily attributed to
the earnings retained after common and preferred stock dividend payments. Net
unrealized gains on investment securities available for sale (net of tax)
declined to $205,000 at December 31, 1996 compared to $612,000 at December 31,
1995. The Company also increased common stock and related surplus by $170,000
through the issuance of common stock by the dividend reinvestment and employee
stock purchase plans.
The Bank meets the requirements for a well-capitalized institution. See
accompanying notes to the Company's consolidated financial statements for
additional information regarding the Company's and the Bank's actual capital
requirements and ratios.
LIQUIDITY
Liquidity is measured by a financial institution's ability to raise funds
through deposits, borrowed funds, capital, or the sale of highly marketable
assets such as residential mortgage loans. The Company's portfolio of
government-guaranteed student loans and SBA loans are also readily salable.
Additional sources of liquidity,
44
<PAGE>
including cash flow from the repayment of loans, are also considered in
determining whether liquidity is satisfactory. Liquidity is also achieved
through growth of core deposits and liquid assets, and accessibility to the
capital and money markets. These funds are used to meet deposit withdrawals,
maintain reserve requirements, fund loans and operate the organization. Core
deposits, defined as demand deposits, NOW accounts, savings deposits and
certificates of deposit less than $100,000, were 84%, 86% and 88% of total
deposits at December 31, 1996, 1995 and 1994, respectively, and were 83% and
84% of total deposits at March 31, 1997 and 1996, respectively.
The Company uses various forms of short-term borrowings for cash management
and liquidity purposes on a limited basis. These forms of borrowings include
federal funds purchases and borrowings from the Federal Reserve Bank. The Bank
has approved federal funds purchase lines with three other banks. The Bank
also carries interest-bearing demand notes issued to the U.S. Treasury as a
participant in the Treasury Tax and Loan note program. In addition, the Bank
has available a $20.0 million line of credit from SLMA. Borrowings under the
SLMA line would be secured by student loans. During 1996 and 1995, and during
the first quarter of 1997, no category of borrowings averaged more than 30% of
ending shareholders' equity.
During the first three months of 1997, cash and cash equivalents increased
by $21.1 million. The increase was the result of cash generated from financing
activities (primarily increased deposits) of $60.0 million and operating
activities of $4.3 million offset by $43.2 million in cash used in investing
activities.
Cash and cash equivalents, during the first three months of 1996, increased
by $8.5 million. The increase was the result of cash generated from financing
activities (primarily increased deposits) of $19.7 million and investing
activities of $1.4 million offset by $12.6 million in cash used in operating
activities.
During the year 1996, cash and cash equivalents increased by $2.1 million as
compared to the year ended December 31, 1995. The increase was the result of
cash generated from financing activities (primarily increased deposits) of
$117.1 million offset by $114.5 million in cash used in investing activities
and $535,000 in cash used in operating activities.
During 1995, cash and cash equivalents increased by $4.4 million as compared
to the year ended December 31, 1994. The increase was the result of cash
generated from operating activities of $2.9 million and financing activities
(primarily increased deposits) of $123.8 million offset by $122.3 million in
cash used in investing activities.
ASSET/LIABILITY MANAGEMENT
Net interest income, the primary component of the Company's net income,
arises from the difference between the yield on interest-earning assets and
the cost of interest-bearing liabilities and the relative amounts of such
assets and liabilities.
The Company manages its assets and liabilities by coordinating the levels
of, or gap between, interest rate sensitive assets and liabilities to minimize
changes in net interest income despite changes in market interest rates. It is
the Company's goal to maintain a percentage of rate-sensitive assets to rate-
sensitive liabilities of between 75% and 125%. This percentage of rate-
sensitive assets to rate-sensitive liabilities presents a static position as
of a single day and is not necessarily indicative of the Company's position at
any other point in time and does not take into account the sensitivity of
yields and costs of specific assets and liabilities to changes in market
rates. While the Company's goal is to match the maturities of assets and
liabilities on a dollar for dollar basis, market forces such as the needs of
depositors and borrowers and competition may cause it to operate close to the
policy limits. The asset/liability policy is intended to stabilize the long-
run earning power of the Company along an acceptable growth path. The Bank's
Asset/Liability Management Committee meets on a monthly basis to monitor
compliance with its objectives.
Generally, during a period of rising interest rates, a negative gap position
would adversely affect net interest income, while a positive gap would result
in an increase in net interest income, while, conversely, during a period
45
<PAGE>
of falling interest rates, a negative gap would result in an increase in net
interest income and a positive gap would adversely affect net interest income.
Because of the Company's current gap position and the repricing and repayment
characteristics of its loan portfolio, which consists primarily of short-term
and floating-rate loans, management believes the Company's net interest income
will not be materially adversely affected by increases or decreases in market
interest rates. Increases in general interest rates, however, may affect other
sources of income such as gains on sales of mortgages.
The following table sets forth the Company's interest rate sensitivity at
March 31, 1997.
<TABLE>
<CAPTION>
0 TO 3 4 TO 12 OVER 1 TO OVER
MONTHS MONTHS 5 YEARS 5 YEARS TOTAL
-------- -------- --------- --------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Interest-earning assets:
Loans receivable........ $338,627 $208,828 $111,710 $ 17,334 $676,499
Investment securities... 8,094 22,116 99,106 20,368 149,684
Federal funds sold...... 15,800 -- -- -- 15,800
-------- -------- -------- --------- --------
Total................. 346,721 230,944 210,816 37,702 826,183
-------- -------- -------- --------- --------
Interest-bearing
liabilities:
Money market deposit
accounts............... 93,467 -- -- -- 93,467
Time deposits........... 194,441 322,343 77,198 89 594,071
Savings accounts........ 4,002 -- -- -- 4,002
NOW accounts............ 37,054 -- -- -- 37,054
Other................... 1,500 -- -- -- 1,500
-------- -------- -------- --------- --------
Total................. 330,464 322,343 77,198 89 730,094
-------- -------- -------- --------- --------
Interest sensitivity gap.. $ 16,257 $(91,399) $133,618 $ 37,613 $ 96,089
======== ======== ======== ========= ========
Cumulative interest
sensitivity gap.......... $ 16,257 $(75,142) $ 58,476 $ 96,089 $ 96,089
======== ======== ======== ========= ========
Percentage of interest-
earning assets to
interest-bearing
liabilities.............. 104.92% 71.65% 273.08% 42,361.80% 113.16%
======== ======== ======== ========= ========
Percentage of cumulative
gap to total assets...... 1.83% (8.46)% 6.59% 10.82% 10.82%
======== ======== ======== ========= ========
</TABLE>
The foregoing analysis assumes that the Company's mortgage-backed securities
mature during the period in which they are estimated to prepay. No other
prepayment or repricing assumptions have been applied to the Company's
interest-earning assets.
EFFECTS OF INFLATION
The consolidated financial statements and related consolidated financial
data presented herein have been prepared in accordance with generally accepted
accounting principles and practices within the banking industry which require
the measurement of financial position and operating results in terms of
historical dollars without considering the changes in the relative purchasing
power of money over time due to inflation. Unlike most industrial companies,
virtually all the assets and liabilities of a financial institution are
monetary in nature. As a result, interest rates have a more significant impact
on a financial institution's performance than the effects of general levels of
inflation.
RECENTLY ADOPTED ACCOUNTING STANDARDS
In March 1995, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 121, Accounting for
the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
Of, which establishes accounting standards for such assets. In May 1995, the
FASB also issued SFAS No. 122, Accounting for Mortgage Servicing Rights, which
amends the accounting for the
46
<PAGE>
rights to service mortgage loans, however acquired, and requires the Company
to recognize as separate assets those rights to service mortgage loans for
others. Moreover, SFAS No. 122 requires the Company to evaluate whether
amounts capitalized as mortgage servicing rights are impaired.
In October 1995, the FASB issued SFAS No. 123, Accounting for Stock-Based
Compensation. SFAS No. 123 establishes a fair value method and disclosure
standards for stock-based employee compensation arrangements, such as stock
purchase plans and stock options. SFAS No. 123 requires expanded disclosures
of stock-based compensation arrangements with employees and encourages, but
does not require, compensation cost to be measured based on the fair value of
the equity instrument awarded. As permitted by SFAS No. 123, the Company will
continue to follow the provisions of Accounting Principles Board Opinion
("APB") No. 25 for such stock-based compensation arrangements and has
disclosed the proforma effects of applying SFAS No. 123 for 1995 and 1996 in
these financial statements.
The adoption of SFAS Nos. 121, 122 and 123 in the 1996 financial statement
did not have a material impact on the Company's consolidated financial
position or results of operations.
In February 1997, the FASB issued SFAS No. 129, Disclosure of Information
About Capital Structure. SFAS No. 129 establishes standards for disclosure of
information regarding an entity's capital structure. The adoption of SFAS No.
129 did not affect the Company's consolidated financial position or results of
operations.
ACCOUNTING STANDARDS ISSUED BUT NOT YET ADOPTED
In June 1996, the FASB issued SFAS No. 125, Accounting for Transfers and
Servicing of Financial Assets and Extinguishments of Liabilities. SFAS No. 125
requires the Company to recognize the financial and servicing assets it
controls and liabilities it has incurred, derecognize financial assets when
control has been surrendered, and derecognize liabilities when extinguished.
In December 1996, the FASB adopted an amendment to SFAS No. 125 that will
delay for one year certain provisions of the Statement. As amended, SFAS No.
125 is effective for transfers and servicing of financial assets and
extinguishments of liabilities occurring after December 31, 1997. The Company
will adopt SFAS No. 125 for transfers and servicing of financial assets and
extinguishments of liabilities when required. Management believes that
adoption of SFAS No. 125 will not have a material impact on the Company's
consolidated financial position or results of operations.
In February 1997, the FASB issued SFAS No. 128, Earnings Per Share, which
establishes standards for computing and presenting earnings per share. SFAS
No. 128 is effective for periods ending after December 15, 1997. Management
believes that SFAS No. 128 will not have a significant effect on the Company's
calculation of earnings per share considering its current capital structure
and the capital structure that would result from the issuance of the Preferred
Securities.
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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 SBI
Capital, 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 SBI Capital 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 SBI Capital of
any securities other than the Trust Securities or the incurrence of any
indebtedness by SBI Capital.
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 SBI Capital 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 January 31, April 30, July 31 and October 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 June , 1997, the date of original issuance. The first
Distribution Date for the Preferred Securities will be July 31, 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
due and 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
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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, 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, (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 SBI Capital available for distribution
to holders of its Preferred Securities will be limited to payments under the
Subordinated Debentures in which SBI Capital 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 SBI Capital 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 OR EXCHANGE
General. The Subordinated Debentures will mature on July 31, 2027. The
Company will have the right to redeem the Subordinated Debentures (i) on or
after July 31, 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 SBI Capital until after
July 31, 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
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unpaid Distributions thereon to the date of redemption (the "Redemption
Date"). See "Description of the Subordinated Debentures--Redemption or
Exchange." 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.
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 SBI Capital
and, after satisfaction of the liabilities of creditors of SBI Capital as
provided by applicable law, cause the Subordinated Debentures to be
distributed to the holders of Trust Securities in liquidation of SBI Capital.
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 at any time, in whole (but not in part) at the Redemption Price,
within 180 days following the occurrence of such Tax Event, Capital Treatment
Event or Investment Company Event. In the event a Tax Event, a Capital
Treatment Event or an Investment Company Event in respect of the Trust
Securities has occurred and the Company does not elect to redeem the
Subordinated Debentures and thereby cause a mandatory redemption of such Trust
Securities or to liquidate SBI Capital and cause the Subordinated Debentures
to be distributed to holders of such Trust Securities in liquidation of SBI
Capital as described below under "--Liquidation Distribution Upon
Termination," such Preferred Securities will remain outstanding and Additional
Interest (as defined herein) may be payable on the Subordinated Debentures.
"Additional Interest" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by SBI Capital on
the outstanding Trust Securities will not be reduced as a result of any
additional taxes, duties and other governmental charges to which SBI Capital
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 SBI Capital, 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 it 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 SBI Capital 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 SBI Capital, may, therefore, trade at a discount to the price
that the investor paid to purchase the Preferred Securities offered hereby.
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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 SBI Capital has funds on hand
available for the payment of such Redemption Price. See "--Subordination of
Common Securities."
If SBI Capital 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 irrevocably
deposit 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 SBI Capital, 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 SBI Capital 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 does not and
is not continuing to exercise 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.
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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 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 SBI Capital 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, SBI Capital 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 SBI Capital
(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 "Description of the Preferred Securities--Redemption or
Exchange--Mandatory Redemption," or (iv) the entry of an order for the
dissolution of SBI Capital by a court of competent jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv) of
the preceding paragraph, SBI Capital will be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of SBI Capital 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 SBI Capital available for
distribution to holders, after satisfaction of liabilities to creditors of SBI
Capital 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
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"Liquidation Distribution"). If such Liquidation Distribution can be paid only
in part because SBI Capital has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by
SBI Capital 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 SBI Capital 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 SBI Capital." If the Company elects
neither to redeem the Subordinated Debentures prior to maturity nor to
liquidate SBI Capital 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 SBI Capital and thereby causes the
Subordinated Debentures to be distributed to holders of the Preferred
Securities in liquidation of SBI Capital, the Company will continue to have
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 SBI Capital 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 SBI Capital 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 SBI Capital 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
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(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 SBI Capital. 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 SBI CAPITAL 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.
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 along with the
Property Trustee 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 SBI CAPITAL
SBI Capital 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. SBI
Capital 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
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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 SBI Capital 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), (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 SBI Capital 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, the
Indenture, the Subordinated Debentures, the Trust Agreement and the Expense
Agreement. Notwithstanding the foregoing, SBI Capital 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
SBI Capital or the successor entity to be classified as other than a grantor
trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided below and under "Description of the Guarantee--Amendments
and Assignment" and as otherwise required by law 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 SBI Capital 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 SBI
Capital 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 SBI Capital's status as a grantor trust
for United States federal income tax purposes or SBI Capital's 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
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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 SBI Capital 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 SBI Capital 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
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 AGENCY
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. The paying agent for the Preferred Securities may
resign as paying agent upon 30 days' written notice to the Property Trustee
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 SBI Capital, but upon
payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. SBI Capital 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.
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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, upon the occurrence and
during the continuance of an 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
courses 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 SBI Capital in such a way that SBI Capital 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 SBI Capital 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.
DESCRIPTION OF THE SUBORDINATED DEBENTURES
Concurrently with the issuance of the Preferred Securities, SBI Capital 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 June , 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 $22,402,500 (or $25,762,875 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 January 31, April
30, July 31, and October 31 of each year (each, an "Interest Payment Date")
beginning July 31, 1997, to the Person (as defined in the Indenture) in whose
name each Subordinated Debenture
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is registered, subject to certain exceptions, at the close of business on the
fifteenth day of the month in which the Interest Payment Date occurs. It is
anticipated that, until the liquidation of SBI Capital, 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 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 Interest, as applicable.
The Subordinated Debentures will mature on July 31, 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 July 31, 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 July 31,
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, (iii) SBI Capital is not in
arrears on payments of Distributions on the Preferred Securities and no
deferred Distributions are accumulated, and (iv) the Company has a Senior Debt
rating of investment grade. 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, SBI Capital 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 SBI Capital until after
July 31, 2002, except if a Tax Event, 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 the Bank, upon the 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 the Bank, except to the extent that the Company may itself be recognized as
a creditor of the Bank. The Subordinated Debentures will, therefore, be
effectively subordinated to all existing and future liabilities of the Bank,
and holders of Subordinated Debentures 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
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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, (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 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, 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 SBI Capital 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 Interest") on the Subordinated Debentures such additional amounts
as may be required so that the net amounts received and retained by SBI
Capital after paying any such additional taxes, duties or other governmental
charges will not be less than the amounts SBI Capital would have received had
such additional taxes, duties or other governmental charges not been imposed.
REDEMPTION OR EXCHANGE
The Company will have the right to redeem the Subordinated Debentures prior
to maturity (i) on or after July 31, 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 SBI Capital 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
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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) SBI Capital 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) SBI Capital 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 SBI Capital of an opinion of
counsel experienced in such matter 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, provided, however, that the inability of
the Company to treat all or any portion of the Liquidation Amount of the
Preferred Securities as Tier 1 Capital shall not constitute the basis of a
Capital Treatment Event if such inability results from the Company having
cumulative preferred capital in excess of the amount which may qualify for
treatment as Tier 1 Capital under applicable capital adequacy guidelines of
the Federal Reserve.
"Investment Company Event" means the receipt by SBI Capital 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, SBI Capital 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 SBI Capital, the Subordinated Debentures may be distributed to
the holders of the Preferred Securities in liquidation of SBI Capital after
satisfaction of liabilities to creditors of SBI Capital as provided by
applicable law. Any such distribution will be subject to receipt of prior
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 SBI
Capital, 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.
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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, (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 Securities.
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 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
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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, 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 United States Bankruptcy
Code of 1978, as amended.
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. At May 15, 1997, the Company had no outstanding Senior Debt,
Subordinated Debt or Additional Senior Obligations. 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 Bank.
PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on the Subordinated Debentures will
be made at the office of the Company's paying agent in New York, New York,
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 Debentures. In the event that the Company
fails to maintain a paying agent in New York, New York, Subordinated
Debentures may be presented for payment of principal and interest at the
Corporate Trust Office of the Debenture Trustee in Boston, Massachusetts.
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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), in New York, New
York or 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; provided
that the Company maintains a transfer agent in New York, New York. 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 of 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, SBI Capital may become subject
to the reporting obligations under the Exchange Act. The Company has the right
under the Indenture to set-off any payment made to such holder of Preferred
Securities by the Company in connection with a Direct Action.
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 no Person may 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
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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.
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 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 Oklahoma.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee has and is subject to all 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 SBI Capital (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 SBI Capital, 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 SBI Capital, 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 SBI Capital 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 will act as indenture trustee under the
Guarantee for purposes of complying with the provisions of the Trust Indenture
Act. The Guarantee Trustee, State Street Bank and Trust Company, 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 SBI
Capital 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 SBI Capital (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 SBI Capital has funds available
therefor at such time, (ii) the Redemption Price with respect to any Preferred
Securities called for redemption to the extent that SBI Capital has funds
available therefor at such time, and (iii) upon a voluntary or involuntary
dissolution, winding up or liquidation of SBI Capital (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 SBI
Capital has funds available therefor at such time, and (b) the amount of
assets of SBI Capital remaining available for distribution to holders of
Preferred Securities in liquidation of SBI Capital. 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 SBI Capital to pay such amounts to such holders.
The Guarantee will not apply to any payment of Distributions except to the
extent SBI Capital has funds available therefor. If the Company does not make
interest payments on the Subordinated Debentures held by SBI Capital, SBI
Capital will not pay Distributions on the Preferred Securities and will not
have funds 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 SBI Capital 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 the Bank upon the Bank's liquidation or reorganization or
otherwise is subject to the prior claims of creditors of the Bank, except to
the extent the
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Company may itself be recognized as a creditor of the 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.
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 SBI Capital, 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 SBI Capital, 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 Oklahoma.
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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 SBI
Capital becomes indebted or liable, the full payment of any costs, expenses or
liabilities of SBI Capital, other than obligations of SBI Capital to pay to
the holders of the Preferred Securities or other similar interests in SBI
Capital 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 SBI Capital may proceed directly against the Company under the
Expense Agreement, regardless of whether such creditors had notice of the
Expense Agreement.
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 SBI Capital 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 SBI Capital
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 SBI Capital under the Preferred
Securities. If and to the extent that the Company does not make payments on
the Subordinated Debentures, SBI Capital will not pay Distributions or other
amounts due on the Preferred Securities. The Guarantee does not cover payment
of Distributions when SBI Capital 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 SBI Capital (except the
obligations of SBI Capital to holders of the Preferred Securities), and
(iv) the Trust Agreement further provides that SBI Capital will not engage in
any activity that is not consistent with the limited purposes of SBI Capital.
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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, SBI Capital 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 SBI CAPITAL
The Preferred Securities evidence a preferred undivided beneficial interest
in the assets of SBI Capital. SBI Capital exists for the exclusive purposes of
(i) issuing the Trust Securities representing undivided beneficial interests
in the assets of SBI Capital, (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. 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 SBI Capital (or from the Company under the Guarantee) if and to the
extent SBI Capital has funds available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
SBI Capital involving the liquidation of the Subordinated Debentures, the
holders of the Preferred Securities will be entitled to receive, out of assets
held by SBI Capital, 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 SBI
Capital (other than the obligations of SBI Capital 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 Kennedy & Baris, L.L.P., counsel to the Company
and SBI Capital, 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.
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No attempt has been made in the following discussion to comment on 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 U.S.
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.
CLASSIFICATION OF SBI CAPITAL
Under current law and assuming full compliance with the terms of the Trust
Agreement and Indenture (and certain other documents described herein), SBI
Capital 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 items of income realized with respect to its
allocable share of the Subordinated Debentures.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
Applicable Treasury regulations generally provide that stated interest on a
debt instrument is not "qualified stated interest" and, therefore, will give
rise to original issue discount ("OID") unless such interest is
unconditionally payable in cash or in property (other than debt instruments of
the issuer) at least annually at a single fixed rate. Interest is considered
to be unconditionally payable only if reasonable legal remedies exist to
compel timely payment or the debt instrument otherwise provides terms and
condition that make the likelihood of late payment (other than late payment
that occurs within a reasonable grace period) or non-payment a "remote
contingency."
The Company has the right, at any time and from time to time during the term
of the Subordinated Debentures, to defer payments of interest by extending
interest payment periods for a period not exceeding 20 consecutive quarters.
Unless the likelihood of exercise of such right to defer is remote, the
Subordinated Debentures would be treated as issued with OID. A holder of a
debt instrument issued with OID must include
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that discount in income on an economic accrual basis before the receipt of
cash attributable to the interest, regardless of their method of tax
accounting. Under the Indenture, 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, (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. See
"Description of Subordinated Debentures--Option to Extend Interest Payment
Period." The Company currently believes that the adverse impact that the
imposition of such restrictions would have on the Company and on the value of
its equity securities makes the likelihood of its exercising its right to
defer payments of interest on the Subordinated Debentures remote. Accordingly,
the Company believes that the stated interest on the Subordinated Debentures
should be considered unconditionally payable for purposes of the Code and that
the Subordinated Debentures should not be considered to have been issued with
OID. If so, stated interest paid or payable prior to the exercise, if any, by
the Company, of its right to defer interest payments, will be taxable to a
holder as ordinary interest income, generally at the time it is received or
accrued, in accordance with such holder's regular method of accounting for
federal income tax purposes. There can be no assurance that the Internal
Revenue Service will agree with this position.
If, notwithstanding the foregoing, the Company does exercise its right to
defer payments of interest thereon, the Subordinated Debentures will be
considered to be retired and reissued for their adjusted issue price at such
time, and the Subordinated Debentures thereafter will be considered to have
been issued with OID. In such case, all the interest payments thereafter
payable will be treated as OID. If the payments were treated as OID (either
because the Company exercises the right to defer interest payments or because
the exercise of such right was not remote at the time of issuance), holders
must include that discount in income on an economic accrual basis before the
receipt of cash attributable to the interests, regardless of their method of
tax accounting, and any holder who disposes of Preferred Securities prior to
the record date for payment of Distributions thereon following such Extended
Interest Payment Period will include OID in gross income but will not receive
any cash related thereto from SBI Capital. The amount of OID that accrues in
any quarter will approximately equal the amount of the interest that accrues
in that quarter at the stated interest rate. In the event that the interest
payment period is extended, holders will accrue OID approximately equal to the
amount of the interest payment due at the end of the Extended Interest Payment
Period on an economic accrual basis over the length of the Extended Interest
Payment Period.
Holders of Preferred Securities will not be entitled to a dividends-received
deduction with respect to any income recognized with respect to the Preferred
Securities.
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 SBI CAPITAL
Under certain circumstances, as described under "Description of the
Preferred Securities--Redemption or Exchange" and "--Liquidation Distribution
Upon Termination," the Subordinated Debentures may be distributed to holders
of Preferred Securities upon a liquidation of SBI Capital. Under current
United States federal income tax law, such a distribution would be treated as
a nontaxable event to each such holder and would result in such holder having
an aggregate tax basis in the Subordinated Debentures received in the
liquidation
71
<PAGE>
equal to such holder's aggregate tax basis in the Preferred Securities
immediately before the distribution. A holder's holding period in the
Subordinated Debentures so received in liquidation of SBI Capital would
include the period for which such holder held the Preferred Securities.
If, however, a Tax Event occurs which results in SBI Capital 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 or Exchange"
and "--Liquidation Distribution Upon Termination."
DISPOSITION OF PREFERRED SECURITIES
A holder that sells Preferred Securities will recognize gain or loss equal
to the difference between the amount realized on the sale of the Preferred
Securities (other than amounts attributable to accrued but unpaid interest
which has not yet been included in income, which will be treated as ordinary
income) and the holder's adjusted tax basis in such Preferred Securities. A
holder's adjusted tax basis in the Preferred Securities generally will be its
initial purchase price increased by OID (if any) previously includable in such
holder's gross income to the date of disposition (and the accrual of market
discount, if any, if an election to accrue market discount in income currently
is made) and decreased by payments received on the Preferred Securities to the
date of disposition (other than payments of qualified stated interest). Such
gain or loss will generally 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 with respect to the
underlying Subordinated Debentures. A holder who uses the accrual method of
accounting (and a cash method holder if the Subordinated Debentures are deemed
to have been issued with OID) that disposes of its Preferred Securities
between record dates for payments of distributions thereon will be required to
include accrued but unpaid interest on the Subordinated Debentures through the
date of disposition in income as ordinary income, and to add such amount to
its adjusted tax basis in its pro rata share of the underlying Subordinated
Debentures deemed disposed of. To the extent the selling price (which may not
fully reflect the value of accrued but unpaid interest) is less than the
holder's adjusted tax basis (which basis will include, in the form of OID, all
accrued but unpaid interest), 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 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
72
<PAGE>
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 1997 Proposed Legislation
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 U.S. 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. There can be no assurance that the effective date
guidance in the 1997 Proposed Legislation will be adopted if the proposed
change to the tax law is enacted, or 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, July
31, 2002. See "Description of the Subordinated Debentures--Redemption or
Exchange" and "Description of the Preferred Securities--Redemption or
Exchange--Tax Event Redemption, Capital Treatment Event Redemption or
Investment Company Event Redemption."
BACKUP WITHHOLDING AND INFORMATION REPORTING
The amount of interest (or OID) accrued 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 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 will 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.
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.
73
<PAGE>
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 from SBI Capital 870,000
Preferred Securities. 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 SBI Capital 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 for arranging the investment therein of such
proceeds, $ per Preferred Security (or $ in the aggregate, or $ in the
aggregate if the Underwriter's over-allotment option, described below, is
exercised in full), in immediately available funds.
SBI Capital has granted the Underwriter an option to purchase up to an
additional 130,500 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, SBI Capital
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 SBI Capital and the Company will issue and sell to SBI
Capital 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 and the additional Common Securities.
During a period of 180 days from the date of this Prospectus, neither SBI
Capital nor the Company will, subject to certain exceptions, without the prior
written consent of the Underwriter, 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).
Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market. The Underwriter has
advised SBI Capital 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.
74
<PAGE>
SBI Capital 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.
The Underwriter engages in transactions with, and, from time to time, has
performed services for, the Company and its subsidiaries in the ordinary
course of business.
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 SBI
Capital will be passed upon by Richards, Layton & Finger, special Delaware
counsel to the Company and SBI Capital. Certain legal matters for the Company
and SBI Capital, including the validity of the Guarantee and the Subordinated
Debentures, will be passed upon for the Company and SBI Capital by Kennedy &
Baris, L.L.P., Bethesda, Maryland, counsel to the Company and SBI Capital.
Certain legal matters will be passed upon for the Underwriter by Bryan Cave
llp, St. Louis, Missouri. Kennedy & Baris, L.L.P. and Bryan Cave llp 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 Kennedy & Baris, L.L.P.
EXPERTS
The consolidated financial statements at December 31, 1996 and 1995 and for
each of the three years in the period ended December 31, 1996 included and
incorporated by reference in this Prospectus have been audited by Deloitte &
Touche llp, independent auditors, as stated in their reports, which are
included and incorporated by reference herein, and have been so included and
incorporated in reliance upon the report of such firm given their authority 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 (the "Commission") are incorporated herein by
reference:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997;
(3) The Company's Current Reports on Form 8-K dated March 14, 1997 and
April 2, 1997.
All reports filed by the Company with the Commission pursuant to Section
13(a) 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 DEBORAH T. BRADLEY, SECRETARY, SOUTHWEST BANCORP, INC., 608 SOUTH
MAIN STREET, STILLWATER, OKLAHOMA 74074. TELEPHONE REQUESTS MAY BE DIRECTED TO
405-372-2230.
75
<PAGE>
AVAILABLE INFORMATION
This Prospectus constitutes a part of a Registration Statement on Form S-2
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and SBI Capital with the Commission under the
Securities Act, with respect to the Preferred Securities and the Subordinated
Debentures. 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 Indenture and the Trust
Agreement. Reference is made to such Registration Statement and to the
exhibits relating thereto for further information with respect to the Company,
SBI Capital, the Preferred Securities and the Subordinated Debentures. 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. Such reports, proxy statements and other
information can be inspected and copied 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, DC 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 SBI Capital 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
SBI Capital will be owned by the Company, a reporting company under the
Exchange Act, (ii) SBI Capital has no independent operations but exists for
the sole purpose of issuing securities representing undivided beneficial
interests in the assets of SBI Capital 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 SBI
Capital 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 SBI Capital and the related Indenture,
and the Expense Agreement, taken together, constitute, in the belief of the
Company and SBI Capital, a full and unconditional guarantee of payments due on
the Preferred Securities. See "Description of the Subordinated Debentures" and
"Description of the Guarantee."
SBI Capital is not currently subject to the informational reporting
requirements of the Exchange Act. SBI Capital will become subject to such
requirements upon the effectiveness of the Registration Statment, although it
intends to seek and expects to receive an exemption therefrom.
76
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
AUDITED CONSOLIDATED FINANCIAL STATEMENTS FOR THE YEAR ENDED DECEMBER 31,
1996
Independent Auditors' Report F-2
Consolidated Statements of Financial Condition at December 31, 1996 and
1995 F-3
Consolidated Statements of Operations for the Years Ended December 31,
1996, 1995 and 1994 F-4
Consolidated Statements of Shareholders' Equity for the Years Ended
December 31, 1996, 1995 and 1994 F-5
Consolidated Statements of Cash Flows for the Years Ended December 31,
1996, 1995 and 1994 F-6
Notes to Consolidated Financial Statements F-7
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS FOR THE THREE MONTHS ENDED
MARCH 31, 1997
Unaudited Consolidated Statements of Financial Condition at March 31,
1997 and December 31, 1996 F-22
Unaudited Consolidated Statements of Operations for the Three Months
Ended March 31, 1997 and 1996 F-23
Unaudited Consolidated Statements of Cash Flows for the Three Months
Ended March 31, 1997 and 1996 F-24
Unaudited Consolidated Statements of Shareholders' Equity for the Three
Months Ended March 31, 1997 and 1996 F-25
Notes to Consolidated Financial Statements F-26
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
TO THE BOARD OF DIRECTORS AND SHAREHOLDERS OF SOUTHWEST BANCORP, INC.:
We have audited the accompanying consolidated statements of financial
condition of Southwest Bancorp, Inc. and subsidiary (the "Company") as of
December 31, 1996 and 1995 and the related consolidated statements of
operations, shareholders' equity and cash flows for each of the three years in
the period ended December 31, 1996. These financial statements are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of Southwest Bancorp, Inc. and
subsidiary at December 31, 1996 and 1995, and the results of their operations
and their cash flows for each of the three years in the period ended December
31, 1996 in conformity with generally accepted accounting principles.
Deloitte & Touche, llp
Oklahoma City, Oklahoma
January 27, 1997
F-2
<PAGE>
SOUTHWEST BANCORP, INC.
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
DECEMBER 31, 1996 AND 1995
(DOLLARS IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
1996 1995
-------- --------
<S> <C> <C>
ASSETS
Cash and due from banks $ 22,914 $ 20,789
Federal funds sold -- --
-------- --------
Cash and cash equivalents 22,914 20,789
Investment securities:
Held to maturity, approximate fair value of $83,963 (1996)
and $75,202 (1995) 83,589 74,644
Available for sale, approximate amortized cost of $63,419
(1996) and $72,023 (1995) 63,762 73,044
Loans receivable, net of allowance for loan losses of $7,139
(1996) and $5,813 (1995) 637,507 526,175
Accrued interest receivable 7,400 7,117
Premises and equipment, net 9,649 6,224
Other assets 4,296 3,142
-------- --------
Total assets $829,117 $711,135
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Deposits:
Noninterest-bearing demand $ 83,729 $ 78,308
Interest-bearing demand 34,309 33,762
Money market accounts 86,910 75,330
Savings accounts 4,086 4,788
Time deposits 544,911 442,199
-------- --------
Total deposits 753,945 634,387
-------- --------
Income taxes payable 187 271
Accrued interest payable 5,061 4,266
Other liabilities 4,892 11,854
-------- --------
Total liabilities 764,085 650,778
-------- --------
Commitments and contingencies -- --
Shareholders' equity:
Serial preferred stock--
Series A, 9.20% Redeemable, Cumulative Preferred Stock; $1
par value; 1,000,000 shares authorized; liquidation value
$17,250,000; 690,000 shares issued and outstanding 690 690
Series B, $1 par value; 1,000,000 shares authorized; none
issued -- --
Common stock--$1 par value; 10,000,000 shares authorized;
issued and outstanding 3,764,216 (1996) and 3,755,228
(1995) 3,764 3,755
Capital surplus 24,332 24,171
Retained earnings 36,041 31,129
Unrealized gain/(loss) on investment securities available
for sale, net of tax 205 612
-------- --------
Total shareholders' equity 65,032 60,357
-------- --------
Total liabilities & shareholders' equity $829,117 $711,135
======== ========
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE>
SOUTHWEST BANCORP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(DOLLARS IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
1996 1995 1994
------- ------- -------
<S> <C> <C> <C>
Interest income:
Interest and fees on loans $55,177 $45,591 $30,090
Investment securities:
U.S. Government and agency obligations 6,815 6,737 5,781
State and political subdivisions 577 477 336
Mortgage-backed securities 1,531 1,535 1,203
Other securities 76 64 51
Federal funds sold 492 596 193
------- ------- -------
Total interest income 64,668 55,000 37,654
Interest expense:
Interest-bearing demand 838 764 802
Money market accounts 3,129 3,161 2,241
Savings accounts 114 133 187
Time deposits 28,647 24,208 13,286
Other borrowed money 105 278 121
------- ------- -------
Total interest expense 32,833 28,544 16,637
------- ------- -------
Net interest income 31,835 26,456 21,017
Provision for loan losses 3,100 2,000 1,800
------- ------- -------
Net interest income after provision for loan losses 28,735 24,456 19,217
Other income:
Service charges and fees 2,985 2,574 2,440
Credit cards 869 901 903
Other noninterest income 358 373 328
Gain on sales of loans receivable 1,678 1,034 1,453
Gain/(loss) on sales of investment securities 459 (8) (3)
------- ------- -------
Total other income 6,349 4,874 5,121
Other expenses:
Salaries and employee benefits 12,164 10,057 8,038
Occupancy 3,671 3,080 2,509
FDIC and other insurance 859 856 1,056
Credit cards 411 547 504
General and administrative 6,121 5,362 4,333
------- ------- -------
Total other expenses 23,226 19,902 16,440
------- ------- -------
Income before taxes 11,858 9,428 7,898
Taxes on income 4,306 3,336 2,754
------- ------- -------
Net income $ 7,552 $ 6,092 $ 5,144
======= ======= =======
Net income available to common shareholders $ 5,965 $ 5,426 $ 5,144
======= ======= =======
Earnings per common share $ 1.59 $ 1.44 $ 1.37
======= ======= =======
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE>
SOUTHWEST BANCORP, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(DOLLARS IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
UNREALIZED
GAIN (LOSS) TOTAL
ON AVAILABLE SHARE-
PREFERRED STOCK COMMON STOCK CAPITAL RETAINED FOR SALE HOLDERS'
SHARES AMOUNT SHARES AMOUNT SURPLUS EARNINGS SECURITIES EQUITY
--------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1994 -- -- 3,755,228 $3,755 $ 8,539 $22,077 $ 199 $34,570
Cash dividends paid:
Common, $0.15 per share -- -- -- -- -- (563) -- (563)
Cash dividends declared:
Common, $0.05 per share -- -- -- -- -- (187) -- (187)
Change in unrealized
gain (loss) on
available for sale
securities, net of tax -- -- -- -- -- -- (1,076) (1,076)
Net income -- -- -- -- -- 5,144 -- 5,144
-------------------------------------------------------------------------
Balance, December 31,
1994 -- -- 3,755,228 3,755 8,539 26,471 (877) 37,888
Cash dividends paid:
Common, $0.18 per share -- -- -- -- -- (676) -- (676)
Preferred, $0.7731 per
share -- -- -- -- -- (533) -- (533)
Cash dividends declared:
Common, $0.06 per share -- -- -- -- -- (225) -- (225)
Issuance of preferred
stock, net of offering
costs 690,000 $ 690 -- -- 15,632 -- -- 16,322
Change in unrealized
gain (loss) on
available for sale
securities, net of tax -- -- -- -- -- -- 1,489 1,489
Net income -- -- -- -- -- 6,092 -- 6,092
-------------------------------------------------------------------------
Balance, December 31,
1995 690,000 690 3,755,228 3,755 24,171 31,129 612 60,357
Cash dividends paid:
Common, $0.21 per share -- -- -- -- -- (790) -- (790)
Preferred, $2.30 per
share -- -- -- -- -- (1,587) -- (1,587)
Cash dividends declared:
Common, $0.07 per share -- -- -- -- -- (263) -- (263)
Common stock issued:
Employees Stock
Purchase Plan -- -- 3,552 4 64 -- -- 68
Dividend Reinvestment
Plan -- -- 5,436 5 97 -- -- 102
Change in unrealized
gain (loss) on
available for sale
securities, net of tax -- -- -- -- -- -- (407) (407)
Net Income -- -- -- -- -- 7,552 -- 7,552
-------------------------------------------------------------------------
Balance, December 31,
1996 690,000 $ 690 3,764,216 $3,764 $24,332 $36,041 $ 205 $65,032
-------------------------------------------------------------------------
-------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE>
SOUTHWEST BANCORP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
1996 1995 1994
--------- --------- ---------
<S> <C> <C> <C>
Operating activities:
Net income $ 7,552 $ 6,092 $ 5,144
Adjustments to reconcile net income to net
cash provided from operating activities:
Provision for loan losses 3,100 2,000 1,800
Depreciation and amortization expense 1,254 1,026 767
Amortization of premiums and accretion
of discount on securities, net 244 248 740
Amortization of intangibles 174 174 187
(Gain) Loss on sales of securities (459) 8 3
(Gain) Loss on sales of loans receivable (1,678) (1,034) (1,453)
(Gain) Loss on sales of
premises/equipment (10) 3 (10)
(Gain) Loss on other real estate owned,
net (2) (52) 3
Proceeds from sales of residential
mortgage loans 45,519 34,002 47,497
Residential mortgage loans originated
for resale (48,469) (34,947) (46,371)
Changes in assets and liabilities:
Accrued interest receivable (283) (1,240) (1,034)
Other assets (1,188) (986) 447
Income taxes payable (84) 78 (24)
Accrued interest payable 795 1,632 1,212
Other liabilities (7,000) (4,078) 12,453
--------- --------- ---------
Net cash (used in) provided from
operating activities (535) 2,926 21,361
--------- --------- ---------
Investing activities:
Proceeds from sales of held to maturity
securities -- 5,993 --
Proceeds from sales of available for sale
securities 438 -- 102
Proceeds from principal repayments and
maturities:
Held to maturity securities 25,388 17,193 27,537
Available for sale securities 28,969 6,286 6,339
Purchases of held to maturity securities (34,538) (23,363) (71,183)
Purchase of available for sale securities (20,383) (8,054) (25,406)
Loans originated and principal repayments,
net (157,591) (159,226) (153,424)
Proceeds from sales of guaranteed student
loans 47,768 40,738 59,617
Purchases of premises and equipment (4,693) (1,936) (1,870)
Proceeds from sales of premises and
equipment 24 18 38
Proceeds from sales of other real estate 152 68 184
--------- --------- ---------
Net cash used in investing activities (114,466) (122,283) (158,066)
--------- --------- ---------
Financing activities:
Net increase in deposits 119,558 108,827 131,039
Net proceeds from issuance of common stock 170 -- --
Net proceeds from issuance of preferred
stock -- 16,322 --
Common stock dividends paid (1,015) (864) (697)
Preferred stock dividends paid (1,587) (533) --
--------- --------- ---------
Net cash provided from financing
activities 117,126 123,752 130,342
--------- --------- ---------
Net increase (decrease) in cash and cash
equivalents 2,125 4,395 (6,363)
Cash and cash equivalents:
Beginning of year 20,789 16,394 22,757
--------- --------- ---------
End of year $ 22,914 $ 20,789 $ 16,394
========= ========= =========
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE>
SOUTHWEST BANCORP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING AND REPORTING POLICIES
ORGANIZATION AND NATURE OF OPERATIONS--Southwest Bancorp, Inc. ("the
Company") was incorporated in 1981 as a bank holding company headquartered in
Stillwater, Oklahoma engaged primarily in commercial and consumer banking
services in the State of Oklahoma. The accompanying consolidated financial
statements include the accounts of Stillwater National Bank and Trust Company
(the "Bank"), a wholly owned subsidiary, established in 1894. The Company has
six full-service banking offices, two of which are located in each of
Stillwater and Tulsa, Oklahoma, with one each in Oklahoma City and Chickasha,
Oklahoma, and two loan production offices, one in Oklahoma City and one in
Tulsa. The Company pursues a decentralized community banking strategy and
operates through three regional divisions. All significant intercompany
balances and transactions have been eliminated.
BASIS OF PRESENTATION--In preparing its financial statements, management is
required to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosures of contingent assets and liabilities as
of the dates shown on the consolidated statements of financial position and
revenues and expenses during the periods reported. Actual results could differ
significantly from those estimates. Changes in economic conditions could
impact the determination of material estimates such as the allowance for loan
losses and the valuation of real estate acquired in connection with
foreclosures or in satisfaction of loans.
INVESTMENT SECURITIES--Investments in debt and equity securities are
identified as held to maturity, trading, and available for sale based on
management considerations of asset/liability strategy, changes in interest
rates and prepayment risk, the need to increase capital and other factors.
Under certain circumstances (including the deterioration of the issuer's
creditworthiness, a change in tax law, or statutory or regulatory
requirements), the Company may change the investment security classification.
The classifications the Company utilizes determines the related accounting
treatment for each category of investments. Investments classified as trading
are accounted for at fair value, available for sale are accounted for at fair
value with unrealized gains or losses, net of taxes, excluded from earnings
and reported as a separate component of shareholders' equity, and held to
maturity are accounted for at amortized cost.
All held to maturity investment securities are adjusted for amortization of
premiums and accretion of discounts. Amortization of premiums and accretion of
discounts are recorded to income over the contractual maturity or estimated
life of the individual investment on the level yield method. The Company has
the ability and intent to hold to maturity its investment securities
classified as held to maturity; accordingly, no adjustment has been made for
the excess, if any, of amortized cost over market. Gain or loss on sale of
investments is based upon the specific identification method. Income earned on
the Company's investments in state and political subdivisions is not taxable.
LOANS RECEIVABLE--Interest on loans is accrued and credited to income based
upon the principal amount outstanding. In general, interest income on impaired
loans is written off after the loan is 90 days past due; subsequent interest
income is recorded when cash receipts are received from the borrower. The Bank
originates real estate mortgage loans and guaranteed student loans for
portfolio investment or sale in the secondary market. During the period of
origination, real estate mortgage loans are designated as held either for
investment purposes or sale. Mortgage loans held for sale are generally sold
within a one-month period from loan closing at amounts approximating par value
of the loans. Guaranteed student loans are generally sold after the Company
has been notified of the borrower's change from deferment status, which can
range from one to five years, or longer. Real estate mortgage loans held for
sale and guaranteed student loans are carried at cost, which does not exceed
market. Gains or losses recognized upon the sales of loans are determined on a
specific identification basis.
ALLOWANCE FOR LOAN LOSSES--The allowance for loan losses is established
through a provision for loan losses charged to expense. Loans which are
determined to be impaired are charged against this allowance and recoveries,
if any, are added to the allowance. A loan is considered to be impaired when,
based on current information and events, it is probable that the Company will
be unable to collect all amounts due according to the contractual terms of the
loan agreement. All of the Company's nonaccrual loans have been defined as
F-7
<PAGE>
impaired loans. The adequacy of the allowance for loan losses is determined by
management based upon a number of factors including, among others, analytical
reviews of loan loss experience in relationship to outstanding loans and
commitments; unfunded loan commitments; problem and nonperforming loans and
other loans presenting credit concerns; trends in loan growth, portfolio
composition and quality; use of appraisals to estimate the value of
collateral; and management's judgment with respect to current and expected
economic conditions and their impact on the existing loan portfolio. Changes
in the allowance may occur because of changing economic conditions and
economic prospects or financial position of borrowers. While there can be no
assurance that the allowance for loan losses will be adequate to cover all
losses from all loans, management believes that the allowance for loan losses
is adequate. While management uses all available information to estimate the
adequacy of the allowance for loan losses, the ultimate collectability of a
substantial portion of the loan portfolio and the need for future additions to
the allowance will be based upon changes in economic conditions and other
relevant factors. Recovery of the carrying value of such loans is dependent to
a great extent on conditions that may be beyond the Company's control. Actual
future losses could differ significantly from the amounts estimated by
management adversely affecting net income.
The Company adopted Financial Accounting Standards Board ("FASB") Statement
of Financial Accounting Standards ("SFAS") No. 114, Accounting by Creditors
for Impairment of a Loan, as amended by SFAS No. 118, Accounting by Creditors
for Impairment of a Loan-Income Recognition and Disclosure on January 1, 1995.
The allowance for loan losses related to loans that are identified for
evaluation in accordance with SFAS No. 114 is based on discounted cash flows
using the loan's initial effective interest rate or the fair value of the
collateral for certain collateral dependent loans. Smaller balance,
homogeneous loans, including mortgage, student and consumer, are collectively
evaluated for impairment. The amount of impairment determined in accordance
with SFAS No. 114 did not differ materially from amounts previously provided.
In addition, SFAS No. 114 does not affect the comparability of the credit risk
disclosures. This evaluation is inherently subjective as it requires material
estimates including the amounts and timing of future cash flows expected to be
received on impaired loans that may be susceptible to significant change.
LOAN SERVICING INCOME--The Company earns fees for servicing real estate
mortgages owned by others. These fees are generally calculated on the
outstanding principal balance of the loans serviced and are recorded as income
when received.
PREMISES AND EQUIPMENT--Premises and equipment are stated at cost less
accumulated depreciation and amortization. Major additions or improvements are
charged to the asset account while normal maintenance and repairs are expensed
as incurred. Depreciation and amortization are computed using the straight-
line and declining-balance methods based on asset lives which vary from three
to forty years.
OTHER REAL ESTATE OWNED--Other real estate owned is initially recorded at
fair value less the estimated costs to sell the asset. Write-downs of carrying
value required at the time of foreclosure are recorded as a charge to the
allowance for loan losses. Costs related to the development of such real
estate are capitalized whereas those related to holding the property are
expensed. Foreclosed property is subject to periodic reevaluation based upon
estimates of fair value. In determining the valuation of other real estate
owned, management obtains independent appraisals for significant properties.
Valuation adjustments are provided, as necessary, by charges to operations.
The net cost of operating other real estate owned, including provision for
losses, rental income, and gains and losses on sales of real estate, is not
significant.
Profit from sales of foreclosed property by the Company is recognized in
accordance with the provisions of SFAS No. 66, Accounting for Sales of Real
Estate. Losses are recognized as incurred.
INTANGIBLES--Intangibles consist of a core deposit intangible, goodwill and
mortgage servicing rights. The core deposit intangible is amortized over the
estimated life of the assumed deposits, ranging from four to seven years using
the level yield method. Goodwill is amortized using the straight-line method
over 15 years. Mortgage servicing rights are capitalized based upon the
observable market price at the point of origination. The servicing rights are
amortized on an individual loan by loan basis in proportion to, and over the
period of, estimated net servicing income. The capitalized amounts,
amortization and impairment of the mortgage servicing rights is not material.
At December 31, 1996 and 1995, the Bank has recorded cumulative amortization
of $1.0 million and $829,000, respectively.
TAXES ON INCOME--The Company and its subsidiary file consolidated income tax
returns. Deferred income taxes arise from temporary differences between
financial and tax bases of certain assets and liabilities. A
F-8
<PAGE>
valuation allowance will be established if it is more likely than not that
some portion of the deferred tax asset will not be realized.
EARNINGS PER COMMON SHARE--Earnings per common share is computed based upon
net income, after deducting the dividend requirements of preferred stock,
divided by the weighted average number of common shares outstanding during
each period. The impact of stock options on earnings per common share is not
materially dilutive. The weighted average of outstanding common shares for the
years ended December 31, 1996, 1995 and 1994 was 3,760,370, 3,755,228 and
3,755,228, respectively.
TRUST--The Company offers trust services to customers through its
relationship with the Trust Company of Oklahoma, a trust services company.
Property (other than cash on deposit) held by the Bank in a fiduciary or
agency capacity for its customers is not included in the consolidated
statements of financial condition as it is not an asset or liability of the
Bank.
CASH AND CASH EQUIVALENTS--For purposes of reporting cash flows, cash and
cash equivalents include cash on hand, amounts due from depository
institutions, and federal funds sold. Federal funds sold are sold for one day
periods.
LIQUIDITY--The Bank is required by the Federal Reserve Bank to maintain
average reserve balances. Cash and due from banks in the consolidated
statements of financial condition include restricted amounts of $5.1 and $6.2
million at December 31, 1996 and 1995, respectively.
At December 31, 1996, the Bank had available unsecured lines of credit from
correspondent banks and the Student Loan Marketing Association ("SLMA")
totaling $15.0 million and $20.0 million, respectively. Short-term borrowings
outstanding on these lines of credit totaled $1.8 million and $10.3 million,
with weighted average rates of 6.70% and 5.60% at December 31, 1996 and 1995,
respectively. The average balances outstanding on these lines of credit were
not material for either year.
RECLASSIFICATIONS--Certain reclassifications have been made to the prior
year amounts to conform to the current year presentation.
2. INVESTMENT SECURITIES
A summary of the amortized cost and fair values of investment securities
follows:
<TABLE>
<CAPTION>
DECEMBER 31, 1996
-----------------------------------------
AMORTIZED GROSS UNREALIZED APPROXIMATE
COST GAINS LOSSES FAIR VALUE
-----------------------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Held to Maturity:
U.S. Government and agency
obligations $72,345 $467 $100 $72,712
Obligations of state and political
subdivisions 11,244 52 45 11,251
------- -------- -------- -------
Total $83,589 $519 $145 $83,963
======= ======== ======== =======
Available for Sale:
U.S. Government and agency
obligations $37,440 $253 $ 50 $37,643
Obligations of state and political
subdivisions 1,892 17 0 1,909
Mortgage-backed securities 23,108 56 103 23,061
Other securities 979 170 0 1,149
------- -------- -------- -------
Total $63,419 $496 $153 $63,762
======= ======== ======== =======
</TABLE>
F-9
<PAGE>
<TABLE>
<CAPTION>
DECEMBER 31, 1995
----------------------------------------
AMORTIZED GROSS UNREALIZED APPROXIMATE
COST GAINS LOSSES FAIR VALUE
----------------------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Held to Maturity:
U.S. Government and agency
obligations $65,573 $ 641 $114 $66,100
Obligations of state and political
subdivisions 9,071 58 27 9,102
------- --------- ------- -------
Total $74,644 $ 699 $141 $75,202
======= ========= ======= =======
Available for Sale:
U.S. Government and agency
obligations $44,473 $ 763 $ 24 $45,212
Obligations of state and political
subdivisions 2,481 27 -- 2,508
Mortgage-backed securities 24,092 210 80 24,222
Other securities 977 135 10 1,102
------- --------- ------- -------
Total $72,023 $1,135 $114 $73,044
======= ========= ======= =======
</TABLE>
As required by law, investment securities are pledged to secure public and
trust deposits. Securities with an amortized cost of $134.9 million and $78.8
million were pledged to meet such requirements of $15.4 million and $15.8
million at December 31, 1996 and 1995, respectively. Any amount overpledged
can be released at any time.
A comparison of the amortized cost and approximate fair value of the
Company's investment securities by maturity date at December 31, 1996 follows:
<TABLE>
<CAPTION>
AVAILABLE FOR SALE HELD TO MATURITY
-------------------------------------------
AMORTIZED APPROXIMATE AMORTIZED APPROXIMATE
COST FAIR VALUE COST FAIR VALUE
-------------------------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
One year or less $11,957 $11,956 $18,701 $18,740
Two years through five years 36,901 37,000 64,888 65,223
Five years through ten years 13,575 13,650 -- --
More than ten years 7 7 -- --
Other securities not due at a
single maturity date 979 1,149 -- --
------- ------- ------- -------
Total $63,419 $63,762 $83,589 $83,963
======= ======= ======= =======
</TABLE>
Realized gross gains/(losses) on sales of investment securities were
$459,000, $(8,000) and $(3,000) during 1996, 1995 and 1994, respectively. The
gross proceeds from such sales of investment securities totaled approximately
$438,000, $6.0 million and $102,000 during 1996, 1995 and 1994, respectively.
A portion of the gain on sales of investment securities during 1996 occurred
when $4.6 million in Agency securities classified as "held to maturity" and
$11.2 million in Agency securities classified as "available for sale",
originally purchased at a discount, were called prior to their stated maturity
date.
In November 1995, the FASB issued a special report on A Guide to
Implementation of SFAS No. 115 on Accounting for Certain Investments in Debt
and Equity Securities--Questions and Answers (the "Guide"). The Guide provided
the Company a one-time opportunity to transfer securities from the held to
maturity category during the period November 15 through December 31, 1995.
After reconsideration of its original classifications, the Company
reclassified $32.7 million of investment securities from held to maturity to
available for sale. The fair value of such securities at the date of transfer
was $33.3 million and the net unrealized gain was $675,000.
F-10
<PAGE>
3. LOANS RECEIVABLE
Major classifications of loans are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------
1996 1995
------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Real estate mortgage:
Commercial $ 196,163 $ 160,126
One-to-four family residential 61,175 42,988
Real estate construction 54,369 33,159
Commercial 218,515 181,081
Installment and consumer:
Guaranteed student loans 61,959 67,388
Credit cards 20,839 21,869
Other 31,626 25,377
----------- -----------
644,646 531,988
Allowance for loan losses (7,139) (5,813)
----------- -----------
Loans receivable, net $ 637,507 $ 526,175
=========== ===========
</TABLE>
The Bank extends commercial and consumer credit primarily to customers in
the State of Oklahoma which subjects the loan portfolio to the general
economic conditions within this area. At December 31, 1996 and 1995,
substantially all of the Bank's loans, except for credit cards, are
collateralized with real estate, inventory, accounts receivable and/or other
assets or guaranteed by agencies of the United States Government.
Loans to individuals and businesses in the healthcare industry totaled
approximately $74.5 million, or 12% of total loans. Other notable
concentrations of credit within the loan portfolio include $25.2 million in
residential construction loans, $23.9 million in hotel/motel loans and $13.4
million in restaurant loans. In the event of total nonperformance by the
borrowers, the Company's accounting loss would be limited to the recorded
investment in the loans receivable reduced by proceeds received from
disposition of the related collateral.
The Company had loans which were held for sale of $12.3 million and $4.6
million at December 31, 1996 and 1995, respectively. These loans are carried
at cost, which does not exceed market. Guaranteed student loans are generally
sold to a single servicer. A substantial portion of the one-to-four family
residential loans and loan servicing rights are sold to two servicers.
The principal balance of loans for which accrual of interest has been
discontinued totaled approximately $4.6 million and $724,000 at December 31,
1996 and 1995, respectively. If interest on those loans had been accrued, the
interest income as reported in the accompanying consolidated statements of
operations would have increased by approximately $398,000, $48,000 and
$443,000 for 1996, 1995 and 1994, respectively. The $3.9 million increase in
nonaccrual loans from year-end 1995 was mainly the result of the
classification as nonaccrual of a group of related loans with a remaining net
book value of $3.4 million at December 31, 1996. Management believes these
loans are either adequately secured or have specific reserves allocated to
them.
Floating rate loans with original repricing terms within two years were
approximately $468.8 million and $401.8 million at December 31, 1996 and 1995,
respectively.
The unpaid principal balance of real estate mortgage loans serviced for
others totaled $119.0 million and $130.2 million at December 31, 1996 and
1995, respectively. The Bank maintained escrow accounts totaling $366,000 and
$697,000 for real estate mortgage loans serviced for others at December 31,
1996 and 1995, respectively.
F-11
<PAGE>
The allowance for loan losses is summarized as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------
1996 1995 1994
----------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Beginning balance $ 5,813 $ 4,959 $ 3,960
Provision for loan losses 3,100 2,000 1,800
Loans charged off (2,301) (1,803) (1,203)
Recoveries 527 657 402
-------- -------- --------
Total $ 7,139 $ 5,813 $ 4,959
======== ======== ========
</TABLE>
As of December 31, 1996 and 1995, impaired loans totaled $4.8 million and
$3.3 million and had been allocated a related allowance for loan loss of $2.0
million and $1.3 million, respectively. The average balance of impaired loans
totaled $3.8 million and $3.9 million and interest income recognized on
impaired loans totaled $37,000 and $367,000, respectively, for the years ended
December 31, 1996 and 1995.
Directors and officers of the Company and the Bank were customers of, and
had transactions with, the Bank in the ordinary course of business, and
similar transactions are expected in the future. All loans included in such
transactions were made on substantially the same terms, including interest
rates and collateral, as those prevailing at the time for comparable
transactions with other persons and did not involve more than normal risk of
loss or present other unfavorable features. Certain officers, directors,
employees, and companies in which they have partial ownership had indebtedness
to the Bank totaling $1.0 million and $2.2 million at December 31, 1996 and
1995, respectively. During 1996, $1.8 million of new loans were made to these
persons and repayments totaled $3.0 million.
4. PREMISES AND EQUIPMENT
These consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------
1996 1995
------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Land $ 1,214 $ 883
Buildings and improvements 3,869 3,540
Furniture, fixtures, and equipment 12,024 8,052
----------- -----------
17,107 12,475
Accumulated depreciation and amortization (7,458) (6,251)
----------- -----------
Premises and equipment, net $ 9,649 $ 6,224
=========== ===========
</TABLE>
5. INCOME TAXES
The components of taxes on income follow:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------
1996 1995 1994
----------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Current tax expense:
Federal $ 4,275 $ 3,366 $ 2,786
State 667 508 380
Deferred tax benefit:
Federal (543) (458) (350)
State (93) (80) (62)
-------- -------- --------
Taxes on income $ 4,306 $ 3,336 $ 2,754
======== ======== ========
</TABLE>
F-12
<PAGE>
The taxes on income reflected in the accompanying statements of operations
differs from the expected U.S. Federal income tax rates for the following
reasons:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------
1996 1995 1994
----------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Computed tax expense at 34% $ 4,032 $ 3,206 $ 2,685
Increase (decrease) in income taxes resulting
from:
Benefit of income not subject to U.S. Federal
income tax (210) (202) (129)
State income taxes, net of Federal income tax
benefit 379 281 212
Other 105 51 (14)
-------- -------- --------
Taxes on income $ 4,306 $ 3,336 $ 2,754
======== ======== ========
</TABLE>
Deferred tax expense (benefit) relating to temporary differences includes
the following components:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------
1996 1995 1994
----------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Provision for loan losses $ (754) $ (494) $ (462)
Accelerated depreciation 135 56 59
Intangibles (26) (25) (31)
Sales of other real estate owned 225 -- 91
Other (216) (75) (69)
-------- -------- --------
Total $ (636) $ (538) $ (412)
======== ======== ========
</TABLE>
Deferred tax assets of $2.2 million and $1.3 million at December 31, 1996
and 1995, respectively, are reflected in the accompanying consolidated
statements of financial condition in other assets. There were no valuation
allowances at December 31, 1996 or 1995. Temporary differences that give rise
to the deferred tax assets and (liabilities) include the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------
1996 1995
------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Allowance for loan losses $ 2,353 $ 1,599
Accumulated depreciation (676) (541)
Write-down on other real estate owned 35 260
Deferred compensation accrual 88 127
Intangibles 162 136
Other 401 146
----------- -----------
2,363 1,727
Deferred taxes (payable) receivable on investment
securities available for sale (137) (408)
----------- -----------
Total $ 2,226 $ 1,319
=========== ===========
</TABLE>
6. SHAREHOLDERS' EQUITY
At the 1996 annual shareholders' meeting, the shareholders of the Company
approved an amendment to the Company's Certificate of Incorporation to
increase the authorized shares of capital stock from 7,000,000 to 12,000,000,
consisting of 10,000,000 shares of common stock, par value $1.00 per share
("Common Stock"), and an aggregate of 2,000,000 shares of serial preferred
stock, par value $1.00 per share. The Company's Board of Directors can
determine the voting powers, dividend rights, liquidation preferences and
other limitations on the preferred stock prior to issuance. On July 31, 1995,
the Company issued 690,000 shares of 9.20%
F-13
<PAGE>
Redeemable, Cumulative Preferred Stock, Series A (the "Shares"), and received
net proceeds of $16.3 million. The liquidation preference of the Shares is $25
per share plus an amount equal to accrued and unpaid dividends. The Shares may
not be redeemed by the Company prior to September 1, 1998. Subject to prior
regulatory approval, the Shares may be redeemed at the option of the Company,
in whole or in part, on or after September 1, 1998, at a price equal to $25
per share plus accumulated unpaid dividends to the redemption date. Such
dividends are cumulative from the date of issuance and payable quarterly at
the rate of 9.20% of the original liquidation preference, or $2.30 per annum
per share. For the year ended December 31, 1996, the cumulative dividend
requirement was $1.6 million, $1.5 million of which was declared and paid.
The Company has reserved for issuance 200,000 shares of common stock
pursuant to the terms of Dividend Reinvestment and Employee Stock Purchase
Plans. The Dividend Reinvestment Plan allows shareholders of record a
convenient and economical method of increasing their equity ownership of the
Company. The Employee Stock Purchase Plan allows Company employees to acquire
additional common shares through payroll deductions. At December 31, 1996,
8,988 shares had been issued by these plans.
7. CAPITAL REQUIREMENTS
The Company and the Bank are subject to various regulatory capital
requirements administered by the federal banking agencies. Failure to meet
minimum capital requirements can initiate certain mandatory-and possibly
additional discretionary-actions by regulators, that if undertaken, could have
a direct material effect on the Company's and the Bank's financial statements.
Under capital adequacy guidelines and the regulatory framework for prompt
corrective action, the Company and the Bank must meet specific capital
guidelines that involve quantitative measures of the Company's and the Bank's
assets, liabilities and certain off-balance sheet items as calculated under
regulatory accounting principles. The Company's and the Bank's capital amounts
and classification are also subject to qualitative judgments by the regulators
about components, risk weightings and other factors.
The most recent notification from regulatory agencies categorized the Bank
as well-capitalized under the regulatory framework for prompt corrective
action. To be categorized as well-capitalized, the Bank must maintain minimum
total risk-based, Tier I risk-based, and Tier I leverage ratios as set forth
in the table below. Since the notification, there are no conditions or events
that have changed the Bank's category.
Quantitative measures established by regulation to ensure capital adequacy
require the Company and the Bank to maintain minimum amounts and ratios (set
forth in the table below) of total and Tier I capital (as defined in the
regulations) to risk-weighted assets and Tier I capital to average assets (all
as defined). The Company and the Bank meet all capital adequacy requirements
to be classified as well-capitalized as of December 31, 1996.
F-14
<PAGE>
The Company's and Bank's actual capital amounts and ratios are presented
below.
<TABLE>
<CAPTION>
TO BE WELL
CAPITALIZED
UNDER PROMPT
CORRECTIVE FOR CAPITAL
ACTUAL ACTION PROVISIONS ADEQUACY PURPOSES
----------------------------------------------------
AMOUNT RATIO AMOUNT RATIO AMOUNT RATIO
-----------------------------------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
As of December 31, 1996:
Total Capital (to risk-
weighted assets)
Company $71,376 11.40% N/A N/A $ 50,077 8.00%
Bank 69,139 11.06% $ 62,490 10.00% 49,992 8.00%
Tier I Capital (to risk-
weighted assets)
Company 63,886 10.21% N/A N/A 25,039 4.00%
Bank 62,000 9.92% 37,494 6.00% 24,996 4.00%
Leverage (Tier I capital
to average assets)
Company 63,886 7.77% N/A N/A 32,889 4.00%
Bank 62,000 7.56% 41,026 5.00% 32,804 4.00%
As of December 31, 1995:
Total Capital (to risk-
weighted assets)
Company $64,801 11.41% N/A N/A $ 45,435 8.00%
Bank 61,324 10.81% $ 56,729 10.00% 45,383 8.00%
Tier I Capital (to risk-
weighted assets)
Company 56,888 10.02% N/A N/A 22,710 4.00%
Bank 55,511 9.79% 34,021 6.00% 22,681 4.00%
Leverage (Tier I capital
to average assets)
Company 56,888 8.19% N/A N/A 27,784 4.00%
Bank 55,511 8.05% 34,479 5.00% 27,583 4.00%
</TABLE>
The approval of the Comptroller of the Currency is required if the total of
all dividends declared by the Bank in any calendar year exceeds the total of
its net profits of that year combined with its retained net profits of the
preceding two years. In addition, the Bank may not pay a dividend if, after
paying the dividend, the Bank would be under-capitalized. The Bank's maximum
amount of dividends available for payment totaled approximately $12.8 million
at December 31, 1996. Dividends declared by the Bank for the years ended
December 31, 1996, 1995 and 1994 did not exceed the threshold requiring
regulatory approval.
F-15
<PAGE>
8. STOCK OPTION PLAN
The Southwest Bancorp, Inc. 1994 Stock Option Plan (the "Stock Plan")
provides selected key employees with the opportunity to acquire common stock.
At December 31, 1996, the Company has reserved 375,522 shares under the Stock
Plan, of which 247,000 shares are under option at a weighted average exercise
price of $15.95 per share; none of the options have been exercised. During
1996 and 1995, the Company granted 35,000 and 30,000 shares, respectively. The
exercise price of each option equals the market price of the Company's common
stock on the date of the grant. An option's maximum term is ten years. At
December 31, 1996, there were four stock option arrangements outstanding:
<TABLE>
<CAPTION>
OPTION
NUMBER OF PRICE, RANGE
SHARES PER SHARE
----------------------
<S> <C> <C>
Outstanding at January 1, 1994 -- --
Granted 182,000 $ 12.75
Exercised -- --
Canceled/expired -- --
------- ------------
Outstanding at December 31, 1994 182,000 12.75
Granted 30,000 13.38
Exercised -- --
Canceled/expired -- --
------- ------------
Outstanding at December 31, 1995 212,000 12.84
Granted 35,000 18.50-19.25
Exercised -- --
Canceled/expired -- --
------- ------------
Outstanding at December 31, 1996 247,000 $ 15.95
======= ============
Total exercisable at December 31, 1995 72,000 $12.75-13.38
======= ============
Total exercisable at December 31, 1996 116,500 $12.75-19.25
======= ============
</TABLE>
The Company has estimated the fair value of the options granted using the
minimum value method prescribed by SFAS No. 123, Accounting for Stock-Based
Compensation. Had compensation cost been determined based on the fair value at
the grant date for the Company's stock options in accordance with SFAS No.
123, the proforma net income and earnings per common share would have been
$7.458 million and $1.56 for 1996 and $5.911 million and $1.40 for 1995,
respectively.
The Company has elected to continue to account for its stock options using
the intrinsic value method prescribed by APB Opinion No. 25 and related
interpretations. Accordingly, no compensation cost has been recognized for its
stock option plans.
9. EMPLOYEE BENEFITS
The Company, at the discretion of its Board of Directors, may, under its
profit-sharing plan, contribute annually an amount not exceeding 15% of the
total annual compensation of all participants. The Company made contributions
of $671,000, $680,000 and $589,000 in 1996, 1995 and 1994, respectively.
The Company has a deferred compensation plan for key management employees.
The Board of Directors of the Company administered the plan and awarded
performance units ("Units") at its discretion. Employees awarded Units were
entitled to receive compensation from the Bank based on the earnings of the
Company. The ultimate amount payable to employees is based on cumulative
earnings of the Company over certain five year periods. The 1996, 1995 and
1994 amounts charged to compensation expense under these plans were $45,000,
$86,000 and $132,000, respectively. The final payout under this plan will be
made in 1997, after which, no further Units will be outstanding.
F-16
<PAGE>
10. OPERATING LEASES
The Company leases certain equipment and facilities for its operations.
Future minimum annual rental payments required under operating leases that
have initial or remaining lease terms in excess of one year as of December 31,
1996 follow:
<TABLE>
<S> <C>
1997 $957,000
1998 619,000
1999 362,000
2000 223,000
2001 141,000
</TABLE>
The total rental expense was $1.0 million, $803,000 and $616,000 in 1996,
1995 and 1994, respectively.
11. FAIR VALUE DISCLOSURES OF FINANCIAL INSTRUMENTS
The following disclosure of the estimated fair value of financial
instruments is made in accordance with the requirements of SFAS No. 107,
Disclosures About Fair Value of Financial Instruments. The estimated fair
value amounts have been determined by the Company using available market
information and appropriate valuation methodologies. However, considerable
judgment is necessarily required to interpret market data to develop the
estimates of fair value. Accordingly, the estimates presented herein are not
necessarily indicative of the amounts the Company could realize in a current
market exchange. The use of different market assumptions and/or estimation
methodologies may have a material effect on the estimated fair value amounts.
CASH AND CASH EQUIVALENTS--For cash and cash equivalents, the carrying
amount is a reasonable estimate of fair value.
INVESTMENT SECURITIES--The fair value of U.S. Government and agency
obligations, other securities and mortgage-backed securities is estimated
based on quoted market prices or dealer quotes. The fair value for other
investments such as obligations of state and political subdivisions is
estimated based on quoted market prices for similar investment instruments.
LOANS RECEIVABLE--Fair values are estimated for certain homogeneous
categories of loans adjusted for differences in loan characteristics. The
Bank's loans have been aggregated by categories consisting of commercial, real
estate, student, credit card and other consumer. The fair value estimate for
student loans is the current historical cost carrying value as such loans are
typically sold in the secondary market at par value. The fair value of all
other loans is estimated by discounting the cash flows using credit and
interest rate risks inherent in the loan category and interest rates currently
offered for loans with similar terms and credit risks.
ACCRUED INTEREST RECEIVABLE--The carrying amount is a reasonable estimate of
fair value for accrued interest receivable.
DEPOSITS--The fair value of demand deposits, savings accounts and certain
money market deposits is the amount payable on demand at the statement of
financial condition date. The fair value of fixed-maturity certificates of
deposits is estimated using the rates currently offered for deposits of
similar remaining maturities.
SHORT-TERM BORROWINGS--The fair values of short-term borrowings and federal
funds purchased are the amounts payable at the statement of financial
condition date, as the carrying amount is a reasonable estimate of fair value.
OTHER LIABILITIES AND ACCRUED INTEREST PAYABLE--The estimated fair value of
other liabilities, which primarily include trade accounts payable, and accrued
interest payable approximates their carrying value.
COMMITMENTS--Commitments to extend credit, standby letters of credit and
financial guarantees written or other items have short maturities and
therefore have no significant fair values.
F-17
<PAGE>
The carrying values and estimated fair values of the Company's financial
instruments follow:
<TABLE>
<CAPTION>
DECEMBER 31, 1996 DECEMBER 31, 1995
----------------- -----------------
CARRYING FAIR CARRYING FAIR
VALUES VALUES VALUES VALUES
-----------------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Cash and cash equivalents $ 22,914 $ 22,914 $ 20,789 $ 20,789
Investment securities:
Held to maturity 83,589 83,963 74,644 75,202
Available for sale 63,762 63,762 73,044 73,044
Loans receivable 637,507 643,927 526,175 536,064
Accrued interest receivable 7,400 7,400 7,117 7,117
Deposits 753,945 756,093 634,387 637,840
Accrued interest payable 5,061 5,061 4,266 4,266
Other liabilities 4,892 4,892 11,854 11,854
Commitments -- -- -- --
</TABLE>
12. FINANCIAL INSTRUMENTS WITH OFF-BALANCE SHEET RISK
In the normal course of business, the Company makes use of a number of
different financial instruments to help meet the financial needs of its
customers. In accordance with generally accepted accounting principles, these
transactions are not presented in the accompanying consolidated financial
statements and are referred to as off-balance sheet instruments. These
transactions and activities include commitments to extend lines of commercial
and real estate mortgage credit, standby and commercial letters of credit and
available credit card lines of credit. The following table provides a summary
of the Company's off-balance sheet financial instruments:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1996 1995
-----------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Commitments to extend commercial and real estate
mortgage credit $ 154,041 $ 86,563
Standby and commercial letters of credit 4,214 3,578
Credit card lines of credit 348,144 347,455
----------- -----------
Total $ 506,399 $ 437,596
=========== ===========
</TABLE>
A loan commitment is a binding contract to lend up to a maximum amount for a
specified period of time provided there is no violation of any financial,
economic or other terms of the contract. A standby letter of credit obligates
the Company to honor a financial commitment by issuing a guarantee to a third
party should the Company's customer fail to perform. Many loan commitments and
most standby letters of credit expire unfunded, and, therefore, total
commitments do not represent future funding obligations of the Company. Loan
commitments and letters of credit are made under normal credit terms,
including interest rates and collateral prevailing at the time, and usually
require the payment of a fee by the customer. Commercial letters of credit are
commitments generally issued to finance the movement of goods between buyers
and sellers. The Bank's exposure to credit loss, assuming commitments are
funded, in the event of nonperformance by the other party to the financial
instrument is represented by the contractual amount of those instruments. The
Bank has an agreement with another financial institution to purchase $285.0
million and $284.9 million of unadvanced credit card lines of credit at
December 31, 1996 and 1995, respectively, if such credit card lines of credit
are funded. Such commitments are made with the same terms as similarly funded
extensions of credit including collateral, rates and maturities. The Bank does
not anticipate any material losses as a result of the commitments.
13. COMMITMENTS AND CONTINGENCIES
The Company is a party to various legal actions normally associated with
financial institutions, the aggregate of which, in management's and legal
counsel's opinion, would not be material to the consolidated financial
condition or results of operations of the Company.
F-18
<PAGE>
At periodic intervals, the Office of the Comptroller of the Currency and the
Federal Reserve Bank routinely examine the Company's and the Bank's financial
statements as part of their legally prescribed oversight of the banking
industry. Based on these examinations, the regulators can direct that the
Company's and the Bank's financial statements be adjusted in accordance with
their findings.
The Bank has adopted a Severance Compensation Plan (the "Plan") for the
benefit of certain officers and key members of management. The Plan's purpose
is to protect and retain certain qualified employees in the event of a change
in control (as defined) and to reward those qualified employees for loyal
service to the Bank by providing severance compensation to them upon their
involuntary termination of employment after a change in control of the Bank.
At December 31, 1996, the Bank has not recorded any amounts in the
consolidated financial statements relating to the Plan. If a change of control
were to occur, the maximum amount payable to certain officers and key members
of management would approximate $934,000.
14. SUPPLEMENTAL CASH FLOWS INFORMATION
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------
1996 1995 1994
---------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Cash paid for interest $ 32,038 $ 26,913 $ 15,425
Cash paid for taxes on income 4,390 3,600 2,817
Loans originated to finance the sale of other
real estate owned -- 68 --
Loans transferred to other real estate owned 21 15 --
Reclassification of investment securities from
held to maturity to available for sale -- 32,672 --
Unrealized gain/(loss) on investment securities
available for sale, net of tax (407) 1,489 (1,076)
</TABLE>
15. ACCOUNTING STANDARD ISSUED BUT NOT YET ADOPTED
In June 1996, the FASB issued SFAS No. 125, Accounting for Transfers and
Servicing of Financial Assets and Extinguishments of Liabilities. SFAS No. 125
requires the Company to recognize the financial and servicing assets it
controls and liabilities it has incurred, derecognize financial assets when
control has been surrendered, and derecognize liabilities when extinguished.
In December 1996, the FASB adopted an amendment to SFAS No. 125 that will
delay for one year certain provisions of the Statement. As amended, SFAS No.
125 is effective for transfers and servicing of financial assets and
extinguishments of liabilities occurring after December 31, 1997. The Company
will adopt SFAS No. 125 for transfers and servicing of financial assets and
extinguishments of liabilities when required. Management believes that
adoption of SFAS No. 125 will not have a material impact on the Company's
consolidated financial position or results of operations.
F-19
<PAGE>
16. PARENT COMPANY CONDENSED FINANCIAL INFORMATION
Following are the condensed financial statements of Southwest Bancorp, Inc.
("Parent Company only") for the periods indicated:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1996 1995
-----------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Statements of Financial Condition
Assets:
Cash and due from banks $ 754 $ 297
Investment in subsidiary bank 62,808 56,878
Investment securities, available for sale 1,446 2,984
Other assets 423 435
----------- -----------
Total $ 65,431 $ 60,594
=========== ===========
Liabilities $ 399 $ 237
Shareholders' Equity
Preferred 17,382 17,382
Common 47,650 42,975
----------- -----------
Total $ 65,431 $ 60,594
=========== ===========
</TABLE>
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------
1996 1995 1994
--------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Statements of Operations
Income:
Cash dividends from subsidiary bank $ 1,053 $ 901 $ 781
Dividend income 22 28 25
Investment income 116 98 46
-------- -------- --------
Total income 1,191 1,027 852
Security gains/(losses) 288 -- (3)
General and administrative expenses 150 95 88
-------- -------- --------
Total income before tax expense and equity in
undistributed income of subsidiary bank 1,329 932 761
Taxes on income 99 4 (14)
-------- -------- --------
Income before equity in undistributed income of
subsidiary bank 1,230 928 775
Equity in undistributed income of subsidiary bank 6,322 5,164 4,369
-------- -------- --------
Net income $ 7,552 $ 6,092 $ 5,144
======== ======== ========
Net income available to common shareholders $ 5,965 $ 5,426 $ 5,144
======== ======== ========
</TABLE>
F-20
<PAGE>
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------
1996 1995 1994
--------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Statements of Cash Flows
Operating activities:
Net income $ 7,552 $ 6,092 $ 5,144
Equity in undistributed
income of subsidiary
bank (6,322) (5,164) (4,369)
Other, net 140 (421) (125)
------- -------- -------
Net Cash provided by
operating activities 1,370 507 650
------- -------- -------
Investing activities:
Available for sale
securities:
Purchases (1,806) (3,146) --
Sales -- -- 102
Maturities 3,325 1,245 --
------- -------- -------
Net cash provided by
(used in) investing
activities 1,519 (1,901) 102
------- -------- -------
Financing activities:
Proceeds from issuance
of
Preferred stock -- 16,322 --
Common stock 170 -- --
Capital contribution to
Bank -- (13,500) --
Cash dividends paid:
Preferred stock (1,587) (533) --
Common stock (1,015) (864) (697)
------- -------- -------
Net cash provided by
(used in) financing
activities (2,432) 1,425 (697)
------- -------- -------
Net increase in cash and
cash equivalents 457 31 55
Cash and cash
equivalents:
Beginning of year 297 266 211
------- -------- -------
End of year $ 754 $ 297 $ 266
======= ======== =======
</TABLE>
* * * * * *
F-21
<PAGE>
SOUTHWEST BANCORP, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
(DOLLARS IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
--------- ------------
<S> <C> <C>
ASSETS
Cash and due from banks $ 28,212 $ 22,914
Federal funds sold 15,800 --
-------- --------
Cash and cash equivalents 44,012 22,914
Investments securities:
Held to maturity, approximate fair value of $84,598
(1997) and $83,963 (1996) 84,787 83,589
Available for sale, approximate amortized cost of
$65,060 (1997) and $63,419 (1996) 64,897 63,762
Loans receivable, net of allowance for loan losses of
$8,484 (1997) and $7,139 (1996) 668,015 637,507
Accrued interest receivable 8,007 7,400
Premises and equipment, net 12,696 9,649
Other assets 5,395 4,296
-------- --------
Total assets $887,809 $829,117
======== ========
LIABILITIES & SHAREHOLDERS' EQUITY
Deposits:
Noninterest-bearing demand $ 85,943 $ 83,729
Interest-bearing demand 37,054 34,309
Money market accounts 93,467 86,910
Savings accounts 4,002 4,086
Time deposits 594,071 544,911
-------- --------
Total deposits 814,537 753,945
-------- --------
Income taxes payable 14 187
Accrued interest payable 5,120 5,061
Other liabilities 3,599 4,892
-------- --------
Total Liabilities 823,270 764,085
-------- --------
Commitments and contingencies -- --
Shareholders' equity:
Serial preferred stock--
Series A, 9.20% Redeemable, Cumulative Preferred
Stock; $1 par value; 1,000,000 shares authorized;
liquidation value $17,250,000; 690,000 shares
issued and outstanding 690 690
Series B, $1 par value; 1,000,000 shares authorized;
none issued -- --
Common stock--$1 par value; 10,000,000 shares
authorized; issued and outstanding 3,766,515 (1997)
and 3,764,216 (1996) 3,767 3,764
Capital surplus 24,377 24,332
Retained earnings 35,803 36,041
Unrealized gain/(loss) on investment securities
available for sale, net of tax (98) 205
-------- --------
Total shareholders' equity 64,539 65,032
-------- --------
Total liabilities & shareholders' equity $887,809 $829,117
======== ========
</TABLE>
F-22
<PAGE>
SOUTHWEST BANCORP, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31,
1997 1996
---------- ----------
<S> <C> <C>
Interest income:
Interest and fees on loans $ 15,516 $ 12,832
Investment securities:
U.S. Government and agency obligations 1,776 1,640
State and political subdivisions 136 140
Mortgage-backed securities 327 390
Other securities 15 13
Federal funds sold 81 74
---------- ----------
Total interest income 17,851 15,089
Interest expense:
Interest-bearing demand 209 203
Money market accounts 919 673
Savings accounts 25 30
Time deposits 8,036 6,622
Other borrowed money 70 58
---------- ----------
Total interest expense 9,259 7,586
---------- ----------
Net interest income 8,592 7,503
Provision for loan losses 3,001 875
---------- ----------
Net interest income after provision for loan losses 5,591 6,628
Other income:
Service charges and fees 752 708
Credit cards 193 207
Other noninterest income 143 117
Gain on sales of loans receivable 326 448
Gain/(loss) on sales of investment securities -- 122
---------- ----------
Total other income 1,414 1,602
Other expenses:
Salaries and employee benefits 3,487 2,828
Occupancy 1,043 759
FDIC and other insurance 63 132
Credit cards 76 104
General and administrative 1,690 1,396
---------- ----------
Total other expenses 6,359 5,219
---------- ----------
Income before taxes 646 3,011
Taxes on income 186 1,079
---------- ----------
Net income $ 460 $ 1,932
========== ==========
Net income available to common shareholders $ 63 $ 1,535
========== ==========
Earnings per common share $ 0.02 $ 0.41
========== ==========
Weighted average common shares outstanding 3,766,172 3,756,861
========== ==========
</TABLE>
F-23
<PAGE>
SOUTHWEST BANCORP, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31,
1997 1996
---------- ----------
<S> <C> <C>
Operating activities:
Net income $ 460 $ 1,932
Adjustments to reconcile net income to net cash
provided from operating activities:
Provision for loan losses 3,001 875
Depreciation and amortization expense 381 288
Amortization of premiums and accretion of
discount on securities, net 43 42
Amortization of intangibles 45 26
(Gain) Loss on sales of securities -- (122)
(Gain) Loss on sales of loans receivable (326) (448)
(Gain) Loss on sales of premises/equipment -- (1)
(Gain) Loss on other real estate owned, net -- --
Proceeds from sales of residential mortgage loans 14,839 8,477
Residential mortgage loans originated for resale (11,521) (11,364)
Changes in assets and liabilities:
Accrued interest receivable (607) (83)
Other assets (574) (3,713)
Income taxes payable (173) 1,046
Accrued interest payable 59 (325)
Other liabilities (1,331) (9,184)
---------- ----------
Net cash (used in) provided from operating
activities 4,296 (12,554)
---------- ----------
Investing activities:
Proceeds from sales of held to maturity securities -- --
Proceeds from sales of available for sale
securities -- --
Proceeds from principal repayments and maturities:
Held to maturity securities 2,006 11,656
Available for sale securities 4,001 10,049
Purchases of held to maturity securities (3,260) (13,620)
Purchases of available for sale securities (5,628) (3,882)
Loans originated and principal repayments, net (48,186) (14,674)
Proceeds from sales of guaranteed student loans 11,317 12,445
Purchases of premises and equipment (3,428) (619)
Proceeds from sales of premises and equipment -- 3
Proceeds from sales of other real estate -- 49
---------- ----------
Net cash (used in) provided from investing
activities (43,178) 1,407
---------- ----------
Financing activities:
Net increase in deposits 60,592 20,280
Net proceeds from issuance of common stock 48 35
Net proceeds from issuance of preferred stock -- --
Common stock dividends paid (263) (225)
Preferred stock dividends paid (397) (397)
---------- ----------
Net cash provided from financing activities 59,980 19,693
---------- ----------
Net increase (decrease) in cash and cash equivalents 21,098 8,546
Cash and cash equivalents:
Beginning of period 22,914 20,789
---------- ----------
End of period $ 44,012 $ 29,335
========== ==========
</TABLE>
F-24
<PAGE>
SOUTHWEST BANCORP, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(DOLLARS IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
UNREALIZED
GAIN (LOSS) TOTAL
ON AVAILABLE SHARE-
PREFERRED STOCK COMMON STOCK CAPITAL RETAINED FOR SALE HOLDERS'
SHARES AMOUNT SHARES AMOUNT SURPLUS EARNINGS SECURITIES EQUITY
<S> <C> <C> <C> <C> <C> <C> <C> <C>
-------------------------------------------------------------------------
Balance, January 1, 1996 690,000 $ 690 3,755,228 $3,755 $24,171 $31,129 $612 $60,357
Cash dividends paid:
Preferred, $0.575 per
share -- -- -- -- -- (397) -- (397)
Cash dividends declared:
Common, $0.07 per share -- -- -- -- -- (263) -- (263)
Common stock issued:
Employee Stock Purchase
Plan -- -- 760 1 13 -- -- 14
Dividend Reinvestment
Plan -- -- 1,154 1 20 -- -- 21
Change in unrealized
gain (loss) on
available for sale
securities, net of tax -- -- -- -- -- -- (388) (388)
Net income -- -- -- -- -- 1,932 -- 1,932
-------------------------------------------------------------------------
Balance, March 31, 1996 690,000 $ 690 3,757,142 $3,757 $24,204 $32,401 $224 $61,276
=========================================================================
Balance, January 1, 1997 690,000 $ 690 3,764,216 $3,764 $24,332 $36,041 $205 $65,032
Cash dividends paid:
Preferred, $0.575 per
share -- -- -- -- -- (397) -- (397)
Cash dividends declared:
Common, $0.08 per share -- -- -- -- -- (301) -- (301)
Common stock issued:
Employee Stock Purchase
Plan -- -- 956 1 19 -- -- 20
Dividend Reinvestment
Plan -- -- 1,343 2 26 -- -- 28
Change in unrealized
gain (loss) on
available for sale
securities, net of tax -- -- -- -- -- -- (303) (303)
Net income -- -- -- -- -- 460 -- 460
-------------------------------------------------------------------------
Balance, March 31, 1997 690,000 $ 690 3,766,515 $3,767 $24,377 $35,803 $(98) $64,539
=========================================================================
</TABLE>
F-25
<PAGE>
SOUTHWEST BANCORP, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1: GENERAL
The accompanying unaudited consolidated financial statements were prepared in
accordance with instructions for Form 10-Q and, therefore, do not include all
information and footnotes necessary for a complete presentation of financial
position, results of operations, changes in shareholders' equity, and cash
flows in conformity with generally accepted accounting principles. However,
the financial statements include all adjustments (consisting only of normal
recurring accruals) which, in the opinion of management, are necessary for a
fair presentation. The results of operations and cash flows for the three
months ended March 31, 1997 and 1996 are not necessarily indicative of the
results to be expected for the full year. These financial statements should be
read in conjunction with the financial statements and notes thereto included
in the Southwest Bancorp, Inc. Annual Report on Form 10-K for the year ended
December 31, 1996.
NOTE 2: PRINCIPLES OF CONSOLIDATION
The accompanying unaudited consolidated financial statements include the
accounts of Southwest Bancorp, Inc. (the Company) and its wholly owned
subsidiary, The Stillwater National Bank and Trust Company (the Bank). All
significant intercompany transactions and balances have been eliminated in
consolidation.
NOTE 3: RECENTLY ADOPTED ACCOUNTING STANDARDS
In February 1997, the Financial Accounting Standards Board (the "FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 129, Disclosure of
Information About Capital Structure. SFAS No. 129 establishes standards for
disclosure of information regarding an entity's capital structure. The
adoption of SFAS No. 129 did not affect the Company's consolidated financial
position or results of operations.
NOTE 4: ACCOUNTING STANDARDS ISSUED BUT NOT YET ADOPTED
In June 1996, the FASB issued SFAS No. 125, Accounting for Transfers and
Servicing of Financial Assets and Extinguishments of Liabilities. SFAS No. 125
requires the Company to recognize the financial and servicing assets it
controls and liabilities it has incurred, derecognize financial assets when
control has been surrendered, and derecognize liabilities when extinguished.
The Company will adopt SFAS No. 125 for transfers and servicing of financial
assets and extinguishment of liabilities occurring after December 31, 1997 as
required. Management believes that adoption of SFAS No. 125 will not have a
material impact on the Company's consolidated financial position or results of
operations.
In February 1997, the FASB issued SFAS No. 128, Earnings Per Share, which
establishes standards for computing and presenting earnings per share. SFAS
No. 128 is effective for periods ending after December 15, 1997. Management
believes that SFAS No. 128 will not have a significant effect on the Company's
calculation of earnings per share considering its current capital structure.
F-26
<PAGE>
NOTE 5: ALLOWANCE FOR LOAN LOSSES
Activity in the allowance for loan losses is shown below for the indicated
periods.
<TABLE>
<CAPTION>
FOR THE THREE FOR THE
MONTHS ENDED YEAR ENDED
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Balance at beginning of period $ 7,139 $ 5,813
Loans charged-off:
Real estate mortgage 104 148
Real estate construction -- --
Commercial 1,350 1,064
Installment and consumer 318 1,089
-------- --------
Total charge-offs 1,772 2,301
Recoveries:
Real estate mortgage 36 25
Real estate construction -- --
Commercial 50 288
Installment and consumer 30 214
-------- --------
Total recoveries 116 527
-------- --------
Net loans charged-off 1,656 1,774
Provision for loan losses 3,001 3,100
-------- --------
Balance at end of period $ 8,484 $ 7,139
======== ========
Loans outstanding:
Average $669,424 $580,590
End of period 676,499 644,646
Net charge-offs to total average loans
(annualized) 1.00% 0.31%
Allowance for loan losses to total loans 1.25% 1.11%
</TABLE>
Nonperforming assets and other risk elements of the loan portfolio are shown
below as of the indicated dates.
<TABLE>
<CAPTION>
AS OF AS OF
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Nonaccrual loans (1) $4,745 $4,635
Past due 90 days or more (2) 1,748 1,437
Restructured terms 568 577
------ ------
Total nonperforming loans 7,061 6,649
Other real estate owned 432 64
------ ------
Total nonperforming assets $7,493 $6,713
====== ======
Nonperforming loans to loans receivable 1.04% 1.03%
Allowance for loan losses to nonperforming
loans 120.15% 107.37%
Nonperforming assets to loans receivable and
other real estate owned 1.11% 1.04%
</TABLE>
(1) The government-guaranteed portion of loans included in these totals was $0
(1997) and $345 (1996).
(2) The government-guaranteed portion of loans included in these totals was
$723 (1997) and $0 (1996).
F-27
<PAGE>
The allowance for loan losses is established through a provision for loan
losses charged to expense. Charge-offs of loan amounts determined by
management to be uncollectible or impaired decrease the allowance and
recoveries of previous charge-offs, if any, are added to the allowance. A loan
is considered to be impaired when, based on current information and events, it
is probable that the Company will be unable to collect all amounts due
according to the contractual terms of the loan agreement. All of the Company's
nonaccrual loans have been defined as impaired loans. The adequacy of the
allowance for loan losses is determined by management based upon a number of
factors including, among others, analytical reviews of loan loss experience in
relationship to outstanding loans and commitments; unfunded loan commitments;
problem and nonperforming loans and other loans presenting credit concerns;
trends in loan growth, portfolio composition and quality; use of appraisals to
estimate the value of collateral; and management's judgment with respect to
current and expected economic conditions and their impact on the existing loan
portfolio. Changes in the allowance may occur because of changing economic
conditions and economic prospects or financial position of borrowers. While
there can be no assurance that the allowance for loan losses will be adequate
to cover all losses from all loans, management believes that the allowance for
loan losses is adequate. While management uses all available information to
estimate the adequacy of the allowance for loan losses, the ultimate
collectability of a substantial portion of the loan portfolio and the need for
future additions to the allowance will be based upon changes in economic
conditions and other relevant factors. Recovery of the carrying value of such
loans is dependent to a great extent on conditions that may be beyond the
Company's control. Actual future losses could differ significantly from the
amounts estimated by management adversely affecting net income.
NOTE 6: LOANS RECEIVABLE
The Bank extends commercial and consumer credit primarily to customers in the
State of Oklahoma which subjects the loan portfolio to the general economic
conditions within this area. At March 31, 1997 and December 31, 1996,
substantially all of the Bank's loans, except for credit cards, are
collateralized with real estate, inventory, accounts receivable and/or other
assets or guaranteed by agencies of the United States Government.
At March 31, 1997, loans to individuals and businesses in the healthcare
industry totaled approximately $79.0 million, or 12% of total loans. Other
notable concentrations of credit within the loan portfolio include $23.8
million, or 4% of total loans, in hotel/motel loans, $23.4 million, or 3% of
total loans, in residential construction loans and $15.8 million, or 2% of
total loans, in restaurant loans. In the event of total nonperformance by the
borrowers, the Company's accounting loss would be limited to the recorded
investment in the loans receivable reduced by proceeds received from
disposition of the related collateral.
The principal balance of loans for which accrual of interest has been
discontinued totaled approximately $4.7 million at March 31, 1997. During the
first three months of 1997, $103,000 in interest income was received on
nonaccruing loans. If interest on those loans had been accrued, total interest
income of $171,000 would have been recorded.
Those performing loans considered potential problem loans, as defined and
identified by management, amounted to approximately $20.7 million at March 31,
1997, compared to $23.0 million at December 31, 1996. The amount of performing
loans that were considered potential problem loans at December 31, 1996 was
previously incorrectly disclosed as $14.9 million, as a result of a
computational error made in the preparation of the disclosure. The total
amount of such loans recognized on the books of the Company at December 31,
1996 was $23.0 million. Although these are loans where known information about
the borrowers' possible credit problems cause management to have doubts as to
their ability to comply with the present loan repayment terms, most are well
collateralized and are not believed to present significant risk of loss. The
Company's loan portfolio contains a significant number of commercial and
commercial real estate loans with relatively large balances. The deterioration
of one or a few of such loans may cause a significant increase in potential
problem loans or in nonperforming loans.
F-28
<PAGE>
- -------------------------------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary....................................................... 5
Summary Consolidated Financial Data...................................... 10
Risk Factors............................................................. 11
Use of Proceeds.......................................................... 18
Market for the Preferred Securities...................................... 18
Accounting Treatment..................................................... 18
Capitalization........................................................... 20
The Company.............................................................. 21
Selected Consolidated Financial Data..................................... 22
Management's Discussion and Analysis of Financial Condition and Results
of Operation............................................................ 24
Description of the Preferred Securities.................................. 48
Description of the Subordinated Debentures............................... 57
Description of the Guarantee............................................. 66
Relationship Among the Preferred Securities, Subordinated Debentures and
the Guarantee........................................................... 68
Certain Federal Income Tax Consequences.................................. 69
ERISA Considerations..................................................... 73
Underwriting............................................................. 74
Validity of Securities................................................... 75
Experts.................................................................. 75
Incorporation of Certain Documents by Reference.......................... 75
Available Information.................................................... 76
Index to Consolidated Financial Statements............................... F-1
</TABLE>
---------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY SBI CAPITAL, THE COMPANY OR THE UNDERWRITER. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE OF THIS PROSPECTUS. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OFFERED HEREBY IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
870,000 PREFERRED SECURITIES
SBI CAPITAL TRUST
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED, AS DESCRIBED HEREIN, BY
SOUTHWEST BANCORP, INC.
Parent Company of
[LOGO OF OKLAHOMA'S STILLWATER NATIONAL BANK & TRUST COMPANY APPEARS HERE]
---------------
$21,750,000
% SUBORDINATED DEBENTURES
OF
SOUTHWEST BANCORP, INC.
---------------
Prospectus
May , 1997
---------------
STIFEL, NICOLAUS & COMPANY
INCORPORATED
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses payable by the Company in connection with the
Offering described in this Registration Statement (other than underwriting
discounts and commissions) are as follows:
<TABLE>
<S> <C>
SEC Registration Fee.........................................$ 8,625
NASD Filing Fee.............................................. 3,000
Nasdaq Listing Fee........................................... 10,000
*Blue Sky Filing Fees and Expenses (Including counsel fees).. 10,000
*Legal Fees.................................................. 125,000
*Printing and Engraving...................................... 50,000
*Accounting Fees and Expenses................................ 25,000
*Other Expenses.............................................. 18,375
---------
Total.........................................$ 250,000
=========
-------------
* Estimated
</TABLE>
Item 15. Indemnification of Directors and Officers
Section 1031 of the Oklahoma General Corporation Act sets forth
circumstances under which directors, officers, employees and agents may be
insured or indemnified against liability which they may incur in their
capacities.
Article XV of the Amended and Restated Certificate of Incorporation of
the Company provides that the Company shall indemnify any individual who is or
was a director, officer, employee or agent of the Company, and any individual
who serves or served at the Company's request as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, in any proceeding in which the individual is made a
party as a result of his service in such capacity, if the individual acted in
good faith and in a manner reasonably believed to be in, or not opposed to, the
best interests of the Company and, with respect to any criminal proceeding, he
had no reasonable cause to believe his conduct was unlawful, unless such
indemnification would be prohibited by law. An individual will not be
indemnified in connection with a proceeding by or in the right of the Company in
which the individual was adjudged liable to the Company, unless the court in
which the suit was brought determines he is fairly and reasonably entitled to
indemnification in view of all of the relevant circumstances.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
*1 Form of Underwriting Agreement
*3.1 Amended and Restated Certificate of Incorporation of Southwest
Bancorp, Inc. (incorporated by reference to Exhibit 3.1 to
Quarterly Report on Form 10-Q for the quarter ended July 31,
1996)
*3.2 Bylaws of Southwest Bancorp, Inc. (incorporated by reference to
Exhibit 3.2 to Registration Statement on Form S-1 (File No.
33-71168))
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Number Description
- ------ -----------
<S> <C>
4.1 Form of Indenture for Subordinated Debentures, to be dated May ___, 1997
4.2 Form of Subordinated Debenture (included as an exhibit to Exhibit 4.1)
*4.3 Certificate of Trust of SBI Capital Trust, dated as of May 8, 1997
*4.4 Trust Agreement, dated as of May 8, 1997, of SBI Capital Trust
*4.5 Form of Amended and Restated Trust Agreement of SBI Capital Trust, to be
dated as of __________, 1997
*4.6 Form of Preferred Security Certificate of SBI Capital Trust (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 Form of Opinion of Kennedy & Baris, L.L.P.
*5.2 Form of Opinion of Richards, Layton & Finger
*8 Form of Tax Opinion of Kennedy & Baris, L.L.P.
*10.1 Southwest Bancorp, Inc. 1992 Performance Unit Plan (incorporated by
reference to Exhibit 10.1 to Registration Statement on Form S-1 (File
No. 33-71168))
*10.2 Severance Compensation Plan (incorporated by reference to Exhibit 10.2 to
Registration Statement on Form S-1 (File No. 33-71168))
*10.3 Southwest Bancorp, Inc. 1994 Stock Option Plan (incorporated by reference
to Exhibit 10.3 to Annual Report on Form 10-K for the fiscal year ended
December 31, 1993)
*10.4 Southwest Bancorp, Inc. Employee Stock Purchase Plan (incorporated by
reference to Exhibit 4.1 to Registration Statement on Form S-8 (File
No. 33-97850))
*12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche LLP, Independent Auditors
*23.2 Consents of Kennedy & Baris, L.L.P. (included in Exhibits 5.1 and 8)
*23.3 Consent of Richards, Layton & Finger (included in Exhibit 5.2)
*24 Power of Attorney
*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
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
*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>
- ----------------------------
* Previously filed.
Item 17. Undertakings.
The Registrant hereby undertakes that it will:
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Act"), each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Southwest
Bancorp, Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-2 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Stillwater, State of Oklahoma, on May 27, 1997.
SOUTHWEST BANCORP, INC.
By: /s/ Robert L. McCormick, Jr.
-----------------------------------
Robert L. McCormick, Jr.
President
Pursuant to the requirements of the Securities Act of 1933, SBI Capital
Trust certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-2 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stillwater, State of Oklahoma, on May 27, 1997.
SBI CAPITAL TRUST
By: /s/ Robert L. McCormick, Jr.
-----------------------------------
Robert L. McCormick, Jr., Trustee
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ Robert L. McCormick, Jr. President and Director May 27, 1997
- ----------------------------- (Principal Executive Officer)
Robert L. McCormick, Jr.
* /s/ Kerby E. Crowell Executive Vice President May 27, 1997
- ----------------------------- (Principal Financial and
Kerby E. Crowell Accounting Officer)
* /s/ George M. Berry Chairman of the Board, Director
- -----------------------------
George M. Berry
* /s/ Thomas D. Berry Director
- -----------------------------
Thomas D. Berry
* /s/ Joyce P. Berry Director
- -----------------------------
Joyce P. Berry
* /s/ Joe Berry Cannon Director
- -----------------------------
Joe Berry Cannon
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
* /s/ W. Haskell Cudd Director
- -----------------------------
W. Haskell Cudd
* /s/ J. Berry Harrison Director
- -----------------------------
J. Berry Harrison
* /s/ Erd M. Johnson Director
- -----------------------------
Erd M. Johnson
* /s/ David P. Lambert Director
- -----------------------------
David P. Lambert
* /s/ Linford R. Pitts Director
- -----------------------------
Linford R. Pitts
* /s/ Robert B. Rodgers Director
- -----------------------------
Robert B. Rodgers
* /s/ Lee A. Wise
- -----------------------------
Lee A. Wise
* /s/ James B. Wise, M.D. Director
- -----------------------------
James B. Wise, M.D.
* /s/ Paul C. Wise Director
- -----------------------------
Paul C. Wise
*By: /s/ Robert L. McCormick, Jr. May 27, 1997
------------------------------
Robert L. McCormick, Jr.
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
Exhibit 4.1
SOUTHWEST BANCORP, INC.
AND
STATE STREET BANK AND TRUST COMPANY,
AS TRUSTEE
INDENTURE
____% SUBORDINATED DEBENTURES DUE 2027
DATED AS OF _______________, 1997.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<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 THE DEBENTURES.............................................. 7
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT............................ 7
SECTION 2.2 MATURITY.................................................... 7
SECTION 2.3 FORM AND PAYMENT............................................ 8
SECTION 2.4 [Intentionally Omitted...................................... 8
SECTION 2.5 INTEREST.................................................... 8
SECTION 2.6 EXECUTION AND AUTHENTICATIONS............................... 9
SECTION 2.7 REGISTRATION OF TRANSFER AND EXCHANGE.......................10
SECTION 2.8 TEMPORARY DEBENTURES........................................10
SECTION 2.9 MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES.............11
SECTION 2.10 CANCELLATION...............................................11
SECTION 2.11 BENEFIT OF INDENTURE.......................................11
SECTION 2.12 AUTHENTICATION AGENT.......................................12
ARTICLE III. REDEMPTION OF DEBENTURES.........................................12
SECTION 3.1 REDEMPTION..................................................12
SECTION 3.2 SPECIAL EVENT REDEMPTION....................................12
SECTION 3.3 OPTIONAL REDEMPTION BY COMPANY..............................13
SECTION 3.4 NOTICE OF REDEMPTION........................................13
SECTION 3.5 PAYMENT UPON REDEMPTION.....................................14
SECTION 3.6 NO SINKING FUND.............................................14
ARTICLE IV. EXTENSION OF INTEREST PAYMENT PERIOD..............................14
SECTION 4.1 EXTENSION OF INTEREST PAYMENT PERIOD........................14
SECTION 4.2 NOTICE OF EXTENSION.........................................15
SECTION 4.3 LIMITATION ON TRANSACTIONS..................................15
ARTICLE V. PARTICULAR COVENANTS OF THE COMPANY................................15
SECTION 5.1 PAYMENT OF PRINCIPAL AND INTEREST...........................15
SECTION 5.2 MAINTENANCE OF AGENCY.......................................15
SECTION 5.3 PAYING AGENTS...............................................16
SECTION 5.4 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE............16
SECTION 5.5 COMPLIANCE WITH CONSOLIDATION PROVISIONS....................17
SECTION 5.6 LIMITATION ON TRANSACTIONS..................................17
SECTION 5.7 COVENANTS AS TO THE TRUST...................................17
SECTION 5.8 COVENANTS AS TO PURCHASES...................................17
ARTICLE VI.. DEBENTUREHOLDERS' LISTS AND REPORTS.. BY THE COMPANY AND THE
TRUSTEE.................................................................17
SECTION 6.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS................................................17
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
SECTION 6.2 PRESERVATION OF INFORMATION COMMUNICATIONS WITH
DEBENTUREHOLDERS................................................18
SECTION 6.3 REPORTS BY THE COMPANY......................................18
SECTION 6.4 REPORTS BY THE TRUSTEE......................................18
ARTICLE VII. REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON EVENT OF
DEFAULT.................................................................19
SECTION 7.1 EVENTS OF DEFAULT...........................................19
SECTION 7.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE......................................................20
SECTION 7.3 APPLICATION OF MONEYS COLLECTED.............................21
SECTION 7.4 LIMITATION ON SUITS.........................................21
SECTION 7.5 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER..........................................................22
SECTION 7.6 CONTROL BY DEBENTUREHOLDERS.................................22
SECTION 7.7 UNDERTAKING TO PAY COSTS....................................23
ARTICLE VIII. FORM OF DEBENTURE AND ORIGINAL ISSUE............................23
SECTION 8.1 FORM OF DEBENTURE...........................................23
SECTION 8.2 ORIGINAL ISSUE OF DEBENTURES................................23
ARTICLE IX. CONCERNING THE TRUSTEE............................................23
SECTION 9.1 CERTAIN DUTIES AND RESPONSIBILITIES TRUSTEE.................23
SECTION 9.2 NOTICE OF DEFAULTS..........................................24
SECTION 9.3 CERTAIN RIGHTS OF TRUSTEE...................................24
SECTION 9.4 TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC...................25
SECTION 9.5 MAY HOLD DEBENTURES.........................................26
SECTION 9.6 MONEYS HELD IN TRUST........................................26
SECTION 9.7 COMPENSATION AND REIMBURSEMENT..............................26
SECTION 9.8 RELIANCE ON OFFICERS' CERTIFICATE...........................26
SECTION 9.9 DISQUALIFICATION; CONFLICTING INTERESTS.....................26
SECTION 9.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY....................26
SECTION 9.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..........27
SECTION 9.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.....................28
SECTION 9.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS........................................................28
SECTION 9.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY......28
ARTICLE X. CONCERNING THE DEBENTUREHOLDERS....................................29
SECTION 10.1 EVIDENCE OF ACTION BY HOLDERS..............................29
SECTION 10.2 PROOF OF EXECUTION BY DEBENTUREHOLDERS.....................29
SECTION 10.3 WHO MAY BE DEEMED OWNERS...................................29
SECTION 10.4 CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED............30
SECTION 10.5 ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS.................31
ARTICLE XI. SUPPLEMENTAL INDENTURES...........................................30
SECTION 11.1 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
DEBENTUREHOLDERS................................................30
SECTION 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF DEBENTUREHOLDERS...31
SECTION 11.3 EFFECT OF SUPPLEMENTAL INDENTURES..........................31
SECTION 11.4 DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES.............31
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
SECTION 11.5 EXECUTION OF SUPPLEMENTAL INDENTURES.......................32
ARTICLE XII.. . SUCCESSOR CORPORATION.........................................32
SECTION 12.1 COMPANY MAY CONSOLIDATE, ETC...............................32
SECTION 12.2 SUCCESSOR CORPORATION SUBSTITUTED..........................32
SECTION 12.3 EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.................33
ARTICLE XIII. SATISFACTION AND DISCHARGE......................................33
SECTION 13.1 SATISFACTION AND DISCHARGE OF INDENTURE....................33
SECTION 13.2 DISCHARGE OF OBLIGATIONS...................................33
SECTION 13.3 DEPOSITED MONEYS TO BE HELD IN TRUST.......................34
SECTION 13.4 PAYMENT OF MONIES HELD BY PAYING AGENTS....................34
SECTION 13.5 REPAYMENT TO COMPANY.......................................34
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS..34
SECTION 14.1 NO RECOURSE................................................34
ARTICLE XV. MISCELLANEOUS PROVISIONS..........................................35
SECTION 15.1 EFFECT ON SUCCESSORS AND ASSIGNS...........................35
SECTION 15.2 ACTIONS BY SUCCESSOR.......................................35
SECTION 15.3 SURRENDER OF COMPANY POWERS................................35
SECTION 15.4 NOTICES....................................................35
SECTION 15.5 GOVERNING LAW..............................................35
SECTION 15.6 TREATMENT OF DEBENTURES AS DEBT............................35
SECTION 15.7 COMPLIANCE CERTIFICATES AND OPINIONS.......................36
SECTION 15.8 PAYMENTS ON BUSINESS DAYS..................................36
SECTION 15.9 CONFLICT WITH TRUST INDENTURE ACT..........................36
SECTION 15.10 COUNTERPARTS..............................................36
SECTION 15.11 SEPARABILITY..............................................36
SECTION 15.12 ASSIGNMENT................................................36
SECTION 15.13 ACKNOWLEDGMENT OF RIGHTS; RIGHT OF SET-OFF................36
ARTICLE XVI. SUBORDINATION OF DEBENTURES......................................37
SECTION 16.1 AGREEMENT TO SUBORDINATE...................................37
SECTION 16.2 DEFAULT ON SENIOR DEBT, SUBORDINATED DEBT ADDITIONAL
SENIOR OBLIGATIONS..............................................37
SECTION 16.3 LIQUIDATION; DISSOLUTION; BANKRUPTCY.......................37
SECTION 16.4 SUBROGATION................................................38
SECTION 16.5 TRUSTEE TO EFFECTUATE SUBORDINATION........................39
SECTION 16.6 NOTICE BY THE COMPANY......................................39
SECTION 16.7 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS......40
SECTION 16.8 SUBORDINATION MAY NOT BE IMPAIRED..........................40
</TABLE>
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<PAGE>
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- ---------
<S> <C>
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
</TABLE>
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.
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<PAGE>
INDENTURE
INDENTURE, dated as of __________, 1997, between SOUTHWEST BANCORP, INC., an
Oklahoma 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, SBI Capital Trust, a Delaware statutory business trust (the "Trust"),
has offered to the public $____ million 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 $_____ million aggregate liquidation amount of its
Common Securities (as defined herein), in $_____ million 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:
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 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.
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"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 July 31,
2002.
"Additional Interest" 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 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.
"Capital Treatment Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by a law firm experienced in such matters to the effect that,
as a result of any amendment to or any 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
applicable to the Company, provided, however, that the inability of the Company
to treat all or any portion of the Liquidation Amount of the Preferred
Securities as Tier 1 Capital shall not constitute the basis of a Capital
Treatment Event if such
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inability results from the Company having cumulative preferred capital in excess
of the amount which may qualify for treatment as Tier 1 Capital under applicable
capital adequacy guidelines of the Federal Reserve.
"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 Southwest Bancorp, Inc., a corporation duly organized and
existing under the laws of the State of Oklahoma, 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.
"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.
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<PAGE>
"Default" means any event, act or condition that with notice or lapse of time,
or both, would constitute an Event of Default.
"Deferred Interest" 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 July 31, 2036.
"Federal Reserve" means the Board of Governors of the Federal Reserve System.
"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 experienced in such matters, to the effect that,
as a result of the occurrence of a change in law or regulation or a
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<PAGE>
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 Interest, 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.
"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.
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<PAGE>
"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 July 31, 2027.
"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 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) the Trust is, or shall 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 Debentures; (ii) interest
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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 the possible
occurrence of any of the events described in clauses (i) through (iii) above.
"Trust" means SBI 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 THE DEBENTURES
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT
There is hereby authorized Debentures designated the "___% Subordinated
Debentures due 2027," limited in aggregate principal amount up to $______
million, 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
(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
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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;
(iii) the Trust is not in arrears on payments of Distributions on the
Trust Securities issued by it and no deferred Distributions are
accumulated; and
(iv) the Company has a rating on its Senior Debt of investment grade.
(c) The Company may, on one occasion, at any time before the day which is 90
days before the Scheduled Maturity Date and after July 31, 2002, elect to
shorten the Maturity Date 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 Additional
Interest, 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 January 31,
April 30, July 31, and October 31 of each year (each, an "Interest Payment
Date," commencing on July 31, 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.
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(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 ("Additional
Interest") 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.
(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.
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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 in the Borough of Manhattan,
the City of New York, 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 in the Borough of Manhattan, the City of New York,
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.
(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
in the Borough of Manhattan, the City of New York, 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.
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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 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).
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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 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(a) but subject to Section 3.3(b), 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 the Trust is pursuing
any Ministerial Action pursuant to its obligations under the Trust Agreement.
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 national securities exchange or other organization on
which the Preferred Securities are then listed, 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 office or agency of the Company in the Borough of Manhattan, the
City of New York or 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.
(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
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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 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
("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
Interest and Compounded Interest (together, "Deferred Interest") 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 Interest 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.
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SECTION 4.2. NOTICE OF EXTENSION
(a) If the Property Trustee is the only registered holder of the Debentures at
the time the Company elects an Extended Interest Payment Period, the Company
shall give written notice to the Administrative Trustees, the Property Trustee
and the Trustee of its election 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 elects an Extended Interest Payment Period, the Company shall
give the holders of the Debentures and the Trustee written notice of its
election 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 on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock; (b) the Company
shall not make any payment of interest, principal or premium, if any, or repay,
repurchase or redeem any debt securities issued by the Company which rank pari
passu with or junior 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 THE 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.
SECTION 5.2. MAINTENANCE OF AGENCY
So long as any of the Debentures remain Outstanding, the Company shall
maintain an office or agency in the Borough of Manhattan, the City of New York,
and at such other 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. In addition to any such
office or agency, the Company may from time to time designate one or more
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offices or agencies outside of the Borough of Manhattan, the City of New York,
where the Debentures may be presented for registration or transfer and for
exchange in the manner provided herein, and the Company may from time to time
rescind such designation as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office or agency in
the Borough of Manhattan, the City of New York, for the purposes above
mentioned. 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;
(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
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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 dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock; (b) the Company shall not make any payment
of interest, principal or premium, if any, or repay, repurchase or redeem any
debt securities issued by the Company which rank pari passu with or junior 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 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 July 31, 2002.
ARTICLE VI
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE 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 (in the event the
Company fails to provide such list on a monthly
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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 THE 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 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 overnight 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.
SECTION 6.4. REPORTS BY THE 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.
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(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 THE 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;
(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, 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,
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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 to their
respective 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 payable on
all such Debentures for principal or interest, or both, as the case may be, with
interest upon the overdue principal and upon overdue installments of interest at
the rate per annum expressed in the Debentures; 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) 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.
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(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.
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
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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.
SECTION 7.5. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER
(a) 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
respective former positions and rights hereunder; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
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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 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 7.8 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 $______ 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 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 $_______ 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 THE TRUSTEE
SECTION 9.1. CERTAIN DUTIES AND RESPONSIBILITIES 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.
(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:
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(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 Interest) 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 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
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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 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.
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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 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.
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
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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. 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 9.9, 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.
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(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.
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 paragraph
(a) of this Section 9.12.
(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 THE 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
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.
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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;
(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;
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(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) to 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 12.1.
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 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
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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.
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 then 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, an 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
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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).
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, 9.7 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, an amount of moneys or Governmental Obligations, or a
combination thereof, 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
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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.
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, of, 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, 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.
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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: Southwest Bancorp, Inc., 608 South Main Street,
Stillwater, Oklahoma 74074, Attention:____________________. 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 Oklahoma, 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.
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.
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(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 (i) a statement that the Person making
such certificate or opinion has read such covenant or condition; (ii) 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; (iii) 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 (iv) 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 (subject to Section 2.5) 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.
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 SET-OFF
(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
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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 to set-off 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
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 or distribution 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
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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 or money's worth 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.
(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 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),
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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 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 THE 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
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may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 16.7. RIGHTS OF THE 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 the
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.
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<PAGE>
(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.
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.
SOUTHWEST BANCORP, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
Attest:
_______________________
STATE STREET BANK AND TRUST COMPANY, as trustee
By:______________________________________
Name:____________________________________
Title:___________________________________
Attest:
_______________________
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<PAGE>
STATE OF _________ )
) ss
COUNTY OF __________ )
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 _______________________, 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
My term expires:________________________
[seal]
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, 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 commonwealth the day and year last above
written.
_______________________________________
Notary Public
My term expires:_______________________
[seal]
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<PAGE>
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
No. _____________________________ $_______________________
CUSIP No. _______________________
SOUTHWEST BANCORP, INC.
___% SUBORDINATED DEBENTURE
DUE JUNE 30, 2027
Southwest Bancorp, Inc., an Oklahoma corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to, ______________ or registered
assigns, the principal sum of ______________ Dollars ($___________) on July 31,
2027 (the "Stated Maturity"), and to pay interest on said principal sum from
[Date of Issue] 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
January 31, April 30, July 31 and October 31 of each year commencing July 31,
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 (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 said Indenture) is registered at the close of business on the regular record
date for such interest installment, which shall be the close of business on the
fifteenth day of the month in which the Interest Payment Date occurs, unless
otherwise provided in the Indenture. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date and may be paid to the Person in
whose name this Debenture (or one or more Predecessor Debentures) is registered
at the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered holders of the Debentures not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully 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 July 31, 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 for one or more periods, but in no event
to a date later than July 31, 2036, subject to certain limitations described in
the Indenture.
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<PAGE>
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, and 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
hereinafter referred to, 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
----------------------
SOUTHWEST BANCORP, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Attest:
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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<PAGE>
[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
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<PAGE>
[FORM OF REVERSE OF DEBENTURE]
______________% SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the Company
(herein sometimes referred to as the "Debentures"), specified in the Indenture,
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.
In certain circumstances, because of the occurrence and continuation of
a Special Event, this Debenture may become due and payable prior to its Stated
Maturity, at the principal amount together with any interest accrued thereon
(the "Redemption Price"). The Redemption Price shall be paid prior to 12:00
noon, Eastern Time, on the date of such redemption or at such earlier time as
the Company determines. The Company shall have the right 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 July 31, 2002 (an "Optional Redemption"), or at
any time in certain circumstances upon the occurrence of a Special Event, at a
Redemption Price equal to 100% of the principal amount plus any accrued but
unpaid interest, 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. 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.
In the event of 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 in place hereof, 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
A - 4
<PAGE>
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.
The Company 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 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 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 Debenture 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.
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<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Pre-Effective Amendment No. 1 to the Registration
Statement of Southwest Bancorp, Inc. on Form S-2 of our report dated January 27,
1997, included and incorporated by reference in the Annual Report on Form 10-K
of Southwest Bancorp, Inc. for the year ended December 31, 1996, and to the use
of our report dated January 27, 1997, appearing in the Prospectus, which is part
of this Registration Statement. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
/s/ Deloitte & Touche LLP
Oklahoma City, Oklahoma
May 27, 1997
