Citizens Financial Group Inc 8-K, filed Sep 30, 2020
Citizens Financial Group Inc (CFG)
About this 8-K
Citizens Financial Group Inc filed this 8-K on September 30, 2020.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
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| Item 8.01. | Other Events. |
On September 30, 2020 (the “Settlement Date”), Citizens Financial Group, Inc. (the “Company”) completed its previously announced offers to exchange (the “Exchange Offers”) any and all of the Company’s 4.150% Subordinated Notes due 2022 (the “4.150% Old Notes”), 3.750% Subordinated Notes due 2024 (the “3.750% Old Notes”), 4.023% Subordinated Notes due 2024 (the “4.023% Old Notes”), 4.350% Subordinated Notes due 2025 (the “4.350% Old Notes”) and 4.300% Subordinated Notes due 2025 (the “4.300% Old Notes” and, collectively, the “Old Notes”) for the Company’s 2.638% Subordinated Notes due 2032 (the “New Notes”) and an additional cash payment. Also on the Settlement Date, Citizens completed its previously announced offers to purchase (the “Cash Offers”) any and all Old Notes for cash.
Pursuant to the Exchange Offers, the aggregate principal amounts of the Old Notes set forth below were validly tendered and accepted and subsequently cancelled:
| (i) | $168,073,000 aggregate principal amount of 4.150% Old Notes; |
| (ii) | $91,371,000 aggregate principal amount of 3.750% Old Notes; |
| (iii) | $16,800,000 aggregate principal amount of 4.023% Old Notes; |
| (iv) | $54,909,000 aggregate principal amount of 4.350% Old Notes; and |
| (v) | $289,402,000 aggregate principal amount of 4.300% Old Notes. |
Pursuant to the Cash Offers, the aggregate principal amounts of the Old Notes set forth below were validly tendered and accepted for purchase and subsequently cancelled:
| (i) | $1,075,000 aggregate principal amount of 4.350% Old Notes; and |
| (ii) | $10,436,000 aggregate principal amount of 4.300% Old Notes. |
No 4.150% Old Notes, 3.750% Old Notes or 4.023% Old Notes were validly tendered and accepted for purchase pursuant to the Cash Offers.
Following such cancellation, (i) $181,927,000 aggregate principal amount of 4.150% Old Notes remain outstanding; (ii) $158,629,000 aggregate principal amount of 3.750% Old Notes remain outstanding; (iii) $25,200,000 aggregate principal amount of 4.023% Old Notes remain outstanding, (iv) $194,016,000 aggregate principal amount of 4.350% Old Notes remain outstanding and (v) $450,162,000 aggregate principal amount of 4.300% Old Notes remain outstanding.
In connection with the settlement of the Exchange Offers, the Company issued $620,555,000 aggregate principal amount of the New Notes and paid aggregate additional cash consideration of $78,178,974.10, plus accrued and unpaid interest of $5,657,739.03, in exchange for the Old Notes validly tendered and accepted by the Company pursuant to the Exchange Offers.
In connection with the settlement of the Cash Offers, the Company paid aggregate total consideration of (i) $1,238,797.75 for the 4.350% Old Notes, plus accrued and unpaid interest of $7,663.86 and (ii) $12,108,786.44 for the 4.300% Old Notes, plus accrued and unpaid interest of $145,843.23, in each case validly tendered and accepted for purchase by the Company pursuant to the Cash Offers.
The New Notes were issued under the Subordinated Indenture, dated as of September 28, 2012 (the “Base Indenture”), as amended by the Eleventh Supplemental Indenture, dated as of September 30, 2020 (the “Eleventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and The Bank of New York Mellon, as trustee. The New Notes have a fixed interest rate of 2.638%, payable semi-annually. A copy of the Eleventh Supplemental Indenture and forms of the Rule 144A Global Note and Regulation S Global Note for the New Notes are included as Exhibits 4.1, 4.2 and 4.3, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
In connection with the issuance of the New Notes, the Company entered into a Registration Rights Agreement, dated as of September 30, 2020 (the “Registration Rights Agreement”), with Credit Suisse Securities (USA) LLC and Citizens Capital Markets, Inc., as dealer managers, which gives holders of the New Notes certain exchange and registration rights with respect to the New Notes. A copy of the Registration Rights Agreement is included as Exhibit 4.4 to this Current Report on Form 8-K and incorporated herein by reference.
The foregoing summary of the terms of the New Notes and the Registration Rights Agreement do not purport to be complete and is subject to, and qualified in its entirety by, the full text of (i) the Indenture, (ii) the forms of New Notes and (iii) the Registration Rights Agreement, which are attached hereto, or, in the case of the Base Indenture, attached as Exhibit 4.2 to the Company’s Registration Statement on Form S-1, filed on July 28, 2015.
On the Settlement Date, the Company issued the press release announcing the final results of its subordinated debt exchange offers and related tender offers, a copy of which is included as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Citizens Financial Group, Inc. (Registrant) | ||||
| Date: September 30, 2020 | By: | /s/ Stephen T. Gannon | ||
| Name: | Stephen T. Gannon | |||
| Title: | Executive Vice President, General Counsel and Chief Legal Officer | |||
Exhibit 4.1
CITIZENS FINANCIAL GROUP, INC.
Issuer
and
THE BANK OF NEW YORK MELLON
Trustee
ELEVENTH SUPPLEMENTAL INDENTURE
Dated as of September 30, 2020
to
SUBORDINATED INDENTURE
Dated as of September 28, 2012
$620,555,000 Principal Amount 2.638% Subordinated Notes due 2032
TABLE OF CONTENTS
| PAGE | ||||||
| ARTICLE I | ||||||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||||||
| Section 101 |
Relation to Base Indenture | 1 | ||||
| Section 102 |
Incorporation by Reference of Trust Indenture Act | 2 | ||||
| Section 103 |
Trust Indenture Act to Control | 2 | ||||
| Section 104 |
Definitions | 2 | ||||
| ARTICLE II | ||||||
| TERMS AND CONDITIONS OF THE SUBORDINATED NOTES | ||||||
| Section 201 |
Form of Subordinated Notes | 7 | ||||
| Section 202 |
Title and General Terms | 7 | ||||
| Section 203 |
Redemption | 9 | ||||
| Section 204 |
Reports and Other Information | 10 | ||||
| Section 205 |
Transfer and Exchange | 11 | ||||
| Section 206 |
Acceleration of Maturity | 25 | ||||
| Section 207 |
Supplemental Indentures Without Consent of Holders | 25 | ||||
| Section 208 |
Corporate Trust Office | 26 | ||||
| Section 209 |
Notice of Defaults | 26 | ||||
| Section 210 |
Registration Rights Agreement | 26 | ||||
| ARTICLE III | ||||||
| MISCELLANEOUS | ||||||
| Section 301 |
Effect of Headings | 26 | ||||
| Section 302 |
Successors and Assigns | 26 | ||||
| Section 303 |
Separability Clause | 26 | ||||
| Section 304 |
Governing Law | 26 | ||||
| Section 305 |
U.S.A. PATRIOT Act | 27 | ||||
| Section 306 |
FATCA | 27 | ||||
| Section 307 |
Electronic Communications | 27 | ||||
| Section 308 |
Funds Held by the Trustee | 27 | ||||
| EXHIBIT A |
A-1 | |||||
| EXHIBIT B |
B-1 | |||||
| EXHIBIT C |
C-1 | |||||
| EXHIBIT D |
D-1 | |||||
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CROSS-REFERENCE TABLE
Reconciliation and tie showing the location in the Base Indenture, dated as of September 28, 2012, of the provisions inserted pursuant to Sections 310 to 318(a), inclusive, of the Trust Indenture Act, unless otherwise indicated. This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Subordinated Indenture.
| Trust Indenture |
Indenture | |||
| 310 (a)(1) | 609 | |||
| (a)(2) |
609 | |||
| (a)(5) |
609 | |||
| (b) |
608 and 610 | |||
| 312 (a) | 701 | |||
| 313 (a) | 703 | |||
| (c) |
703 | |||
| 314 (a) | 1206 | |||
| (c)(1) |
102 | |||
| (c)(2) |
102 | |||
| (e) |
102 | |||
| 315 (a) | 601 | |||
| (b) |
602 | |||
| (c) |
601 | |||
| (d) |
601 | |||
| (e) |
514 | |||
| 316 (a)(1) | 512 | |||
| (b) |
507 | |||
| (c) |
802 | |||
| 317 (a) | 503 | |||
| (b) |
1203 | |||
| 318 (a) | 103* |
| * | Refers to Section 103 of the Eleventh Supplemental Indenture. |
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ELEVENTH SUPPLEMENTAL INDENTURE, dated as of September 30, 2020 (the “Eleventh Supplemental Indenture”), between Citizens Financial Group, Inc., a Delaware corporation (the “Company”), and The Bank of New York Mellon, a New York banking corporation, as Trustee hereunder (the “Trustee”).
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to The Bank of New York Mellon, as trustee, a Subordinated Indenture, dated as of September 28, 2012 (the “Base Indenture,” as the same may be amended or supplemented from time to time, including by this Eleventh Supplemental Indenture, the “Subordinated Indenture”), providing for the issuance from time to time of the Company’s subordinated debt securities (herein and therein called the “Subordinated Debt Securities”), to be issued in one or more series as provided in the Base Indenture;
WHEREAS, Sections 201, 301 and 1101 of the Base Indenture permit the Company and the Trustee to enter into an indenture supplemental to the Base Indenture to provide for the issuance of, and establish the form and terms of, additional series of Subordinated Debt Securities;
WHEREAS, the Company has authorized the issuance of $620,555,000 in aggregate principal amount of its 2.638% Subordinated Notes due 2032;
WHEREAS, the Subordinated Notes will be established as a series of Subordinated Debt Securities under the Subordinated Indenture;
WHEREAS, the Company has duly authorized the execution and delivery of this Eleventh Supplemental Indenture to establish the form and terms of the Subordinated Notes; and
WHEREAS, all things necessary have been done to make this Eleventh Supplemental Indenture a valid agreement of the Company, in accordance with its terms;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Subordinated Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Subordinated Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Relation to Base Indenture.
This Eleventh Supplemental Indenture constitutes a part of the Base Indenture (the provisions of which, as modified by this Eleventh Supplemental Indenture, shall apply to the Subordinated Notes) in respect of the Subordinated Notes but shall not modify, amend or otherwise affect the Base Indenture insofar as it relates to any other series of Subordinated Debt Securities or affects in any manner the terms and conditions of the Subordinated Debt Securities of any other series. For the avoidance of doubt, the First through Tenth Supplemental Indentures to the Base Indenture shall not apply to the Subordinated Notes.
Section 102 Incorporation by Reference of Trust Indenture Act.
The Subordinated Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of the Subordinated Indenture. The following Trust Indenture Act terms have the following meanings:
“Indenture Securities” shall mean the Subordinated Debt Securities.
“Indenture to Be Qualified” shall mean the Subordinated Indenture.
“Indenture Trustee or Institutional Trustee” shall mean the Trustee.
“Obligor” with reference to Indenture Securities shall mean the Company.
All other terms in the Subordinated Indenture that are defined by the Trust Indenture Act, defined by it by reference to another statute or defined by the Commission rule have the meanings assigned to them by such definitions.
Section 103 Trust Indenture Act to Control.
If any provision included in the Subordinated Indenture limits, qualifies or conflicts with another provision included in the Subordinated Indenture that is required to be included in the Subordinated Indenture by the Trust Indenture Act, such required provision shall control. If any provision of the Subordinated Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to the Subordinated Indenture as so modified or to be excluded, as the case may be.
Section 104 Definitions.
For all purposes of this Eleventh Supplemental Indenture, the capitalized terms used herein that are defined in this Section 104 have the respective meanings assigned hereto in this Section 104, and the capitalized terms used herein that are defined in the Base Indenture and not defined in this Section 104 have the respective meanings assigned thereto in the Base Indenture. For all purposes of this Eleventh Supplemental Indenture:
(1) the terms defined in this Article I have the meanings assigned to them in this Article I, and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with U.S. GAAP, and, except as otherwise herein expressly provided, the term “U.S. GAAP” with respect to any computation required or permitted hereunder shall mean U.S. GAAP at the date of such computation;
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(4) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Eleventh Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision; and
(5) for the avoidance of doubt, any reference to a facsimile signature shall include an image of a signature produced electronically.
“144A Global Note” means a Global Note substantially in the form of Exhibit A, bearing the Global Note Legend and the 144A Legend and deposited with or on behalf of, and registered in the name of the Depositary or its nominee, issued in a denomination equal to the Outstanding principal amount of the Subordinated Notes sold in reliance on Section 4(a)(2) of the Securities Act to QIBs.
“144A Legend” means the legend set forth in Section 205(g)(i) hereof to be placed on all Subordinated Notes issued under the Subordinated Indenture and sold in reliance on Section 4(a)(2) of the Securities Act to QIBs, except where otherwise permitted by the provisions of this Eleventh Supplemental Indenture.
“Additional Notes” shall have the meaning set forth in Section 202(j).
“Agent’s Message” means a computer-generated message, transmitted by DTC to, and received by, the exchange agent for the Registered Exchange Offer and forming a part of a book-entry conformation, which states that DTC has received an express acknowledgment from the tendering participant that such participant has received and agrees to be bound by, and makes the representations and warranties contained in, the Letter of Transmittal and that the Company may enforce the Letter of Transmittal against such participant.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange, and, with respect to any payments on or notices in respect of any Global Note, the rules and procedures of the Depositary that apply to such payment or notice.
“Appropriate Federal Banking Agency” means the “appropriate federal banking agency” with respect to the Company as defined in Section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. § 1813(q)), or any successor provision.
“Base Indenture” has the meaning set forth in the recitals of the Company of this Eleventh Supplemental Indenture.
“Clearstream” means Clearstream Banking, Société Anonyme and its successors.
“Code” means the Internal Revenue Code of 1986 as in effect on the date hereof.
“Company” means the Person named as the “Company” in the first paragraph of this Eleventh Supplemental Indenture until a successor corporation shall have become such pursuant to the applicable provisions of the Subordinated Indenture, and thereafter “Company” shall mean such successor corporation.
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“Dealer Managers” means, with respect to the Subordinated Notes, Credit Suisse Securities (USA) LLC and Citizens Capital Markets, Inc.
“Definitive Note” means a certificated Subordinated Note registered in the name of the Holder thereof and issued in accordance with Section 205 hereof, substantially in the form of Exhibit A, except that such Subordinated Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
“DTC” means The Depository Trust Company.
“Eleventh Supplemental Indenture” has the meaning set forth in the first paragraph of this instrument.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Notes” means the Subordinated Notes issued in the Registered Exchange Offer pursuant to Section 205(f) or pursuant to a registered exchange offer for Subordinated Notes with a Private Placement Legend issued after the Original Issue Date.
“Exchange Offer Registration Statement” means a registration statement of the Company on an appropriate form under the Securities Act with respect to the Registered Exchange Offer, all amendments and supplements to such registration statement, including post-effective amendments thereto, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear system, and its successors.
“FATCA” has the meaning set forth in Section 307.
“Global Note Legend” means the legend set forth in Section 205(g)(iii) hereof, which is required to be placed on all Global Notes issued under the Subordinated Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A, issued in accordance with Section 201, Section 205(b), Section 205(d) or Section 205(f) hereof.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” means the $620,555,000 aggregate principal amount of 2.638% Subordinated Notes due 2032 of the Company issued on the Original Issue Date.
“Letter of Transmittal” means the letter of transmittal or similar documentation to be prepared by the Company and sent to all holders of the Subordinated Notes to be executed and delivered by such holders (or agreed to by such holders pursuant to an Agent’s Message) in connection with the Registered Exchange Offer.
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“Original Issue Date” means September 30, 2020, the date of original issuance of the Initial Notes.
“Par Call Date” shall have the meaning set forth in Section 203(a).
“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary (and, with respect to DTC, shall include Euroclear and Clearstream).
“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, estate, unincorporated organization or government or any agency or political subdivision thereof.
“Private Placement Legend” means the 144A Legend or Regulation S Legend, as applicable.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Redemption Price” has the meaning set forth in Section 203(b) of this Eleventh Supplemental Indenture.
“Registered Exchange Offer” means the proposed offer of the Company to issue and deliver, or cause to be issued and delivered, to the Holders of the Subordinates Notes or the owners of beneficial interests therein that are not prohibited by any law or policy of the Commission from participating in such offer, in exchange for the Subordinated Notes initially sold in reliance on Section 4(a)(2) of the Act or on Rule 903, a like aggregate principal amount of Subordinated Notes identical in all material respects to the Subordinated Notes being exchanged (except that the transfer restrictions on the Subordinated Notes being exchanged shall be modified or eliminated, as appropriate).
“Registration Rights Agreement” means the Registration Rights Agreement relating to the Subordinated Notes, dated as of September 30, 2020, by and among the Company and the Dealer Managers.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Global Note substantially in the form of Exhibit A, bearing the Global Note Legend and the Regulation S Legend and deposited with or on behalf of, and registered in the name of the Depositary or its nominee, issued in a denomination equal to the Outstanding principal amount of the Subordinated Notes initially sold in reliance on Rule 903.
“Regulation S Legend” means the legend set forth in Section 205(g)(ii) hereof to be placed on all Subordinated Notes issued under the Subordinated Indenture and initially sold in reliance on Rule 903, except where otherwise permitted by the provisions of this Eleventh Supplemental Indenture.
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“Regulatory Capital Treatment Event” means the good faith determination by the Company that, as a result of (i) any amendment to, or change in, the laws, rules or regulations of the United States (including, for the avoidance of doubt, any agency or instrumentality of the United States, including the Federal Reserve and other Federal bank regulatory agencies) or any political subdivision of or in the United States that is enacted or becomes effective after the Original Issue Date, (ii) any proposed change in those laws, rules or regulations that is announced or becomes effective after the Original Issue Date, or (iii) any official administrative decision or judicial decision or administrative action or other official pronouncement interpreting or applying those laws, rules or regulations or policies with respect thereto that is announced after the Original Issue Date, there is more than an insubstantial risk that the Company will not be entitled to treat the Subordinated Notes then Outstanding as “Tier 2 capital” (or its equivalent) for purposes of the capital adequacy rules of the Federal Reserve (or, as and if applicable, the capital adequacy rules or regulations of any successor Appropriate Federal Banking Agency) as then in effect and applicable, for so long as the Subordinated Notes are Outstanding, to at least the same extent as on the Original Issue Date.
“Restricted Definitive Note” means a Definitive Note bearing, or that is required to bear, a Private Placement Legend.
“Restricted Global Note” means a Global Note bearing, or that is required to bear, a Private Placement Legend.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, and unless context requires otherwise, the rules and regulations of the Commission promulgated thereunder.
“Shelf Registration Statement” means a “shelf’ registration statement of the Company pursuant to the provisions of the Registration Rights Agreement, which covers some or all of the Subordinated Notes, on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the Commission, amendments and supplements to such registration statement, including post-effective amendments and the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Subordinated Indenture” has the meaning set forth in the recitals of the Company of this Eleventh Supplemental Indenture.
“Subordinated Notes” means the Initial Notes, the Exchange Notes and any other notes issued after the Issue Date in accordance with Section 202(j).
“Trustee” means the Person named as the “Trustee” in the first paragraph hereof until a successor Person shall have become such pursuant to the applicable provisions of the Subordinated Indenture, and thereafter “Trustee” shall mean such successor Person.
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“Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not required to bear a Private Placement Legend.
“Unrestricted Global Note” means a Global Note, substantially in the form of Exhibit A that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing Subordinated Notes that do not bear a Private Placement Legend.
ARTICLE II
TERMS AND CONDITIONS OF THE SUBORDINATED NOTES
Section 201 Form of Subordinated Notes.
(a) General. The Subordinated Notes and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A, which is incorporated in and forms a part of the Subordinated Indenture, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Subordinated Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be determined, consistent with the Subordinated Indenture, by the officers of the Company executing such Subordinated Notes, as evidenced by their execution of such Subordinated Notes.
(b) Global Notes. The Subordinated Notes shall be issued initially in the form of one or more permanent Global Notes. Global Notes shall be substantially in the form of Exhibit A, including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto. Subordinated Notes issued in definitive form shall be substantially in the form of Exhibit A, but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto. Each Global Note shall represent such of the Outstanding Subordinated Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent up to the aggregate principal amount of Subordinated Notes from time to time endorsed thereon and that the aggregate principal amount of Outstanding Subordinated Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of Outstanding Subordinated Notes represented thereby shall be made by the Trustee, in accordance with instructions given by the Holder thereof as required by Section 205 hereof.
(c) Authentication. With respect to the Subordinated Notes, the first sentence of Section 303(g) of the Base Indenture shall be amended by adding the words “(or, solely in the case of a Global Note, by manual, facsimile or other electronic signature of one of its authorized officers)” immediately after the words “by manual signature of one of its authorized officers” and before the comma that follows such words.
Section 202 Title and General Terms.
Pursuant to Sections 201 and 301 of the Base Indenture, there is hereby established a series of Subordinated Debt Securities, the terms of which shall be as follows:
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(a) Designation. The Subordinated Notes shall be known and designated as the “2.638% Subordinated Notes due 2032.”
(b) Aggregate Principal Amount. The aggregate principal amount of the Subordinated Notes that may be authenticated and delivered under this Eleventh Supplemental Indenture is limited to $620,555,000, as increased by the amount of any Additional Notes issued pursuant to Section 202(j) of this Eleventh Supplemental Indenture, except for Subordinated Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Subordinated Notes issued pursuant to Section 304, 305, 306, 1106 or 1307 of the Base Indenture or Article II of this Eleventh Supplemental Indenture.
(c) Maturity, Interest and Place of Payment. The Stated Maturity of the Subordinated Notes shall be September 30, 2032, and the Subordinated Notes shall bear interest and have such other terms as are set forth in the form of Note attached as Exhibit A hereto. The Place of Payment with respect to the Subordinated Notes shall be The City of New York.
(d) No Additional Amounts. In the event that any payment on the Subordinated Notes by the Company or any Paying Agent is subject to withholding of United States Federal income tax or other tax or assessment (as a result of a change in law or otherwise), neither the Company nor any Paying Agent shall pay additional amounts to the Holders of the Subordinated Notes.
(e) No Sinking Fund or Redemption at Option of Holders. The Company shall have no obligation to redeem or purchase the Subordinated Notes pursuant to any sinking fund or analogous provision, or at the option of a Holder thereof. The Subordinated Notes shall be redeemable at the election of the Company from time to time at the times and at the prices specified in Section 203 of this Eleventh Supplemental Indenture, and the election of the Company to redeem any Subordinated Notes shall be evidenced by either a Board Resolution or an Officer’s Certificate.
(f) Defeasance.
(i) The Subordinated Notes shall be subject to the defeasance provisions of Article XIV of the Base Indenture beginning no earlier than on the fifth anniversary of the Original Issue Date; provided that, with respect to the Subordinated Notes, Section 1402(b)(4) of the Base Indenture shall be replaced in its entirety with the following:
“(4) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that beneficial owners of the Subordinated Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of the Company’s exercise of its option under this Section and will be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such option had not been exercised (which opinion, if the Company shall have exercised its option under Section 1402(b)(x) of the Base Indenture, shall be (A) accompanied by and based upon a ruling to that effect received from or published by the Internal Revenue Service or (B) based upon a change in law after the date of this Eleventh Supplemental Indenture); and”
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(ii) Any defeasance of the Subordinated Notes pursuant to Article XIV of the Base Indenture shall be subject to the Company obtaining the prior approval of the Appropriate Federal Banking Agency and any additional requirements that the Appropriate Federal Banking Agency may impose with respect to defeasance of the Subordinated Notes, if then required under capital rules applicable to the Company.
(g) Repurchases. The Company may from time to time repurchase the Subordinated Notes in open market purchases or negotiated transactions without prior notice to Holders or beneficial owners of Subordinated Notes. Any such repurchases of the Subordinated Notes shall be subject to the Company obtaining the prior approval of the Appropriate Federal Banking Agency and any additional requirements that the Appropriate Federal Banking Agency may impose with respect to the repurchase of the Subordinated Notes, if then required under capital rules applicable to the Company.
(h) Denominations. The Subordinated Notes shall be issuable only in fully registered form and only in a minimum denomination of $2,000 and authorized denominations of any integral multiples of $1,000 in excess thereof.
(i) Authentication and Delivery. The Subordinated Notes shall be executed, authenticated, delivered and dated in accordance with Section 303 of the Base Indenture and Section 201(c) hereof.
(j) Additional Notes. The Company may, from time to time, without the consent of the Holders of the Subordinated Notes, reopen the series constituting the Subordinated Notes and issue additional Subordinated Notes (the “Additional Notes”) having the same ranking and the same interest rate, maturity and other terms as the Subordinated Notes, except for the public offering price, the issue date and, if applicable, the initial interest payment date and initial interest accrual date. Any such Additional Notes, together with the Initial Notes and the Exchange Notes, shall constitute a single series of Subordinated Debt Securities under the Base Indenture; provided that if the Additional Notes are not fungible for U.S. federal income tax and U.S. federal securities law purposes with the Initial Notes or the Exchange Notes, as the case may be, the Additional Notes shall be issued under separate CUSIP and ISIN numbers.
(k) Events of Default and Default. The only Events of Default and the only Defaults applicable to the Subordinated Notes are as set forth in Article V of the Base Indenture.
Section 203 Redemption.
The Subordinated Notes shall not be redeemable at the Company’s option except as set forth in this Section 203:
(a) Optional Redemption. The Company may, at its option, redeem the Subordinated Notes (i) in whole or in part at any time and from time to time on or after July 2, 2032 (the “Par Call Date”) and (ii) in whole but not in part at any time within 90 days following a Regulatory Capital Treatment Event. Any such redemption of the Subordinated Notes shall be subject to the Company obtaining the prior approval of the Appropriate Federal Banking Agency, if then required under capital rules applicable to the Company.
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(b) Redemption Price. In the case of any redemption of the Subordinated Notes, the “Redemption Price” shall be equal to 100% of the Outstanding principal amount of the Subordinated Notes to be redeemed, plus any accrued and unpaid interest thereon to, but excluding, the Redemption Date. If the Redemption Price in respect of the Subordinated Notes is not paid on the Redemption Date, interest on the Outstanding principal amount of the Subordinated Notes will continue to accrue until the Redemption Price is actually paid or set aside for payment.
(c) Redemption Procedures. Except as modified by this Section 203, any redemption of the Subordinated Notes under this Section 203 is subject to the terms and conditions of Article XIII of the Base Indenture.
(i) Notice of any redemption shall be sent at least 10 days but no more than 60 days before the Redemption Date to (w) each Holder of Subordinated Notes to be redeemed in accordance with Section 105 of the Base Indenture, (x) to the Trustee, (y) to the Security Registrar to forward to each Holder of Subordinated Notes to be redeemed at such Holder’s registered address, or (z) otherwise in accordance with the Applicable Procedures. If less than all of the Subordinated Notes are to be redeemed, and the Subordinated Notes are Global Notes, the Subordinated Notes to be redeemed will be selected by the Depositary in accordance with the Applicable Procedures. If the Subordinated Notes to be redeemed are not Global Notes held by the Depositary, the Trustee will select the Subordinated Notes (or portions thereof) to be redeemed by lot. The Trustee shall have no duty to calculate or verify the calculation of the Redemption Price.
(ii) At least 5 Business Days or such shorter period as the Trustee and Security Registrar may agree to (and not more than 10 Business Days) prior to the date on which it intends to have the Security Registrar notify the Holders of the Subordinated Notes of the Company’s exercise of its option to redeem the Subordinated Notes, the Company will provide to the Trustee and the Security Registrar a draft notice of a potential exercise of such option with respect to the Subordinated Notes on such date. After receipt of final notice that the Company is exercising its option to redeem the Subordinated Notes, the Security Registrar will deliver notice to each Holder of Subordinated Notes in accordance with Article XIII of the Base Indenture, as modified by this Section 203.
Section 204 Reports and Other Information.
Section 1206 of the Base Indenture shall be replaced in its entirety with the following:
“So long as Subordinated Notes remain Outstanding, the Company shall file with, or make available to, 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 that the Company may be required to file
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with the Commission pursuant to Section 13 or Section 15(d) of the Exchange or pursuant to Section 314 of the Trust Indenture Act; provided that any document publicly available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system shall satisfy the requirements hereof if the Company provides the Trustee with written notice when any such document is filed with the Commission”
Section 205 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. Except as otherwise set forth in this Section 205, a Global Note may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor thereto or a nominee of such successor thereto. A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the Depositary (1) notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note or (2) has ceased to be a clearing agency registered under the Exchange Act, and, in either case, a successor Depositary is not appointed by the Company within 90 days of such notice or becoming aware that the Depositary is no longer so registered, (ii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes or (iii) upon the request of the Depositary if there shall have occurred and be continuing an Event of Default with respect to the Subordinated Notes. Upon the occurrence of any of the preceding events in clause (i), (ii) or (iii) above, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with the Applicable Procedures). Global Notes also may be exchanged or replaced, in whole or in part, as provided in Article III of the Base Indenture. Every Subordinated Note authenticated and delivered in exchange for, or in lieu of, a Global Note, pursuant to this Section 205 or Article III of the Base Indenture, as modified by Section 201(c) hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, except for Definitive Notes issued subsequent to any of the preceding events in clause (i), (ii) or (iii) above and pursuant to Section 205(c) hereof. A Global Note may not be exchanged for another Subordinated Note other than as provided in this Section 205(a); provided that beneficial interests in a Global Note may be transferred and exchanged as provided in Section 205(b), (c) or (f) hereof.
(b) Transfers and Exchanges of Beneficial Interests in Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary in accordance with the provisions of the Subordinated Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend applicable to such Restricted Global Note. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Security Registrar to effect the transfers described in this Section 205(b)(i).
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(ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 205(b)(i), the transferor of such beneficial interest must deliver to the Security Registrar either (1) (A) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (B) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase, or (2) (A) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note of the same series in an amount equal to the beneficial interest to be transferred or exchanged and (B) instructions given by the Depositary to the Security Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in subclause (2)(A); provided that in no event shall Definitive Notes be issued other than upon the occurrence of any of the events in clauses (i), (ii) or (iii) of Section 205(a). Upon consummation of a Registered Exchange Offer by the Company in accordance with Section 205(f), the requirements of this Section 2.05(b)(ii) shall be deemed to have been satisfied upon receipt by the Security Registrar of the instructions contained in either the Letter of Transmittal delivered by the holder of such beneficial interests in the Restricted Global Notes or the applicable Agent’s Message.
(iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 205(b)(ii) hereof and the Security Registrar receives the following: (1) if the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (1) thereof, and, if such beneficial interest is in a Regulation S Global Note, the transferee must deliver a certificate in the form of Exhibit C; or (2) if the transferee will take delivery in the form of a beneficial interest in a Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 205(b)(ii) hereof and:
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(1) such exchange or transfer is effected pursuant to the Registered Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be exchanged, in the case of an exchange, or the transferee, in the case of a transfer, makes the certifications in the applicable Letter of Transmittal or pursuant to the applicable Agent’s Message in accordance with the Registration Rights Agreement;
(2) such transfer is effected pursuant to a Shelf Registration Statement in accordance with the Registration Rights Agreement;
(3) the Security Registrar receives the following: (A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, the Security Registrar receives a certificate from such Holder substantially in the form of Exhibit D hereto, including the certifications in item (1)(a) thereof; or (B) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, the Security Registrar receives a certificate from such holder in the form of Exhibit B, including the certifications in item (4) thereof; and, in each such case set forth in this subparagraph (3), if the Security Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Security Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend applicable to such Restricted Global Note are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to this subparagraph (iv) at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of a Company Order for the authentication of one or more Unrestricted Global Notes in accordance with Section 303 of the Base Indenture and Section 201(c) hereof, the Trustee shall authenticate such Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this subparagraph (iv). Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon the occurrence of any of the events in clauses (i), (ii) or (iii) of Section 205(a) hereof and receipt by the Security Registrar of the following documentation:
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(1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder substantially in the form of Exhibit D, including the certifications in item (2)(a) thereof;
(2) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof, and, if such beneficial interest is in a Regulation S Global Note, a certificate substantially in the form of Exhibit C;
(3) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B, including the certifications in item (2) thereof;
(4) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(a) thereof;
(5) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(b) thereof; or
(6) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 205(h), and the Company shall execute and the Trustee shall authenticate and mail to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 205(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Security Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names such Subordinated Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 205(c)(i) shall bear the applicable Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the events in clauses (i), (ii) or (iii) of Section 205(a) hereof and:
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(1) such exchange or transfer is effected pursuant to the Registered Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be exchanged, in the case of an exchange, or the transferee, in the case of a transfer, makes the certifications in the applicable Letter of Transmittal or pursuant to the applicable Agent’s Message in accordance with the Registration Rights Agreement;
(2) such transfer is effected pursuant to a Shelf Registration Statement in accordance with the Registration Rights Agreement;
(3) the Security Registrar receives the following: (A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit D, including the certifications in item (1)(b) thereof; or (B) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B, including the certifications in item (4) thereof; and, in each such case set forth in this subparagraph (3), if the Security Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Security Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend applicable to such Restricted Global Note are no longer required in order to maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events in clauses (i), (ii) or (iii) of Section 205(a) hereof and satisfaction of the conditions set forth in Section 205(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 205(h) hereof, and the Company shall execute and the Trustee shall authenticate and mail to the Person designated in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 205(c)(iii) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Security Registrar through instructions from or through the Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names such Subordinated Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 205(c)(iii) shall not bear any Private Placement Legend.
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(iv) In connection with any proposed exchange from a beneficial interest in a Global Note to a Definitive Note, the Company or the Depositary shall provide or cause to be provided to the Trustee sufficient information (but only to the extent that the Company or Depositary has knowledge of such information) so as to allow the Trustee to comply with any applicable tax reporting obligations, including, without limitation, any cost basis reporting obligations under Section 6045 of the Code. The Trustee may rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Subordinated Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Security Registrar of the following documentation:
(1) if the Holder of such Restricted Definitive Note proposes to exchange such Subordinated Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder substantially in the form of Exhibit D, including the certifications in item (2)(b) thereof;
(2) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof, and, if such Restricted Definitive Note to be transferred bears the Regulation S Legend, a certificate substantially in the form of Exhibit C;
(3) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in the form of Exhibit B, including the certifications in item (2) thereof;
(4) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(a) thereof;
(5) if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(b) thereof; or
(6) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate substantially in the form of Exhibit B, including the certifications in item (3)(c) thereof;
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the Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of, in the case of clause (1) above, the applicable Restricted Global Note, in the case of clause (2) above, the applicable 144A Global Note, and in the case of clause (3) above, the applicable Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Subordinated Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if:
(1) such exchange or transfer is effected pursuant to the Registered Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be exchanged, in the case of an exchange, or the transferee, in the case of a transfer, makes the certifications in the applicable Letter of Transmittal or pursuant to the applicable Agent’s Message in accordance with the Registration Rights Agreement;
(2) such transfer is effected pursuant to a Shelf Registration Statement in accordance with the Registration Rights Agreement;
(3) the Security Registrar receives the following: (A) if the Holder of such Definitive Notes proposes to exchange such Subordinated Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit D, including the certifications in item (1)(c) thereof; or (B) if the Holder of such Definitive Notes proposes to transfer such Subordinated Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof; and, in each such case set forth in this subparagraph (3), if the Security Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Security Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend applicable to such Restricted Definitive Note are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of this Section 204(d)(ii), the Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Subordinated Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a
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request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes. If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of a Company Order for the authentication of one or more Unrestricted Global Notes in accordance with Section 303 of the Base Indenture and Section 201(c) hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so exchanged or transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 205(e) the Security Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Security Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Security Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 205(e):
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Security Registrar receives the following: (1) if the transfer will be made to a QIB in accordance with Rule 144A, then the transferor must deliver a certificate substantially in the form of Exhibit B, including the certifications in item (1) thereof, and, if such Restricted Definitive Note to be transferred bears the Regulation S Legend, a certificate substantially in the form of Exhibit C; (2) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications in item (2) thereof; or (3) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B, including the certifications required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:
(1) such exchange or transfer is effected pursuant to the Registered Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be exchanged, in the case of an exchange, or the transferee, in the case of a transfer, makes the certifications in the applicable Letter of Transmittal or pursuant to the applicable Agent’s Message in accordance with the Registration Rights Agreement;
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(2) such transfer is effected pursuant to a Shelf Registration Statement in accordance with the Registration Rights Agreement;
(3) the Security Registrar receives the following: (A) if the Holder of such Restricted Definitive Notes proposes to exchange such Subordinated Notes for an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit D, including the certifications in item (1)(d) thereof; or (B) if the Holder of such Restricted Definitive Notes proposes to transfer such Subordinated Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications in item (4) thereof; and, in each such case set forth in this subparagraph (3), if the Security Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Security Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend applicable to such Restricted Definitive Note are no longer required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Subordinated Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Security Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Registered Exchange Offer. Upon the occurrence of a Registered Exchange Offer in accordance with the Registration Rights Agreement, the Company shall issue and the Trustee shall authenticate in accordance with Section 303 of the Base Indenture and Section 201(c) hereof (i) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes tendered for acceptance by Persons that provide certifications in the applicable Letter of Transmittal or pursuant to the applicable Agent’s Message in accordance with the Registration Rights Agreement, and accepted for exchange in a Registered Exchange Offer and (ii) Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in a Registered Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company shall execute and the Trustee shall authenticate and deliver to the Persons designated by the holders of Restricted Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under the Subordinated Indenture unless specifically stated otherwise in the applicable provisions of the Subordinated Indenture:
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(i) 144A Legend. Except as permitted by paragraph (iv) below, each 144A Global Note and each Definitive Note sold in reliance on Section 4(a)(2) of the Securities Act to QIBs (and all Subordinated Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF AN INTEREST IN THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF ANY INTEREST IN THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT, (A) UNTIL ONE YEAR (OR SUCH SHORTER PERIOD AS MAY BE PERMITTED UNDER RULE 144 UNDER THE SECURITIES ACT) AFTER SEPTEMBER 30, 2020, SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (2) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO THE COMPANY OR ANY OF ITS AFFILIATES, (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, (B) IN CONNECTION WITH ANY OFFER, SALE OR TRANSFER PURSUANT TO (A)(2) OR (A)(5) ABOVE, SUBJECT TO THE RIGHT OF THE COMPANY AND TRUSTEE TO REQUEST IN ADVANCE OF ANY OFFER, SALE OR OTHER TRANSFER, CERTIFICATIONS AND/OR OTHER INFORMATION, AND AN OPINION OF COUNSEL, IN EACH CASE SATISFACTORY TO THE COMPANY AND TRUSTEE AND (C) THE HOLDER OF AN INTEREST IN THE SECURITY EVEIDENCED HEREBY WILL, AND EACH SUBSEQUENT HOLDER OF SUCH AN INTEREST IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY INTEREST IN THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSES (A) AND (B) ABOVE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER ONLY AT THE DIRECTION AND IN THE ABSOLUTE DISCRETION OF THE ISSUER AFTER THE RESALE RESTRICTION TERMINATION DATE.”
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(ii) Regulation S Legend. Except as permitted by paragraph (iv) below, each Regulation S Global Note and each Definitive Note sold in reliance on Rule 903 (and all Subordinated Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION NOT SUBJECT TO REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR IN A TRANSACTION EXEMPT FROM OR OTHERWISE NOT SUBJECT TO SUCH REGISTRATION. THE HOLDER OF AN INTEREST IN THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT, UNTIL 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (I) THE DATE ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (II) SEPTEMBER 30, 2020, SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND WHICH TAKES DELIVERY OF AN INTEREST IN THE RULE 144A GLOBAL NOTE (AS DEFINED IN THE ELEVENTH SUPPLEMENTAL INDENTURE) AND WHICH HAS FURNISHED TO THE TRUSTEE OR ITS AGENT A CERTIFICATE REPRESENTING THAT THE TRANSFERREE IS PURCHASING AN INTEREST IN THE SUBORDINATED NOTES EVIDENCED HEREBY FOR ITS OWN ACCOUNT OR AN ACCOUNT WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION AND THAT IT AND ANY SUCH ACCOUNT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND IS AWARE THAT THE SALE TO IT IS BEING MADE IN RELIANCE ON RULE 144A AND, IF APPLICABLE, ACKNOWLEDGING THAT IT HAS RECEIVED SUCH INFORMATION REGARDING THE COMPANY AS SUCH TRANSFEREE HAS REQUESTED PURSUANT TO RULE 144A OR HAS DETERMINED NOT TO REQUEST SUCH INFORMATION AND THAT IT IS AWARE THAT THE TRANSFEROR IS RELYING UPON ITS FOREGOING REPRESENTATIONS IN ORDER TO CLAIM THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144A, (2) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO THE COMPANY OR ANY OF ITS AFFILIATES, (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
21
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DATE ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (B) SEPTEMBER 30, 2020.”
(iii) Global Note Legend. Each Global Note shall bear a legend in substantially the following form (with appropriate changes in the last sentence if DTC is not the Depositary):
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SUBORDINATED INDENTURE GOVERNING THIS SUBORDINATED NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 205(h) OF THE ELEVENTH SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 205(a) OF THE ELEVENTH SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 308 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SUBORDINATED NOTES IN DEFINITIVE FORM, THIS SUBORDINATED NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
(iv) Notwithstanding the foregoing (i) and (ii), any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section 205 (and all Subordinated Notes issued in exchange therefor or substitution thereof) shall not bear any Private Placement Legend.
22
(h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 308 of the Base Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of a Company Order for authentication thereof in accordance with Section 303 of the Base Indenture and Section 201(c) hereof or at the Security Registrar’s request.
(ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 304, 305, 306, 1106 and 1307 of the Base Indenture).
(iii) The Company shall not be required (1) to issue, to register the transfer of or to exchange any Subordinated Notes during a period beginning at the opening of business 15 days before the day of any selection of Subordinated Notes for redemption under Section 203 hereof and ending at the close of business on the day of selection or (2) to register the transfer of or to exchange a Subordinated Note between a Record Date (as defined in the Subordinated Notes) with respect to such Subordinated Note and the next succeeding Interest Payment Date with respect to such Subordinated Note.
(iv) Neither the Security Registrar nor the Company shall be required to register the transfer of or exchange any Subordinated Note selected for redemption in whole or in part.
(v) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under the Subordinated Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
23
(vi) Prior to due presentment for the registration of a transfer of any Subordinated Note, the Trustee, any Paying Agent and the Company may deem and treat the Person in whose name any Subordinated Note is registered as the absolute owner of such Subordinated Note for the purpose of receiving payment of principal of, premium, if any, and interest on such Subordinated Notes and for all other purposes, and none of the Trustee, any Paying Agent or the Company shall be affected by notice to the contrary.
(vii) Upon surrender for registration of transfer of any Subordinated Note at the office or agency of the Company designated pursuant to Section 1202 of the Base Indenture, the Company shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Subordinated Notes of any authorized denomination or denominations of a like aggregate principal amount.
(viii) At the option of the Holder, Subordinated Notes may be exchanged for other Subordinated Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Subordinated Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 303 of the Base Indenture and Section 201(c) hereof.
(ix) All certifications, certificates and Opinions of Counsel required to be submitted to the Security Registrar pursuant to this Section 205 to effect a registration of transfer or exchange may be submitted by facsimile or e-mail.
(x) Neither the Trustee nor any Paying Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
(xi) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Subordinated Indenture or under applicable law with respect to any transfer of any interest in any Subordinated Note other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, the Subordinated Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(xii) To the extent the Trustee reasonably requests such information, a Holder of Subordinated Notes proposing to exchange or transfer such Subordinated Notes shall provide or cause to be provided to the Trustee sufficient information (but only to the extent that such Holder has knowledge of such information) to allow the Trustee to comply with any applicable tax reporting obligations, including, without limitation, any cost basis reporting obligations under Section 6045 of the Code. The Trustee may rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
24
Section 206 Acceleration of Maturity.
The first paragraph of Section 502 of the Base Indenture shall be replaced in its entirety with the following:
“If an Event of Default with respect to Subordinated Debt Securities of any series at the time Outstanding occurs, the principal of all Outstanding Subordinated Debt Securities of such series, premium, if any, and any interest accrued thereon shall become due and payable immediately without any further action on the part of the Trustee or the Holders of such series of Subordinated Debt Securities. Upon payment of such amounts, all obligations of the Company in respect of the payment of principal of and interest on the Subordinated Debt Securities of such series shall terminate.”
Section 207 Supplemental Indentures Without Consent of Holders.
Section 1101 of the Base Indenture is amended to:
(i) Replace Section 1101(2) in its entirety with the following:
“(2) to add to the covenants of the Company, for the benefit of the Holders of all or any series of Subordinated Debt Securities (and, if such covenants are to be for the benefit of less than all such series, stating that such covenants are expressly being included solely for the benefit of such series), to surrender any right or power herein conferred upon the Company, or to provide for guarantees of the Subordinated Notes; or”
(ii) Replace the period following “in any material respect” in Section 1101(10) with “; or”; and
(iii) Add the following immediately after Section 1101(10):
“(11) to make any change that does not materially adversely affect the interests of the Holders of Outstanding Subordinated Debt Securities of any series; provided that solely with respect to this Section 1101(11), the Trustee shall be entitled to receive and may conclusively rely on an Officer’s Certificate from the Company that any such modification, amendment or supplement does not materially adversely affect the interests of any Holder of Outstanding Subordinated Debt Securities of any series; or
(12) to conform the terms of the Subordinated Debt Securities or this Subordinated Indenture with the description set forth in any offering memorandum or other similar document relating to such Subordinated Debt Securities.”
25
Section 208 Corporate Trust Office.
With respect to the Subordinated Notes, the principal corporate trust office of the Trustee named in the preamble of the Base Indenture as of the date of executed hereof is located at 240 Greenwich Street, New York, New York 10286.
Section 209 Notice of Defaults.
Section 602 of the Base Indenture is amended to delete the following:
“either (A) a Responsible Officer of the Trustee assigned to the Trustee’s Corporate Trust Administration Department shall have actual knowledge of such default or (B)”
Section 210 Registration Rights Agreement.
In addition to the rights set forth under the Indenture, under the Registration Rights Agreement, Holders of Subordinated Notes and owners of beneficial interests therein may be entitled to the benefits of certain provisions of the Registration Rights Agreement. By its acceptance of an interest in the Notes, each Holder or owner of a beneficial interest in a Subordinated Note is deemed to have acknowledged and agreed to be bound by the provisions of the Registration Rights Agreement. The Company will provide a copy of the Registration Rights Agreement to any such Holder.
ARTICLE III
MISCELLANEOUS
Section 301 Effect of Headings.
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 302 Successors and Assigns.
All covenants and agreements in this Eleventh Supplemental Indenture by the parties hereto shall bind their respective successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
Section 303 Separability Clause.
In case any provision in this Eleventh Supplemental Indenture or in the Subordinated Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 304 Governing Law.
This Eleventh Supplemental Indenture and the Subordinated Notes shall be deemed to be contracts made and to be performed entirely in the State of New York, and for all purposes shall be governed by and construed in accordance with the laws of said State without regard to the conflicts of law rules of said State.
26
Section 305 U.S.A. PATRIOT Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Eleventh Supplemental Indenture agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
Section 306 FATCA.
The Paying Agent and the Trustee shall be entitled to deduct or withhold from payments under this Eleventh Supplemental Indenture to the extent necessary to comply with an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretations thereof (“FATCA”). The Company hereby covenants that it will provide the Trustee and Paying Agent with sufficient information (but only to the extent that the Company has knowledge of such information) so as to enable the Trustee and Paying Agent to determine whether or not each of the Trustee and Paying Agent, respectively, is obliged, in respect of any payments to be made by it pursuant to this Eleventh Supplemental Indenture, to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code, or otherwise imposed pursuant to Section 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations thereof or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement).
Section 307 Electronic Communications.
The Trustee agrees to accept and act upon notices, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 308 Funds Held by the Trustee.
Funds held by the Trustee are to be held uninvested unless otherwise agreed in writing; provided that no such written agreement shall be required with respect to U.S. Government Obligations deposited with the Trustee in accordance with Article XIV of the Base Indenture.
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* * * * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. As provided in the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), this instrument may be executed by facsimile signature or other electronic signature complying with such Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Eleventh Supplemental Indenture to be duly executed as of the day and year first above written.
| CITIZENS FINANCIAL GROUP, INC. | ||
| By: | /s/ David C. Lindenauer | |
| Name: | David C. Lindenauer | |
| Title: | Executive Vice President and Treasurer | |
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | /s/ Laurence J. O’Brien | |
| Name: | Laurence J. O’Brien | |
| Title: | ||
[Signature Page to the Eleventh Supplemental Indenture]
EXHIBIT A
EACH PURCHASER OR HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE OR HOLDING OF THE NOTES THAT (A) IT IS NOT A PLAN (INCLUDING A PENSION, PROFIT-SHARING OR OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), AND AN ENTITY SUCH AS A COLLECTIVE INVESTMENT FUND, A PARTNERSHIP, A SEPARATE ACCOUNT WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF SUCH PLANS, AN INDIVIDUAL RETIREMENT ACCOUNT, A KEOGH PLAN FOR SELF-EMPLOYED INDIVIDUALS AND ANY OTHER PLAN THAT IS SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)) AND ITS PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THE NOTES IS NOT MADE ON BEHALF OF OR WITH “PLAN ASSETS” OF ANY PLAN WITHIN THE MEANING OF U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101 AS MODIFIED BY ERISA SECTION 3(42), OR (B) ITS PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THE NOTES WILL NOT RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE. IN ADDITION, EACH PURCHASER OR HOLDER OF THE NOTES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE OR HOLDING OF THE NOTES THAT SUCH PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION IS NOT AND WILL NOT BE PROHIBITED UNDER SIMILAR RULES TO THE “PROHIBITED TRANSACTION” RULES OF ERISA OR SECTION 4975 OF THE CODE UNDER OTHER APPLICABLE LAWS OR REGULATIONS.
BY ITS ACCEPTANCE OF AN INTEREST IN THIS SUBORDINATED NOTE, EACH HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN IS DEEMED TO HAVE ACKNOWLEDGED AND AGREED TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT. THE COMPANY WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN WITHOUT CHARGE UPON WRITTEN REQUEST TO ITS PRINCIPAL PLACE OF BUSINESS.
[CUSIP]1
[ISIN]2
[RULE 144A] [REGULATION S] [GLOBAL] NOTE
representing up to
| 1 | 144A CUSIP: 174610AV7 |
Regulation S CUSIP: U1745PAE9
| 2 | 144A ISIN: US174610AV73 |
Regulation S ISIN: USU1745PAE98
A-1
$[ ]
2.638% Subordinated Notes due 2032
| No. | $[ ] |
Citizens Financial Group, Inc., a Delaware corporation, promises to pay to ________or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of _______ United States Dollars] on September 30, 2032.
Interest Payment Dates: Beginning on March 30, 2021, March 30 and September 30 of each year
Record Dates: March 15 and September 15
Additional provisions of this Subordinated Note are set forth on the other side of this Subordinated Note.
C-A-2
IN WITNESS HEREOF, the Company has caused this Subordinated Note to be duly executed.
Dated:
| CITIZENS FINANCIAL GROUP, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
A-3
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes referred to in the within-mentioned Subordinated Indenture:
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Dated:
A-4
[Back of Subordinated Note]
2.638% Subordinated Notes due 2032
Capitalized terms used herein shall have the meanings assigned to them in the Subordinated Indenture referred to below unless otherwise indicated.
1. INTEREST. Citizens Financial Group, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Subordinated Note at a rate per annum of 2.638% from September 30, 2020 until maturity, computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on this Subordinated Note (i) semi-annually in arrears on March 30 and September 30 of each year (each, an “Interest Payment Date”) or, if any such day is not a Business Day, on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date to the Holder of record of this Subordinated Note on the 15th day preceding the applicable Interest Payment Date with respect to such Interest Payment Date (each, a “Record Date”). Interest on this Subordinated Note will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including September 30, 2020; provided that the first Interest Payment Date shall be March 30, 2021.
2. METHOD OF PAYMENT. The Company will pay interest on this Subordinated Note to the Person that is the registered Holder of this Subordinated Note at the close of business on the Record Date (whether or not a Business Day) next preceding the Interest Payment Date, even if this Subordinated Note is cancelled after such Record Date and on or before such Interest Payment Date, except as provided in Section 307 of the Base Indenture with respect to Defaulted Interest. The interest payment at maturity will be payable to the person to whom principal is payable. Payment of interest may be made by check mailed to the Holders at their addresses set forth in the Security Register of Holders; provided that (a) all payments of principal, premium, if any, and interest on, Subordinated Notes represented by Global Notes registered in the name of or held by DTC or its nominee will be made by wire transfer of immediately available funds to the accounts specified by the Holder or Holders thereof or as may otherwise be in accordance with the Applicable Procedures of DTC and (b) all payments of principal, premium, if any, and interest with respect to certificated Subordinated Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, the Trustee under the Subordinated Indenture, will act as Paying Agent and Security Registrar. The Company may change any Paying Agent or Security Registrar without notice to the Holders. The Company or any of its Subsidiaries may act in any such capacity.
A-5
4. SUBORDINATED INDENTURE. The Company issued the Subordinated Notes under a Subordinated Indenture, dated as of September 28, 2012 (the “Base Indenture”), as amended and supplemented by an Eleventh Supplemental Indenture, dated as of September 30, 2020 (the “Eleventh Supplemental Indenture,” and the Base Indenture, as amended and supplemented, including by the Eleventh Supplemental Indenture, the “Subordinated Indenture”), each between the Company and the Trustee. This Subordinated Note is one of a duly authorized issue of Subordinated Debt Securities of the Company designated as its “2.638% Subordinated Notes due 2032”. To the extent any provision of this Subordinated Note conflicts with the express provisions of the Subordinated Indenture, the provisions of the Subordinated Indenture shall govern and be controlling.
5. REDEMPTION. Except as described below, the Subordinated Notes shall not be redeemable at the Company’s option:
(a) Optional Redemption. The Company may, at its option, redeem the Subordinated Notes (i) in whole or in part at any time and from time to time on or after July 2, 2032 and (ii) in whole but not in part at any time within 90 days following a Regulatory Capital Treatment Event. Any such redemption of the Subordinated Notes shall be subject to the Company obtaining the prior approval of the Appropriate Federal Banking Agency, if then required under capital rules applicable to the Company.
(b) Redemption Price. In the case of any redemption of the Subordinated Notes, the redemption price shall be equal to 100% of the Outstanding principal amount of the Subordinated Notes to be redeemed, plus any accrued and unpaid interest thereon to, but excluding, the Redemption Date. If the Redemption Price in respect of the Subordinated Notes is not paid on the Redemption Date, interest on the Outstanding principal amount of the Subordinated Notes will continue to accrue until the Redemption Price is actually paid or set aside for payment.
(c) Redemption Procedures. Except as modified by Section 203 of the Eleventh Supplemental Indenture, any redemption of the Subordinated Notes under Section 203 of the Eleventh Supplemental Indenture is subject to the terms and conditions of Article XIII of the Base Indenture.
6. MANDATORY REDEMPTION, SINKING FUND. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Subordinated Notes.
7. DEFEASANCE. The Subordinated Notes will be subject to defeasance and covenant defeasance pursuant to Article XIV of the Base Indenture.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Subordinated Notes are in registered form without coupons in a minimum denomination of $2,000 and authorized denominations of any integral multiples of $1,000 in excess thereof. The transfer of Subordinated Notes may be registered and Subordinated Notes may be exchanged as provided in the Subordinated Indenture. The Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Subordinated Indenture. The Company need not exchange or register the transfer of any Subordinated Note or portion of a Subordinated Note selected for redemption. Also, the Company need not exchange of register the transfer of any Subordinated Notes for a period of 15 days before a selection of Subordinated Notes to be redeemed.
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9. PERSONS DEEMED OWNERS. The registered Holder of a Subordinated Note may be treated as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. The Subordinated Indenture or the Subordinated Notes may be amended or supplemented as provided in the Subordinated Indenture.
11. DEFAULTS AND REMEDIES. The only Events of Default with respect to the Subordinated Notes are set forth in Article V of the Base Indenture. If an Event of Default with respect to the Subordinated Notes occurs, the principal of all Outstanding Subordinated Notes and any accrued and unpaid interest thereon shall become due and payable immediately without any further action on the part of the Trustee or the Holders. Holders may not enforce the Subordinated Indenture or the Subordinated Notes except as provided in the Subordinated Indenture. Subject to certain limitations, Holders of not less than a majority in principal amount of the Outstanding Subordinated Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Subordinated Notes notice of any default under the Subordinated Indenture (except a default relating to the payment of principal of, premium, if any, or interest on the Subordinated Notes) if it determines that withholding notice is in their interest. The Holders of not less than a majority in principal amount of the Outstanding Subordinated Notes may on behalf of the Holders of all of the Subordinated Notes waive any past default or its consequences under the Subordinated Indenture, except a default in payment of the principal of, premium, if any, or interest on, any of the Subordinated Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Subordinated Indenture, and the Company is required to give prompt written notice to the Trustee of any insolvency, bankruptcy, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation, dissolution or winding-up or relating to the Company as a whole, whether voluntary or involuntary, or of any default with respect to any Senior Indebtedness that would prevent the Trustee from making any payment in respect of the Subordinated Notes under Section 1501 of the Base Indenture.
12. AUTHENTICATION. This Subordinated Note shall not be entitled to any benefit under the Subordinated Indenture or be valid or obligatory for any purpose until authenticated by the Trustee in accordance with the Subordinated Indenture.
13. GOVERNING LAW. THE SUBORDINATED INDENTURE AND THIS SUBORDINATED NOTE SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE.
14. CUSIP NUMBERS AND ISIN. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers and ISINs to be printed on the Subordinated Notes and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Subordinated Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
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The Company will furnish to any Holder upon written request and without charge a copy of the Subordinated Indenture. Requests may be made to the Company at the following address:
Citizens Financial Group, Inc.
600 Washington Boulevard
Stamford, CT 06901
Fax No.: 203-583-4937
Attention: Robin S. Elkowitz
A-8
ASSIGNMENT FORM
To assign this Subordinated Note, fill in the form below:
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| (Insert assignee’s legal name) |
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| (Insert assignee’s social security or tax I.D. no.) |
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| (Print or type assignee’s name, address and zip code) |
and irrevocably appoint __________________________________________________________ to transfer this Subordinated Note on the books of the Company. The agent may substitute another to act for him.
Date: ______________________
| Your Signature: |
| |
| (Please sign exactly as your name appears on the face of this Subordinated Note) |
Signature Guarantee*: _____________________________________________
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial Outstanding principal amount of this Global Note is $[ ]. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
| Date of Exchange |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal |
Signature of |
| * | This schedule should be included only if the Subordinated Note is issued in global form. |
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EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE OF TRANSFER
Citizens Financial Group, Inc.
600 Washington Boulevard
Stamford, CT 06901
The Bank of New York Mellon 240 Greenwich Street
New York, New York 10286
| Re: | 2.638% Subordinated Notes due 2032 |
Reference is hereby made to the Subordinated Indenture, dated as of September 28, 2012, as amended and supplemented by the Eleventh Supplemental Indenture, dated as of September 30, 2020 (as so amended and supplemented, the “Subordinated Indenture”), between Citizens Financial Group, Inc. and The Bank of New York Mellon. Capitalized terms used but not defined herein shall have the meanings given to them in the Subordinated Indenture.
(the “Transferor”) owns and proposes to transfer the Subordinated Note[s] or interest in such Subordinated Note[s] specified in Annex A hereto, in the principal amount of $ in such Subordinated Note[s] or interests (the “Transfer”), to (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT 144A GLOBAL NOTE OR RELEVANT DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A and, accordingly, the Transferor hereby further certifies that the interest in the Subordinated Note[s] is being transferred to a Person that the Transferor reasonably believes is purchasing such interest in the Subordinated Note[s] for its own account, or for an account with respect to which such Person exercises sole investment discretion, such Person and each such account is a “qualified institutional buyer” (as defined in Rule 144A), and such Person is aware that the sale to it is being made in reliance on Rule 144A.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT REGULATION S GLOBAL NOTE OR RELEVANT DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S promulgated under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf
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knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the applicable Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Subordinated Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Subordinated Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
| (a) | [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act; or |
| (b) | [ ] such Transfer is being effected to the Company or a subsidiary thereof; or |
| (c) | [ ] such Transfer is being effected pursuant to an effective registration Statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act. |
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
| (a) | [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 promulgated under the Securities Act and in compliance with the transfer restrictions contained in the Subordinated Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Subordinated Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Subordinated Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Subordinated Indenture. |
| (b) | [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 of Regulation S promulgated under the Securities Act and in compliance with the transfer restrictions contained in the Subordinated Indenture and any applicable blue sky securities laws of |
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| any state of the United States and (ii) the restrictions on transfer contained in the Subordinated Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Subordinated Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Subordinated Indenture. |
| (c) | [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Subordinated Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Subordinated Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Subordinated Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Subordinated Indenture. |
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This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
| [Insert Name of Transferor] | ||
| By: |
| |
| Name: | ||
| Title: |
Date:
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ANNEX A TO CERTIFICATE OF TRANSFER
| 1. | The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (a) OR (b)]
| (a) | [ ] a beneficial interest in the: |
| (i) | [ ] 144A Global Note ([CUSIP: ]3), or |
| (ii) | [ ] Regulation S Global Note ([CUSIP: ]4), or |
| (b) | [ ] a Restricted Definitive Note. |
| 2. | After the Transfer the Transferee will hold: |
[CHECK ONE]
| (a) | [ ] a beneficial interest in the: |
| (i) | [ ] 144A Global Note ([CUSIP: ]1), or |
| (ii) | [ ] Regulation S Global Note ([CUSIP: ]2)or |
| (iii) | [ ] Unrestricted Global Note ([ ] [ ]); or |
| (b) | [ ] a Restricted Definitive Note; or |
| (c) | [ ] an Unrestricted Definitive Note, in accordance with the terms of the Subordinated Indenture. |
| 3 | 144A Initial CUSIP: 174610AV7 |
| 4 | Regulation S Initial CUSIP: U1745PAE9 |
B-5
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE OF TRANSFER
Citizens Financial Group, Inc.
600 Washington Boulevard
Stamford, CT 06901
The Bank of New York Mellon 240 Greenwich Street
New York, New York 10286
| Re: | 2.638% Subordinated Notes due 2032 |
Reference is hereby made to the Subordinated Indenture, dated as of September 28, 2012, as amended and supplemented by the Eleventh Supplemental Indenture, dated as of September 30, 2020 (as so amended and supplemented, the “Subordinated Indenture”), between Citizens Financial Group, Inc. and The Bank of New York Mellon. Capitalized terms used but not defined herein shall have the meanings given to them in the Subordinated Indenture.
(the “Transferor”) owns and proposes to transfer the Subordinated Note[s] or interest in such Subordinated Note[s] specified in Annex A hereto, in the principal amount of $ in such Subordinated Note[s] or interests (the “Transfer”), to (the “Transferee”), as further specified in Annex A hereto.
In connection with the Transfer, the Transferee hereby certifies that: The Transfer is being effected pursuant to and in accordance with Rule 144A and, accordingly, the Transferee hereby certifies that the Transferee is purchasing an interest in the Subordinated Note[s] for its own account or an account with respect to which it exercise sole investment discretion and that it and any such account is a “qualified institutional buyer” (as defined in Rule 144A) and is aware that the sale to it is being made in reliance on Rule 144A. [Include if applicable under Rule 144A(d): The Transferee acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the Transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.]
C-1
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
| [Insert Name of Transferee] | ||
| By: |
| |
| Name: | ||
| Title: |
Date:
C-2
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
Citizens Financial Group, Inc.
600 Washington Boulevard
Stamford, CT 06901
The Bank of New York Mellon 240 Greenwich Street
New York, New York 10286
| Re: | 2.638% Subordinated Notes due 2032 |
Reference is hereby made to the Subordinated Indenture, dated as of September 28, 2012, as amended and supplemented by the Eleventh Supplemental Indenture, dated as of September 30, 2020 (as so amended and supplemented, the “Subordinated Indenture”), between Citizens Financial Group, Inc. and The Bank of New York Mellon. Capitalized terms used but not defined herein shall have the meanings given to them in the Subordinated Indenture.
(the “Owner”) owns and proposes to exchange the Subordinated Note[s] or interest in such Subordinated Note[s] specified herein, in the principal amount of $ in such Subordinated Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE OF THE SAME SERIES
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OF THE SAME SERIES. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note of the same series in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Subordinated Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
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b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE OF THE SAME SERIES. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note of the same series, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Subordinated Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OF THE SAME SERIES. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note of the same series, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Subordinated Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE OF THE SAME SERIES. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note of the same series, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Subordinated Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OF THE SAME SERIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES OF THE SAME SERIES
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE OF THE SAME SERIES. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note of the same series with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being
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acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Subordinated Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Subordinated Indenture and the Securities Act.
b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE OF THE SAME SERIES. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note [ ] Regulation S Global Note of the same series, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Subordinated Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Subordinated Indenture and the Securities Act.
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This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
| [Insert Name of Transferor] | ||
| By: |
| |
| Name: | ||
| Title: |
Date:
D-4
Exhibit 4.2
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF AN INTEREST IN THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF ANY INTEREST IN THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT, (A) UNTIL ONE YEAR (OR SUCH SHORTER PERIOD AS MAY BE PERMITTED UNDER RULE 144 UNDER THE SECURITIES ACT) AFTER SEPTEMBER 30, 2020, SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (2) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO THE COMPANY OR ANY OF ITS AFFILIATES, (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, (B) IN CONNECTION WITH ANY OFFER, SALE OR TRANSFER PURSUANT TO (A)(2) OR (A)(5) ABOVE, SUBJECT TO THE RIGHT OF THE COMPANY AND TRUSTEE TO REQUEST IN ADVANCE OF ANY OFFER, SALE OR OTHER TRANSFER, CERTIFICATIONS AND/OR OTHER INFORMATION, AND AN OPINION OF COUNSEL, IN EACH CASE SATISFACTORY TO THE COMPANY AND TRUSTEE AND (C) THE HOLDER OF AN INTEREST IN THE SECURITY EVEIDENCED HEREBY WILL, AND EACH SUBSEQUENT HOLDER OF SUCH AN INTEREST IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY INTEREST IN THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSES (A) AND (B) ABOVE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER ONLY AT THE DIRECTION AND IN THE ABSOLUTE DISCRETION OF THE ISSUER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SUBORDINATED INDENTURE GOVERNING THIS SUBORDINATED NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 205(h) OF THE ELEVENTH SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 205(a) OF THE ELEVENTH SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 308 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SUBORDINATED NOTES IN DEFINITIVE FORM, THIS SUBORDINATED NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OR HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE OR HOLDING OF THE NOTES THAT (A) IT IS NOT A PLAN (INCLUDING A PENSION, PROFIT-SHARING OR OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), AND AN ENTITY SUCH AS A COLLECTIVE INVESTMENT FUND, A PARTNERSHIP, A SEPARATE ACCOUNT WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF SUCH PLANS, AN INDIVIDUAL RETIREMENT ACCOUNT, A KEOGH PLAN FOR SELF-EMPLOYED INDIVIDUALS AND ANY OTHER PLAN THAT IS SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)) AND ITS PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THE NOTES IS NOT MADE ON BEHALF OF OR WITH “PLAN ASSETS” OF ANY PLAN WITHIN THE MEANING OF U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101 AS MODIFIED BY ERISA SECTION 3(42), OR (B) ITS PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THE NOTES WILL NOT RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE. IN ADDITION, EACH PURCHASER OR HOLDER OF THE NOTES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE OR HOLDING OF THE NOTES THAT SUCH PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION IS NOT AND WILL NOT BE PROHIBITED UNDER SIMILAR RULES TO THE “PROHIBITED TRANSACTION” RULES OF ERISA OR SECTION 4975 OF THE CODE UNDER OTHER APPLICABLE LAWS OR REGULATIONS.
BY ITS ACCEPTANCE OF AN INTEREST IN THIS SUBORDINATED NOTE, EACH HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN IS DEEMED TO HAVE ACKNOWLEDGED AND AGREED TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT. THE COMPANY WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN WITHOUT CHARGE UPON WRITTEN REQUEST TO ITS PRINCIPAL PLACE OF BUSINESS.
CUSIP: 174610AV7
ISIN: US174610AV73
RULE 144A GLOBAL NOTE
representing up to
$[ ]
2.638% Subordinated Notes due 2032
| No. | $[ ] |
Citizens Financial Group, Inc., a Delaware corporation, promises to pay to ________or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of _______ United States Dollars] on September 30, 2032.
Interest Payment Dates: Beginning on March 30, 2021, March 30 and September 30 of each year
Record Dates: March 15 and September 15
Additional provisions of this Subordinated Note are set forth on the other side of this Subordinated Note.
IN WITNESS HEREOF, the Company has caused this Subordinated Note to be duly executed.
Dated:
| CITIZENS FINANCIAL GROUP, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes referred to in the within-mentioned Subordinated Indenture:
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Dated:
[Back of Subordinated Note]
2.638% Subordinated Notes due 2032
Capitalized terms used herein shall have the meanings assigned to them in the Subordinated Indenture referred to below unless otherwise indicated.
1. INTEREST. Citizens Financial Group, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Subordinated Note at a rate per annum of 2.638% from September 30, 2020 until maturity, computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on this Subordinated Note (i) semi-annually in arrears on March 30 and September 30 of each year (each, an “Interest Payment Date”) or, if any such day is not a Business Day, on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date to the Holder of record of this Subordinated Note on the 15th day preceding the applicable Interest Payment Date with respect to such Interest Payment Date (each, a “Record Date”). Interest on this Subordinated Note will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including September 30, 2020; provided that the first Interest Payment Date shall be March 30, 2021.
2. METHOD OF PAYMENT. The Company will pay interest on this Subordinated Note to the Person that is the registered Holder of this Subordinated Note at the close of business on the Record Date (whether or not a Business Day) next preceding the Interest Payment Date, even if this Subordinated Note is cancelled after such Record Date and on or before such Interest Payment Date, except as provided in Section 307 of the Base Indenture with respect to Defaulted Interest. The interest payment at maturity will be payable to the person to whom principal is payable. Payment of interest may be made by check mailed to the Holders at their addresses set forth in the Security Register of Holders; provided that (a) all payments of principal, premium, if any, and interest on, Subordinated Notes represented by Global Notes registered in the name of or held by DTC or its nominee will be made by wire transfer of immediately available funds to the accounts specified by the Holder or Holders thereof or as may otherwise be in accordance with the Applicable Procedures of DTC and (b) all payments of principal, premium, if any, and interest with respect to certificated Subordinated Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, the Trustee under the Subordinated Indenture, will act as Paying Agent and Security Registrar. The Company may change any Paying Agent or Security Registrar without notice to the Holders. The Company or any of its Subsidiaries may act in any such capacity.
4. SUBORDINATED INDENTURE. The Company issued the Subordinated Notes under a Subordinated Indenture, dated as of September 28, 2012 (the “Base Indenture”), as amended and supplemented by an Eleventh Supplemental Indenture, dated as of September 30, 2020 (the “Eleventh Supplemental Indenture,” and the Base Indenture, as amended and supplemented, including by the Eleventh Supplemental Indenture, the “Subordinated Indenture”), each between the Company and the Trustee. This Subordinated Note is one of a duly authorized issue of Subordinated Debt Securities of the Company designated as its “2.638% Subordinated Notes due 2032”. To the extent any provision of this Subordinated Note conflicts with the express provisions of the Subordinated Indenture, the provisions of the Subordinated Indenture shall govern and be controlling.
5. REDEMPTION. Except as described below, the Subordinated Notes shall not be redeemable at the Company’s option:
(a) Optional Redemption. The Company may, at its option, redeem the Subordinated Notes (i) in whole or in part at any time and from time to time on or after July 2, 2032 and (ii) in whole but not in part at any time within 90 days following a Regulatory Capital Treatment Event. Any such redemption of the Subordinated Notes shall be subject to the Company obtaining the prior approval of the Appropriate Federal Banking Agency, if then required under capital rules applicable to the Company.
Redemption Price. In the case of any redemption of the Subordinated Notes, the redemption price shall be equal to 100% of the Outstanding principal amount of the Subordinated Notes to be redeemed, plus any accrued and unpaid interest thereon to, but excluding, the Redemption Date. If the Redemption Price in respect of the Subordinated Notes is not paid on the Redemption Date, interest on the Outstanding principal amount of the Subordinated Notes will continue to accrue until the Redemption Price is actually paid or set aside for payment.
Redemption Procedures. Except as modified by Section 203 of the Eleventh Supplemental Indenture, any redemption of the Subordinated Notes under Section 203 of the Eleventh Supplemental Indenture is subject to the terms and conditions of Article XIII of the Base Indenture.
6. MANDATORY REDEMPTION, SINKING FUND. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Subordinated Notes.
7. DEFEASANCE. The Subordinated Notes will be subject to defeasance and covenant defeasance pursuant to Article XIV of the Base Indenture.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Subordinated Notes are in registered form without coupons in a minimum denomination of $2,000 and authorized denominations of any integral multiples of $1,000 in excess thereof. The transfer of Subordinated Notes may be registered and Subordinated Notes may be exchanged as provided in the Subordinated Indenture. The Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Subordinated Indenture. The Company need not exchange or register the transfer of any Subordinated Note or portion of a Subordinated Note selected for redemption. Also, the Company need not exchange of register the transfer of any Subordinated Notes for a period of 15 days before a selection of Subordinated Notes to be redeemed.
9. PERSONS DEEMED OWNERS. The registered Holder of a Subordinated Note may be treated as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. The Subordinated Indenture or the Subordinated Notes may be amended or supplemented as provided in the Subordinated Indenture.
11. DEFAULTS AND REMEDIES. The only Events of Default with respect to the Subordinated Notes are set forth in Article V of the Base Indenture. If an Event of Default with respect to the Subordinated Notes occurs, the principal of all Outstanding Subordinated Notes and any accrued and unpaid interest thereon shall become due and payable immediately without any further action on the part of the Trustee or the Holders. Holders may not enforce the Subordinated Indenture or the Subordinated Notes except as provided in the Subordinated Indenture. Subject to certain limitations, Holders of not less than a majority in principal amount of the Outstanding Subordinated Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Subordinated Notes notice of any default under the Subordinated Indenture (except a default relating to the payment of principal of, premium, if any, or interest on the Subordinated Notes) if it determines that withholding notice is in their interest. The Holders of not less than a majority in principal amount of the Outstanding Subordinated Notes may on behalf of the Holders of all of the Subordinated Notes waive any past default or its consequences under the Subordinated Indenture, except a default in payment of the principal of, premium, if any, or interest on, any of the Subordinated Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Subordinated Indenture, and the Company is required to give prompt written notice to the Trustee of any insolvency, bankruptcy, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation, dissolution or winding-up or relating to the Company as a whole, whether voluntary or involuntary, or of any default with respect to any Senior Indebtedness that would prevent the Trustee from making any payment in respect of the Subordinated Notes under Section 1501 of the Base Indenture.
12. AUTHENTICATION. This Subordinated Note shall not be entitled to any benefit under the Subordinated Indenture or be valid or obligatory for any purpose until authenticated by the Trustee in accordance with the Subordinated Indenture.
13. GOVERNING LAW. THE SUBORDINATED INDENTURE AND THIS SUBORDINATED NOTE SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE.
14. CUSIP NUMBERS AND ISIN. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers and ISINs to be printed on the Subordinated Notes and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Subordinated Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the Subordinated Indenture. Requests may be made to the Company at the following address:
Citizens Financial Group, Inc.
600 Washington Boulevard
Stamford, CT 06901
Fax No.: 203-583-4937
Attention: Robin S. Elkowitz
ASSIGNMENT FORM
To assign this Subordinated Note, fill in the form below:
(Insert assignee’s legal name)
(Insert assignee’s social security or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint __________________________________________________________ to transfer this Subordinated Note on the books of the Company. The agent may substitute another to act for him.
Date: ______________________
| Your Signature: |
| |
| (Please sign exactly as your name appears on the face of this Subordinated Note) |
Signature Guarantee*: _____________________________________________
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial Outstanding principal amount of this Global Note is $[ ]. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
| Date of Exchange |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal |
Signature of |
| * | This schedule should be included only if the Subordinated Note is issued in global form. |
Exhibit 4.3
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION NOT SUBJECT TO REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR IN A TRANSACTION EXEMPT FROM OR OTHERWISE NOT SUBJECT TO SUCH REGISTRATION. THE HOLDER OF AN INTEREST IN THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT, UNTIL 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (I) THE DATE ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (II) SEPTEMBER 30, 2020, SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND WHICH TAKES DELIVERY OF AN INTEREST IN THE RULE 144A GLOBAL NOTE (AS DEFINED IN THE ELEVENTH SUPPLEMENTAL INDENTURE) AND WHICH HAS FURNISHED TO THE TRUSTEE OR ITS AGENT A CERTIFICATE REPRESENTING THAT THE TRANSFERREE IS PURCHASING AN INTEREST IN THE SUBORDINATED NOTES EVIDENCED HEREBY FOR ITS OWN ACCOUNT OR AN ACCOUNT WITH RESPECT TO WHICH IT EXERCISES SOLE INVESTMENT DISCRETION AND THAT IT AND ANY SUCH ACCOUNT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND IS AWARE THAT THE SALE TO IT IS BEING MADE IN RELIANCE ON RULE 144A AND, IF APPLICABLE, ACKNOWLEDGING THAT IT HAS RECEIVED SUCH INFORMATION REGARDING THE COMPANY AS SUCH TRANSFEREE HAS REQUESTED PURSUANT TO RULE 144A OR HAS DETERMINED NOT TO REQUEST SUCH INFORMATION AND THAT IT IS AWARE THAT THE TRANSFEROR IS RELYING UPON ITS FOREGOING REPRESENTATIONS IN ORDER TO CLAIM THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144A, (2) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO THE COMPANY OR ANY OF ITS AFFILIATES, (4) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DATE ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (B) SEPTEMBER 30, 2020.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SUBORDINATED INDENTURE GOVERNING THIS SUBORDINATED NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 205(h) OF THE ELEVENTH SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 205(a) OF THE ELEVENTH SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 308 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SUBORDINATED NOTES IN DEFINITIVE FORM, THIS SUBORDINATED NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OR HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE OR HOLDING OF THE NOTES THAT (A) IT IS NOT A PLAN (INCLUDING A PENSION, PROFIT-SHARING OR OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), AND AN ENTITY SUCH AS A COLLECTIVE INVESTMENT FUND, A PARTNERSHIP, A SEPARATE ACCOUNT WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF SUCH PLANS, AN INDIVIDUAL RETIREMENT ACCOUNT, A KEOGH PLAN FOR SELF-EMPLOYED INDIVIDUALS AND ANY OTHER PLAN THAT IS SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)) AND ITS PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THE NOTES IS NOT MADE ON BEHALF OF OR WITH “PLAN ASSETS” OF ANY PLAN WITHIN THE MEANING OF U.S. DEPARTMENT OF LABOR REGULATION SECTION 2510.3-101 AS MODIFIED BY ERISA SECTION 3(42), OR (B)
ITS PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THE NOTES WILL NOT RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE. IN ADDITION, EACH PURCHASER OR HOLDER OF THE NOTES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE OR HOLDING OF THE NOTES THAT SUCH PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION IS NOT AND WILL NOT BE PROHIBITED UNDER SIMILAR RULES TO THE “PROHIBITED TRANSACTION” RULES OF ERISA OR SECTION 4975 OF THE CODE UNDER OTHER APPLICABLE LAWS OR REGULATIONS.
BY ITS ACCEPTANCE OF AN INTEREST IN THIS SUBORDINATED NOTE, EACH HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN IS DEEMED TO HAVE ACKNOWLEDGED AND AGREED TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT. THE COMPANY WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER OF THIS SUBORDINATED NOTE OR ANY INTEREST HEREIN WITHOUT CHARGE UPON WRITTEN REQUEST TO ITS PRINCIPAL PLACE OF BUSINESS.
CUSIP: U1745PAE9
ISIN: USU1745PAE98
REGULATION S GLOBAL NOTE
representing up to
$[ ]
2.638% Subordinated Notes due 2032
| No. |
$[ ] |
Citizens Financial Group, Inc., a Delaware corporation, promises to pay to ________or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of _______ United States Dollars] on September 30, 2032.
Interest Payment Dates: Beginning on March 30, 2021, March 30 and September 30 of each year
Record Dates: March 15 and September 15
Additional provisions of this Subordinated Note are set forth on the other side of this Subordinated Note.
IN WITNESS HEREOF, the Company has caused this Subordinated Note to be duly executed.
Dated:
| CITIZENS FINANCIAL GROUP, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes referred to in the within-mentioned Subordinated Indenture:
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
Dated:
[Back of Subordinated Note]
2.638% Subordinated Notes due 2032
Capitalized terms used herein shall have the meanings assigned to them in the Subordinated Indenture referred to below unless otherwise indicated.
1. INTEREST. Citizens Financial Group, Inc., a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Subordinated Note at a rate per annum of 2.638% from September 30, 2020 until maturity, computed on the basis of a 360-day year comprised of twelve 30-day months. The Company will pay interest on this Subordinated Note (i) semi-annually in arrears on March 30 and September 30 of each year (each, an “Interest Payment Date”) or, if any such day is not a Business Day, on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date to the Holder of record of this Subordinated Note on the 15th day preceding the applicable Interest Payment Date with respect to such Interest Payment Date (each, a “Record Date”). Interest on this Subordinated Note will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including September 30, 2020; provided that the first Interest Payment Date shall be March 30, 2021.
2. METHOD OF PAYMENT. The Company will pay interest on this Subordinated Note to the Person that is the registered Holder of this Subordinated Note at the close of business on the Record Date (whether or not a Business Day) next preceding the Interest Payment Date, even if this Subordinated Note is cancelled after such Record Date and on or before such Interest Payment Date, except as provided in Section 307 of the Base Indenture with respect to Defaulted Interest. The interest payment at maturity will be payable to the person to whom principal is payable. Payment of interest may be made by check mailed to the Holders at their addresses set forth in the Security Register of Holders; provided that (a) all payments of principal, premium, if any, and interest on, Subordinated Notes represented by Global Notes registered in the name of or held by DTC or its nominee will be made by wire transfer of immediately available funds to the accounts specified by the Holder or Holders thereof or as may otherwise be in accordance with the Applicable Procedures of DTC and (b) all payments of principal, premium, if any, and interest with respect to certificated Subordinated Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon, the Trustee under the Subordinated Indenture, will act as Paying Agent and Security Registrar. The Company may change any Paying Agent or Security Registrar without notice to the Holders. The Company or any of its Subsidiaries may act in any such capacity.
4. SUBORDINATED INDENTURE. The Company issued the Subordinated Notes under a Subordinated Indenture, dated as of September 28, 2012 (the “Base Indenture”), as amended and supplemented by an Eleventh Supplemental Indenture, dated as of September 30, 2020 (the “Eleventh Supplemental Indenture,” and the Base Indenture, as amended and supplemented, including by the Eleventh Supplemental Indenture, the “Subordinated Indenture”), each between the Company and the Trustee. This Subordinated Note is one of a duly authorized issue of Subordinated Debt Securities of the Company designated as its “2.638% Subordinated Notes due 2032”. To the extent any provision of this Subordinated Note conflicts with the express provisions of the Subordinated Indenture, the provisions of the Subordinated Indenture shall govern and be controlling.
5. REDEMPTION. Except as described below, the Subordinated Notes shall not be redeemable at the Company’s option:
(a) Optional Redemption. The Company may, at its option, redeem the Subordinated Notes (i) in whole or in part at any time and from time to time on or after July 2, 2032 and (ii) in whole but not in part at any time within 90 days following a Regulatory Capital Treatment Event. Any such redemption of the Subordinated Notes shall be subject to the Company obtaining the prior approval of the Appropriate Federal Banking Agency, if then required under capital rules applicable to the Company.
Redemption Price. In the case of any redemption of the Subordinated Notes, the redemption price shall be equal to 100% of the Outstanding principal amount of the Subordinated Notes to be redeemed, plus any accrued and unpaid interest thereon to, but excluding, the Redemption Date. If the Redemption Price in respect of the Subordinated Notes is not paid on the Redemption Date, interest on the Outstanding principal amount of the Subordinated Notes will continue to accrue until the Redemption Price is actually paid or set aside for payment.
Redemption Procedures. Except as modified by Section 203 of the Eleventh Supplemental Indenture, any redemption of the Subordinated Notes under Section 203 of the Eleventh Supplemental Indenture is subject to the terms and conditions of Article XIII of the Base Indenture.
6. MANDATORY REDEMPTION, SINKING FUND. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Subordinated Notes.
7. DEFEASANCE. The Subordinated Notes will be subject to defeasance and covenant defeasance pursuant to Article XIV of the Base Indenture.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Subordinated Notes are in registered form without coupons in a minimum denomination of $2,000 and authorized denominations of any integral multiples of $1,000 in excess thereof. The transfer of Subordinated Notes may be registered and Subordinated Notes may be exchanged as provided in the Subordinated Indenture. The Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Subordinated Indenture. The Company need not exchange or register the transfer of any Subordinated Note or portion of a Subordinated Note selected for redemption. Also, the Company need not exchange of register the transfer of any Subordinated Notes for a period of 15 days before a selection of Subordinated Notes to be redeemed.
9. PERSONS DEEMED OWNERS. The registered Holder of a Subordinated Note may be treated as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. The Subordinated Indenture or the Subordinated Notes may be amended or supplemented as provided in the Subordinated Indenture.
11. DEFAULTS AND REMEDIES. The only Events of Default with respect to the Subordinated Notes are set forth in Article V of the Base Indenture. If an Event of Default with respect to the Subordinated Notes occurs, the principal of all Outstanding Subordinated Notes and any accrued and unpaid interest thereon shall become due and payable immediately without any further action on the part of the Trustee or the Holders. Holders may not enforce the Subordinated Indenture or the Subordinated Notes except as provided in the Subordinated Indenture. Subject to certain limitations, Holders of not less than a majority in principal amount of the Outstanding Subordinated Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Subordinated Notes notice of any default under the Subordinated Indenture (except a default relating to the payment of principal of, premium, if any, or interest on the Subordinated Notes) if it determines that withholding notice is in their interest. The Holders of not less than a majority in principal amount of the Outstanding Subordinated Notes may on behalf of the Holders of all of the Subordinated Notes waive any past default or its consequences under the Subordinated Indenture, except a default in payment of the principal of, premium, if any, or interest on, any of the Subordinated Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Subordinated Indenture, and the Company is required to give prompt written notice to the Trustee of any insolvency, bankruptcy, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation, dissolution or winding-up or relating to the Company as a whole, whether voluntary or involuntary, or of any default with respect to any Senior Indebtedness that would prevent the Trustee from making any payment in respect of the Subordinated Notes under Section 1501 of the Base Indenture.
12. AUTHENTICATION. This Subordinated Note shall not be entitled to any benefit under the Subordinated Indenture or be valid or obligatory for any purpose until authenticated by the Trustee in accordance with the Subordinated Indenture.
13. GOVERNING LAW. THE SUBORDINATED INDENTURE AND THIS SUBORDINATED NOTE SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE.
14. CUSIP NUMBERS AND ISIN. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers and ISINs to be printed on the Subordinated Notes and the Trustee may use CUSIP numbers and ISINs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Subordinated Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the Subordinated Indenture. Requests may be made to the Company at the following address:
Citizens Financial Group, Inc.
600 Washington Boulevard
Stamford, CT 06901
Fax No.: 203-583-4937
Attention: Robin S. Elkowitz
ASSIGNMENT FORM
To assign this Subordinated Note, fill in the form below:
(Insert assignee’s legal name)
(Insert assignee’s social security or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint __________________________________________________________ to transfer this Subordinated Note on the books of the Company. The agent may substitute another to act for him.
Date: ______________________
| Your Signature: |
| |
| (Please sign exactly as your name appears on the face of this Subordinated Note) |
Signature Guarantee*: _____________________________________________
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial Outstanding principal amount of this Global Note is $[ ]. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global or Definitive Note for an interest in this Global Note, have been made:
| Date of Exchange |
Amount of |
Amount of |
Principal |
Signature of |
| * | This schedule should be included only if the Subordinated Note is issued in global form. |
Exhibit 4.4
CITIZEN FINANCIAL GROUP, INC.
2.638% Subordinated Notes due 2032
REGISTRATION RIGHTS AGREEMENT
September 30, 2020
Credit Suisse Securities (USA) LLC
(the “Lead Dealer Manager”)
Citizens Capital Markets, Inc.
(the “Dealer Manager” and,
together with the Lead Dealer Manager,
the “Dealer Managers”)
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
Ladies and Gentlemen:
Citizens Financial Group, Inc., a Delaware corporation (the “Company”), proposes to issue its 2.638% Subordinated Notes due 2032 (the “New Notes”) in connection with its offers to exchange for New Notes and cash (such offers, the “Exchange Offers”) the Company’s outstanding 4.150% Subordinated Notes due 2022 , 3.750% Subordinated Notes due 2024 , 4.023% Subordinated Notes due 2024 , the 4.350% Subordinated Notes due 2025 and 4.300% Subordinated Notes due 2025 (collectively, the “Old Notes”) upon the terms set forth in the Dealer Manager Agreement, dated as of September 21, 2020 (the “Dealer Manager Agreement”), between the Company and you as the dealer managers (the “Dealer Managers”), relating to the Exchange Offers and the related cash tender offers for the Old Notes. The New Notes are to be issued under the Subordinated Indenture dated as of September 28, 2012 (the “Base Indenture), between the Company (as successor to RBS Citizens Financial Group, Inc.) and The Bank of New York Mellon (the “Trustee”), as supplemented by the Eleventh Supplemental Indenture dated as of the date hereof (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”). To induce the Dealer Managers to enter into the Dealer Manager Agreement and to satisfy a condition to your obligations thereunder, the Company agrees with you for your benefit and the benefit of the holders (each a “Holder” and, collectively, the “Holders”) from time to time of the New Notes or the Exchange Notes (as hereinafter defined), as follows:
1. Definitions. Capitalized terms used herein without definition shall have their respective meanings set forth in the Dealer Manager Agreement. As used in this Agreement, the following capitalized defined terms shall have the following meanings:
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Affiliate” of any specified person shall mean any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified person. For purposes of this definition, control of a person shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such person whether by contract or otherwise; and the terms “controlling” and “controlled” shall have meanings correlative to the foregoing.
“Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which commercial banks are authorized or required by law, regulation or executive order to close in New York City, New York.
“Commission” shall mean the Securities and Exchange Commission.
“Company” shall have the meaning set forth in the preamble hereto.
“Company Indemnitee” shall have the meaning set forth in Section 6(b) hereof.
“Dealer Manager Agreement” shall have the meaning set forth in the preamble hereto.
“Dealer Managers” shall have the meaning set forth in the preamble hereto.
“DTC” shall have the meaning set forth in Section 2(c)(i) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Exchange Notes” shall mean debt securities of the Company identical in all material respects to the New Notes (except that the transfer restrictions shall be modified or eliminated, as appropriate) and to be issued under the Indenture.
“Exchange Offers” shall have the meaning set forth in the preamble hereto.
“Exchange Offer Registration Period” shall mean the 90-day period following the effectiveness of the Exchange Offer Registration Statement, exclusive of any period during which any stop order shall be in effect suspending the effectiveness of the Exchange Offer Registration Statement.
“Exchange Offer Registration Statement” shall mean a registration statement of the Company on an appropriate form under the Act with respect to the Registered Exchange Offer, all amendments and supplements to such registration statement, including post-effective amendments thereto, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
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“Exchanging Dealer” shall mean any Holder (which may include any Dealer Manager) that is a Broker-Dealer that acquired Exchange Notes in the Registered Exchange Offer in exchange for New Notes that it acquired for its own account as a result of market-making activities or other trading activities (but not directly from the Company or any Affiliate of the Company).
“Holder” and “Holders” shall have the meanings set forth in the preamble hereto.
“Holders’ Information” shall have the meaning set forth in Section 3(b)(iii) hereof.
“Indemnified Holder” shall have the meaning set forth in Section 6(a) hereof.
“Indenture” shall have the meaning set forth in the preamble hereto.
“Issuer FWP” shall have the meaning set forth in Section 6(a) hereof.
“New Notes” shall have the meaning set forth in the preamble hereto.
“Old Notes” shall have the meaning set forth in the preamble hereto.
“Prospectus” shall mean the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the New Notes or the Exchange Notes covered by such Registration Statement, and all amendments and supplements thereto, including all exhibits thereto and all material incorporated by reference therein.
“Registered Exchange Offer” shall mean the proposed offer of the Company to issue and deliver to the Holders of the New Notes that are not prohibited by any law or policy of the Commission from participating in such offer, in exchange for the New Notes, a like aggregate principal amount of the Exchange Notes.
“Registration Statement” shall mean any Exchange Offer Registration Statement or Shelf Registration Statement that covers any of the New Notes or the Exchange Notes pursuant to the provisions of this Agreement, any amendments and supplements to such registration statement, including post-effective amendments (in each case including the Prospectus contained therein), all exhibits thereto and all material incorporated by reference therein.
“Settlement Date” shall mean the date on which the Exchange Offers have been consummated.
“Shelf Registration” shall mean a registration under the Act effected pursuant to Section 3 hereof.
“Shelf Registration Period” has the meaning set forth in Section 3(b)(ii) hereof.
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“Shelf Registration Statement” shall mean a “shelf’ registration statement of the Company pursuant to the provisions of Section 3 hereof which covers some or all of the New Notes, on an appropriate form under Rule 415 under the Act, or any similar rule that may be adopted by the Commission, amendments and supplements to such registration statement, including post-effective amendments and the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Transfer-Restricted Securities” means each New Note until the earlier to occur of (i) the date on which such New Note has been exchanged for a freely transferable applicable Exchange Note in the Registered Exchange Offer, (ii) the date on which it has been effectively registered under the Act and disposed of in accordance with the Shelf Registration Statement or (iii) the date on which it is sold to the public pursuant to Rule 144 (or any similar provision then in force under the Act) under the Act or may be sold by a person that is not an “affiliate” (as defined in Rule 144) of the Company without restriction or limitation pursuant to Rule 144 (or any similar provision then in force under the Act).
“Trustee” shall have the meaning set forth in the preamble hereto.
2. Registered Exchange Offer.
(a) The Company shall use its commercially reasonable efforts to prepare and, not later than 230 days following the Settlement Date, file with the Commission the Exchange Offer Registration Statement with respect to the Registered Exchange Offer. The Company shall use its commercially reasonable efforts to (i) cause the Exchange Offer Registration Statement to become effective under the Act within 320 days of the Settlement Date and (ii) complete the Registered Exchange Offer within 365 days of the Settlement Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder electing to exchange New Notes for Exchange Notes (provided that such Holder is not an Affiliate of the Company or is an Affiliate that complies with the registration and prospectus delivery requirements of the Act to the extent applicable in connection with the resale of the Exchange Notes, acquires the Exchange Notes in the ordinary course of such Holder’s business, has no arrangements or understandings with any person to participate in the distribution (within the meaning of the Act) of the Exchange Notes and is not prohibited by any law, rule or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Notes without any limitations or restrictions under the Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company shall:
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| (i) | deliver or otherwise make available to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal or similar documentation and related documents, provided, however, Holders will be deemed to have received the documents referred to above upon delivery of such documents to The Depository Trust Company (“DTC”) for distribution to its participants; |
| (ii) | keep the Registered Exchange Offer open for not less than 20 Business Days and not more than 30 Business Days after the date on which notice thereof is delivered to the Holders (or, in each case, longer if required by applicable law); |
| (iii) | use its commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective under the Act, supplemented and amended as required under the Act to ensure that it is available for sales of Exchange Notes by Exchanging Dealers during the Exchange Offer Registration Period; |
| (iv) | utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in New York City, which may be the Trustee or an Affiliate of the Trustee; |
| (v) | permit Holders to withdraw tendered New Notes at any time prior to 5:00 p.m. (New York City time), on the last Business Day on which the Registered Exchange Offer is open; |
| (vi) | either (x) in the Exchange Offer Registration Statement or (y) prior to effectiveness of the Exchange Offer Registration Statement, in a supplemental letter to the Commission, (A) state that the Company is conducting the Registered Exchange Offer in reliance on the position of the Commission in the Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Morgan Stanley & Co., Inc. (pub. avail. June 5, 1991) and Shearman & Sterling LLP (pub. avail. July 2, 1993) no-action letters, and (B) include a representation that the Company has not entered into any arrangement or understanding with any person to distribute the Exchange Notes to be received in the Registered Exchange Offer following completion of the Registered Exchange Offer and that, to the Company’s information and belief, each Holder participating in the Registered Exchange Offer is acquiring the Exchange Notes in its ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the Exchange Notes; and |
| (vii) | comply in all respects with all other applicable law. |
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(d) As soon as practicable after the close of the Registered Exchange Offer, the Company shall:
| (i) | accept for exchange all New Notes validly tendered and not validly withdrawn pursuant to the Registered Exchange Offer; |
| (ii) | deliver to the Trustee for cancellation in accordance with Section 4(n) all New Notes so accepted for exchange; and |
| (iii) | cause the Trustee promptly to authenticate and deliver to each Holder of New Notes a principal amount of Exchange Notes equal to the principal amount of the New Notes of such Holder that the Company has accepted for exchange. |
(e) Each Holder is hereby deemed to acknowledge and agree that any Broker-Dealer and any such Holder using the Registered Exchange Offer to participate in a distribution of the Exchange Notes (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in the Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Morgan Stanley & Co., Inc. (pub. avail. June 5, 1991) no-action letters, as interpreted in the Commission’s letter to Shearman & Sterling LLP (pub. avail. July 2, 1993) and similar no-action letters, and (y) must comply with the registration and prospectus delivery requirements of the Act in connection with any secondary resale transaction, and any secondary resale transactions by such Holder must be covered by an effective registration statement containing the selling security holder and plan of distribution information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are of Exchange Notes obtained by such Holder in exchange for New Notes acquired by such Holder directly from the Company or one of its Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to provide a written representation to the Company that, at the time of the consummation of the Registered Exchange Offer:
| (i) | any Exchange Notes received by such Holder will be acquired in the ordinary course of such Holder’s business; |
| (ii) | such Holder is not engaged in, and does not intend to engage in, and will have no arrangement or understanding with any person to participate in the distribution of the New Notes or the Exchange Notes within the meaning of the Act; |
| (iii) | such Holder is not an Affiliate of the Company or, if such Holder is an Affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Act to the extent applicable in connection with the resale of the Exchange Notes; and |
| (iv) | such Holder is not prohibited by any law, rule or policy of the Commission from participating in the Registered Exchange Offer. |
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(f) Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any Prospectus forming part thereof and any supplement thereto complies in all material respects with the Act and the rules and regulations of the Commission thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any Prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such Prospectus, does not, as of the consummation of the Registered Exchange Offer, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
3. Shelf Registration.
(a) If the New Notes held by non-Affiliates of the Company are not freely tradable pursuant to Rule 144 of the Act and the applicable interpretations of the Commission and: (i) due to any change in law or in applicable interpretations thereof by the staff of the Commission, the Company determines upon the advice of outside counsel that it is not permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii) any Holder of New Notes notifies the Company in writing not more than 20 days after completion of the Registered Exchange Offer that it is not eligible to participate in the Registered Exchange Offer (other than due to its status as an Affiliate of the Company or as a Broker-Dealer); or (iii) for any other reason, the Registered Exchange Offer is not consummated within 365 days after the Settlement Date; then the Company shall use its commercially reasonable efforts to effect a Shelf Registration Statement in accordance with subsection (b) below.
| (b) | (i) | The Company shall, as promptly as practicable (but in no event more than 60 days after the Company is so required pursuant to Section 3(a)), file with the Commission, and thereafter shall use its commercially reasonable efforts to cause to be declared effective under the Act within 150 days after the Company is so required pursuant to Section 3(a), a Shelf Registration Statement covering resales of the New Notes by the Holders thereof from time to time in accordance with the methods of distribution elected by such Holders and set forth in such Shelf Registration Statement; provided, however, that no Holder shall be entitled to have the New Notes held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder; and provided further that with respect to a Shelf Registration Statement required pursuant to Section 3(a)(iii), the consummation of a Registered Exchange Offer shall relieve the Company of its obligations under this Section 3(b) but only in respect of its obligations under Section 3(a)(iii). |
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| (ii) | The Company shall use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by the Act, in order to permit the Prospectus forming part thereof to be usable by Holders until the earlier of the date that is two years after the Settlement Date or the date that all New Notes registered for resale under the Shelf Registration Statement (A) have been sold pursuant to the Shelf Registration Statement or (B) are freely tradable by non-Affiliates of the Company pursuant to Rule 144 of the Act (and applicable interpretations thereof by the Commission’s staff) (in any such case, such period being called the “Shelf Registration Period”). The Company shall be deemed not to have used its commercially reasonable efforts to keep the Shelf Registration Statement effective during the Shelf Registration Period if it voluntarily takes any action that would result in Holders of New Notes registered for resale thereby not being able to offer and sell such New Notes during that period, unless (A) such action is required by applicable law or (B) such action is taken by the Company in good faith and for, in the Company’s good faith judgment, valid business reasons (not including avoidance of the Company’s obligations hereunder), including, without limitation, the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 4(i) hereof, if applicable. | |||||
| (iii) | Notwithstanding any other provisions hereof, the Company will ensure that (A) any Shelf Registration Statement and any amendment thereto and any Prospectus forming part thereof and any supplement thereto complies in all material respects with the Act and the rules and regulations of the Commission thereunder, (B) any Shelf Registration Statement and any amendment thereto (in either case, other than with respect to information included therein in reliance upon or in conformity with written information furnished to the Company by or on behalf of any Holder of Transfer-Restricted Securities specifically for use therein (the “Holders’ Information”) does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (C) any Prospectus forming part of any Shelf Registration Statement, and any supplement to such prospectus (in either case, other than with respect to Holders’ Information), does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. | |||||
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4. Additional Registration Procedures. In connection with any Shelf Registration Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following provisions shall apply:
(a) The Company shall:
| (i) | furnish to counsel for the Dealer Managers, prior to the filing thereof with the Commission, a copy of any Exchange Offer Registration Statement and any Shelf Registration Statement, and each amendment thereof, and each supplement, if any, to the Prospectus included therein (excluding all documents incorporated by reference therein after the initial filing); |
| (ii) | include the information set forth (A) in Annex A hereto on the cover of the Prospectus contained in the Exchange Offer Registration Statement, (B) in Annex B hereto in a section of the Prospectus setting forth details of the Registered Exchange Offer, (C) in Annex C hereto in the underwriting or plan of distribution section of such Prospectus, and (D) in Annex D hereto in the letter of transmittal or similar documentation delivered pursuant to the Registered Exchange Offer; and |
| (iii) | in the case of a Shelf Registration Statement, include the information regarding the Holders that propose to sell New Notes pursuant to the Shelf Registration Statement as selling security holders to the extent required by Item 507 of Regulation S-K (or, if permitted by Commission Rule 430B(b), in a Prospectus supplement that becomes a part thereof pursuant to Commission Rule 430B(f)); provided that, notwithstanding anything in this Agreement to the contrary, the Company shall not be required to amend or supplement a Shelf Registration Statement or any Prospectus forming a part thereof after such Shelf Registration Statement has been declared effective by the Commission more than once per calendar month to reflect additional Holders or changes in the number of New Notes to be sold by any Holder. |
(b) The Company shall advise counsel for the Dealer Managers or the Holders of New Notes covered by any Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer Registration Statement that has provided in writing to the Company a telephone or facsimile number and address for notices, and, if requested by any such person, shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v) below shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension):
| (i) | when a Registration Statement and any amendment thereto has been filed with the Commission and when such Registration Statement or any post-effective amendment thereto has become effective; |
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| (ii) | of any request by the Commission after the effective date of such Registration Statement for any amendment or supplement to a Registration Statement or the Prospectus or for additional information in connection with the Registration Statement; |
| (iii) | of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose; |
| (iv) | of the receipt by the Company of any notification with respect to the suspension of the qualification of the securities included in any Registration Statement for sale in any jurisdiction or the initiation of any proceeding for such purpose; and |
| (v) | of the happening of any event that requires any change in a Registration Statement or the Prospectus so that, as of such date, the statements therein do not contain any untrue statement of a material fact and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading provided that the Company shall not be required to disclose the reasons for such change. |
Upon receiving notice of the occurrence of any of the events listed in subsections (ii) through (v) of this Section 4(b), each Holder and any Exchanging Dealer will, upon request by the Company in writing, immediately discontinue disposition of New Notes or Exchange Notes pursuant to a Registration Statement until such Holder’s or Exchanging Dealer’s receipt of copies of the supplemented or amended Prospectus contemplated by Section 4(i) or until it is advised in writing by the Company that use of the applicable Prospectus may resume, and, if so directed by the Company, such Holder or Exchanging Dealer will deliver to the Company (at the Company’s expense) all copies in such Holder’s or Exchanging Dealer’s possession, other than permanent file copies, of the Prospectus covering such New Notes or Exchange Notes that was current at the time of receipt of such notice.
(c) The Company shall use its commercially reasonable efforts to prevent the issuance and, if issued, to obtain the withdrawal at the earliest practicable time of any order suspending the effectiveness of any Registration Statement or the qualification of the securities therein for sale in any jurisdiction.
(d) Prior to the effective date of any Registration Statement, the Company will use its commercially reasonable efforts to register or qualify, or cooperate with the Holders of New Notes or Exchange Notes included therein and their respective counsel in connection with the registration or qualification of, such New Notes or Exchange Notes
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for offer and sale under the securities or blue sky laws of such jurisdictions as any such Holder reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the New Notes or Exchange Notes covered by such Registration Statement; provided that, the Company will not be required to qualify as a broker-dealer or generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(e) The Company shall furnish to each Holder of New Notes covered by any Shelf Registration Statement, without charge and upon request in writing, at least one conformed copy of such Shelf Registration Statement and any post-effective amendment thereto, and, if the Holder so requests in writing, all material incorporated therein by reference and all exhibits thereto.
(f) The Company shall, during the Shelf Registration Period, promptly deliver to each Holder of New Notes covered by any Shelf Registration Statement, without charge, as many copies of the Prospectus (including each preliminary Prospectus) included in such Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the foregoing in connection with the offering and sale of the New Notes covered by the Prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement in accordance with applicable law and the terms hereof.
(g) The Company shall furnish to each Exchanging Dealer that so requests, without charge, at least one conformed copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, and, if the Exchanging Dealer so requests in writing, all material incorporated by reference therein and all exhibits thereto.
(h) The Company shall promptly deliver to you, each Exchanging Dealer and each other person required to deliver a prospectus during the Exchange Offer Registration Period, without charge, as many copies of the final Prospectus included in such Exchange Offer Registration Statement and any amendment or supplement thereto as any such person may reasonably request. The Company consents to the use of such Prospectus or any amendment or supplement thereto by you, any Exchanging Dealer and any such other person that may be required to deliver a prospectus following the Registered Exchange Offer in connection with the offering and sale of the Exchange Notes covered by the Prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration Statement in accordance with applicable law and the terms hereof.
(i) Upon the occurrence of any event contemplated by subsections (ii) through (v) of Section 4(b) hereof during the period for which the Company is required to maintain an effective Registration Statement, the Company shall promptly prepare a post-effective amendment to the applicable Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter delivered to the purchasers of the securities covered thereby, the Prospectus will not include an untrue statement of a material fact or omit to state any material fact
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required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that, during the Exchange Offer Registration Period or the Shelf Registration Period, the Company shall not be required to amend or supplement a Registration Statement or Prospectus, in the event that, and for a period not to exceed 120 days in any consecutive 12-month period, the Company determines in good faith that the disclosure of any such event would be materially adverse to the Company or otherwise relates to a pending business transaction that has not yet been publicly disclosed. In such circumstances, the Exchange Offer Registration Period and the Shelf Registration Period shall each be extended by the number of days from and including the date of the giving of a notice of suspension pursuant to Section 4(b) hereof to and including the date the Holders of New Notes and Exchanging Dealers shall have received such amended or supplemented Prospectus pursuant to this Section 4(i).
| (j) | (i) | Not later than the effective date of the Exchange Offer Registration Statement, the Company shall provide a CUSIP number for the Exchange Notes registered under the Exchange Offer Registration Statement. Not later than the date of the closing of the Exchange Offer, the Company shall provide the Trustee with printed certificates for such Exchange Notes, free of any restrictive legends, in a form eligible for deposit with DTC. | ||||
| (ii) | On the first Business Day following the effective date of any Shelf Registration Statement hereunder or as soon as possible thereafter, the Company shall use its reasonable efforts to establish with the Trustee a procedure by which Holders of New Notes that are “restricted securities” within the meaning of Rule 144(a)(3) under the Act may transfer, upon completion of a sale of New Notes under such Shelf Registration Statement, their interests therein to an “unrestricted” global security free of any stop or restriction on DTC’s system with respect to the New Notes, including the issuance of an applicable CUSIP number with respect to such unrestricted securities; provided, however that this Section 4(j)(ii) shall be applicable only to Holders that are named as selling Holders in the Shelf Registration Statement and agree in writing to be bound by all of the provisions of this Agreement applicable to such Holder. Upon compliance with the foregoing requirements of this Section 4(j)(ii), the Company shall provide the Trustee with printed certificates for such New Notes in a form eligible for deposit with DTC. | |||||
In the event the Company is unable to cause DTC to take the actions described in this Section 4(j), the Company shall take such actions reasonably necessary to provide, as soon as practicable, a CUSIP number, if necessary, for the New Notes registered and sold under the Shelf Registration Statement and to cause the CUSIP number described in clause (i) or clause (ii) above to be assigned to the New Notes or Exchange Notes, as the case may be (or to the maximum aggregate principal amount of the New Notes or Exchange Notes, as the case may be, to which such number may be assigned).
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(k) The Company shall comply with all applicable rules and regulations of the Commission and shall make generally available to its security holders as soon as practicable after the effective date of the applicable Registration Statement an earnings statement satisfying the provisions of Section 11(a) of the Act.
(l) The Company may require each Holder of New Notes to be registered pursuant to any Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of such New Notes as the Company may from time to time reasonably require for inclusion in such Shelf Registration Statement, and each such Holder shall promptly furnish to the Company any additional information required in order to make the information previously disclosed to the Company under this Section 4(l) not misleading. The Company may exclude from such Shelf Registration Statement the New Notes of any Holder that fails to furnish such information within a reasonable time after receiving such request.
(m) The Company shall, if requested, use its commercially reasonable efforts to incorporate promptly in a Prospectus supplement or post-effective amendment to a Shelf Registration Statement such information as a Holder of New Notes to be sold pursuant to any Shelf Registration Statement may reasonably provide from time to time to the Company in writing for inclusion in a Prospectus or any Shelf Registration Statement concerning such Holder and the distribution of such Holder’s New Notes and shall make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after receipt of notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that notwithstanding anything else in this Agreement to the contrary, the Company shall not be obligated to make such updates more than once per month.
(n) If a Registered Exchange Offer is to be consummated, upon delivery of the New Notes by Holders to the Company (or to such other person as directed by the Company) in exchange for the Exchange Notes, the Company shall mark, or cause to be marked, on the New Notes so exchanged that such New Notes are being cancelled in exchange for the Exchange Notes. In no event shall the New Notes be marked as paid or otherwise satisfied.
5. Registration Expenses. The Company shall bear all expenses incurred in connection with the performance of its obligations under Section 2, Section 3 and Section 4 hereof and, in the case of any Exchange Offer Registration Statement, will reimburse the Dealer Managers for the reasonable fees and disbursements of Cleary Gottlieb Steen & Hamilton LLP, acting as counsel to the Dealer Managers in connection therewith. The Company shall not be responsible for reimbursement of any fees and disbursements of Cleary Gottlieb Steen & Hamilton LLP, acting as counsel to the Dealer Managers, in connection with a Shelf Registration Statement in an aggregate amount in excess of $15,000. Anything contained herein to the contrary notwithstanding, the Company shall not have any obligation whatsoever in respect of any underwriters’ discounts or commissions, brokerage commissions, dealers’ selling concessions, transfer taxes or, except as otherwise expressly set forth herein, any other selling expenses incurred in connection with the underwriting, offering or sale of New Notes or Exchange Notes by or on behalf of any person.
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6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of New Notes covered by any Shelf Registration Statement, each Exchanging Dealer with respect to any Prospectus delivery as contemplated in Section 4(h) hereof and each person who controls any such Holder or Exchanging Dealer within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any amendment thereof, any preliminary Prospectus or Prospectus or any amendment or supplement thereto, any “issuer free writing prospectus” as defined in Rule 433(h) under the Act (an “Issuer FWP”) or any Company information that the Company is required to file pursuant to Rule 433(d) under the Act, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in light of the circumstances under which they were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any such Holder or Exchanging Dealer furnished to the Company in writing by such Holder or Exchanging Dealer expressly for use therein.
(b) Each Holder of New Notes covered by a Shelf Registration Statement and each Exchanging Dealer with respect to any Prospectus delivery as contemplated in Section 4(h) hereof agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Shelf Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any amendment thereof, any preliminary Prospectus or Prospectus or any amendment or supplement thereto, any Issuer FWP or any Company information that the Company is required to file pursuant to Rule 433(d) under the Act, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in light of the circumstances under which they were made) not misleading, but only with reference to information relating to such Holder or Exchanging Dealer furnished to the Company in writing by such Holder or Exchanging Dealer expressly for use in any Registration Statement or any amendment thereof, any preliminary Prospectus or Prospectus or any amendment or supplement thereto, any Issuer FWP or any Company information that the Company is required to
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file pursuant to Rule 433(d) under the Act; provided however that no such Holder or Exchanging Dealer shall be liable for any losses hereunder in excess of the amount of net proceeds received by such Holder or Exchanging Dealer from the sale of New Notes or Exchange Notes pursuant to such Registration Statement.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party shall be entitled to participate in such proceeding and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and, except as provided in the following sentence, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (iii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party or (iv) the indemnified party shall have reasonably concluded there may be legal defenses available to it that are different from or additional to those available to the indemnifying party. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Holders or Exchanging Dealers and such control persons and affiliates of any Holders or Exchanging Dealers, such firm shall be designated in writing by a majority of such Holders and Exchanging Dealers. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such
15
settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the exchange of New Notes, pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by clause 6(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 6(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Holders or Exchanging Dealers on the other shall be deemed to be in the same respective proportion as is appropriate to reflect the relative benefit received by the Company from the offering of the New Notes, on the one hand, and by the Holders or Exchanging Dealers from receiving the New Notes registered under the Act, on the other hand, or if the allocation provided by the foregoing clause is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Company on the one hand and the Holders or Exchanging Dealers on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Holder or Exchanging Dealer and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders and Exchanging Dealer respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective net proceeds received by such Holder or Exchanging Dealer for the sale of the New Notes pursuant to a Registration Statement.
16
(e) The Company and the Holders and Exchanging Dealers agree that it would not be just or equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Holders and Exchanging Dealers were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 6(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 6(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, no Holder or Exchanging Dealers shall be required to contribute any amount in excess of the amount by which the net proceeds received by such Holder or Exchanging Dealer for the sale of the New Notes pursuant to a Registration Statement exceeds the amount of any damages that such Holder or Exchanging Dealer has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or Exchanging Dealer, any person controlling any Holder or Exchanging Dealer or any affiliate of any Holder or Exchanging Dealer, or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the New Notes.
7. Rule 144 and 144A. The Company shall, upon request of any Holder of Transfer-Restricted Securities, make available such information as is required so long as necessary to permit sales of such Holder’s securities pursuant to Rule 144A. Upon the written request of any Holder of Transfer-Restricted Securities, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its securities pursuant to the Exchange Act, or file reports thereunder, except as may be required by law.
8. No Inconsistent Agreements. The Company has not, as of the date hereof, entered into, nor shall it on or after the date hereof, enter into, any agreement with respect to any of its securities that is inconsistent with the rights granted to the Holders herein or that otherwise conflicts with the provisions hereof.
9. Timing of Obligations. If any of the Company’s obligations pursuant to Section 2 or Section 3 hereof would come due on a day that is not a Business Day, then such obligation shall be due on the next succeeding Business Day.
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10. Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, in any case as to the New Notes or the Exchange Notes, unless the Company has obtained the written consent of Holders of a majority in aggregate principal amount of the New Notes and the Exchange Notes that constitute Transfer-Restricted Securities, taken as a single class. In addition, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders whose Transfer-Restricted Securities or Exchange Notes are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other Holders may be given by Holders of a majority in aggregate principal amount of such Transfer-Restricted Securities or Exchange Securities, as applicable, being sold by such Holders pursuant to such Registration Statement.
11. Notices. Except as otherwise provided in this Agreement, all notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such Holder to the Company in accordance with the provisions of this Section 11, which address initially is, with respect to each Holder, the address of such Holder maintained by the Registrar under the Indenture;
(b) if to you, initially at the address set forth in the Dealer Manager Agreement; and
(c) if to the Company, initially at the Company’s address set forth in the Dealer Manager Agreement.
All such notices and communications shall be deemed to have been duly given when received.
So long as the New Notes are in global form registered in the name of DTC, Holders will be deemed to have received any notices referred to hereunder upon receipt of such notice by DTC for distribution to its participants. Each party hereto by notice to the other parties may designate additional or different addresses of such party for subsequent notices or communications.
12. Successors. This Agreement shall be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without need for an express assignment, subsequent Holders. If any transferee of any Holder shall acquire New Notes or Exchange Notes in any manner, whether by operation of law or otherwise, such Holder shall be deemed to have agreed to be bound by and subject to all the terms of this Agreement, and by taking and holding such New Notes or Exchange Notes such transferee shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement.
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13. Electronic Delivery and Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Delivery of this Agreement by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purpose
14. Headings. The headings used herein are for convenience only and shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflict of laws to the extent the same are not mandatorily applicable by statute and would permit or require the application of the laws of another jurisdiction.
16. Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.
17. Termination. This Agreement and the obligations of the parties hereunder shall terminate upon the expiration of the Shelf Registration Period, except for any liabilities or obligations under Section 5 and Section 6 hereof, each of which shall remain in effect in accordance with its terms.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Dealer Managers.
| Very truly yours, | ||
| CITIZENS FINANCIAL GROUP, INC. | ||
| By: | /s/ David C. Lindenauer | |
| Name: | David C. Lindenauer | |
| Title: | Executive Vice President and Treasurer | |
[Signature Page to Registration Rights Agreement]
| CREDIT SUISSE SECURITIES (USA) LLC | ||
| By: | /s/ Brian Carlin | |
| Name: | Brian Carlin | |
| Title: | Director | |
[Signature Page to Registration Rights Agreement]
| CITIZENS CAPITAL MARKETS, INC. | ||
| By: | /s/ Michele Goodenough | |
| Name: | Michele Goodenough | |
| Title: | Director | |
[Signature Page to Registration Rights Agreement]
ANNEX A
Each Broker-Dealer that receives Exchange Notes for its own account pursuant to the Registered Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. [The Letter of Transmittal states that by][By] so acknowledging and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a Broker-Dealer in connection with resales of Exchange Notes received in exchange for New Notes where such New Notes were acquired by such Broker-Dealer as a result of market-making activities or other trading activities. The Company has agreed that, starting on the date the Exchange Offer Registration Statement is declared effective and ending on the close of business 90 days after such date, it will make this Prospectus available to any Broker-Dealer for use in connection with any such resale. See “Plan of Distribution.”
A-1
ANNEX B
Each Broker-Dealer that receives Exchange Notes for its own account in exchange for New Notes, where such New Notes were acquired by such Broker-Dealer as a result of market- making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. See “Plan of Distribution.”
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Notes for its own account pursuant to the Registered Exchange Offer must acknowledge that it will deliver a prospectus (the “Prospectus”) in connection with any resale of such Exchange Notes. This Prospectus, as it may be amended or supplemented from time to time, may be used by a Broker-Dealer in connection with resales of Exchange Notes received in exchange for New Notes where such New Notes were acquired as a result of market-making activities or other trading activities. The Company has agreed that, starting on the date the Exchange Offer Registration Statement is declared effective and ending on the close of business 90 days after such date, they will make this Prospectus, as amended or supplemented, available to any Broker-Dealer for use in connection with any such resale. In addition, until _________, 20__, all dealers effecting transactions in the Exchange Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange Notes by Broker- Dealers. Exchange Notes received by Broker-Dealers for their own account pursuant to the Registered Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such Broker-Dealer or the purchasers of any such Exchange Notes. Any Broker-Dealer that resells Exchange Notes that were received by it for its own account pursuant to the Registered Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Notes may be deemed to be an “underwriter” within the meaning of the Act and any profit of any such resale of Exchange Notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Act. [The Letter of Transmittal states that by][By] acknowledging that it will deliver and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Act.
For a period of 90 days after the date the Exchange Offer Registration Statement is declared effective, the Company shall promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any Broker-Dealer that requests such documents [in the Letter of Transmittal]. The Company has agreed to pay all expenses incident to the Registered Exchange Offer other than commissions or concessions of any brokers or dealers and will indemnify the holders of the New Notes (including any Broker-Dealers) against certain liabilities, including liabilities under the Act.
[If applicable, add information required by Items 507 and 508 of Regulation S-K.]
C-1
ANNEX D
Rider A
| ☐ | CHECK HERE IF YOU ARE A BROKER-DEALER WHO HOLDS NEW NOTES ACQUIRED AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO FOR USE IN CONNECTION WITH RESALES OF EXCHANGE NOTES RECEIVED IN EXCHANGE FOR SUCH NEW NOTES. |
| Name: | ||||
| Address: | ||||
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the Exchange Notes in the ordinary course of its business, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and it has no arrangements or understandings with any person to participate in a distribution of the Exchange Notes. If the undersigned is a Broker- Dealer that will receive Exchange Notes for its own account in exchange for New Notes, it represents that the New Notes to be exchanged for Exchange Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Act.
D-1
Exhibit 99.1
| September 30, 2020 | Media: Peter Lucht - 781.655.2289 | |
| Investors: Kristin Silberberg - 203.900.6854 | ||
Citizens Financial Group Announces Final Results of its Private Exchange Offers for Five Series
of Subordinated Notes and Related Tender Offers
Providence, R.I. – Citizens Financial Group, Inc. (“Citizens”) (NYSE: CFG) today announced final results of its two previously announced related transactions to repurchase five series of its outstanding subordinated notes.
Exchange Offers
The first transaction consisted of five concurrent, but separate, private offers to exchange (the “Exchange Offers”) any and all of the outstanding series of subordinated notes described in the table below (collectively, the “Old Notes”) for a combination of newly issued Subordinated Notes due 2032 of Citizens (the “New Notes”) and an additional cash payment, in each case, on the terms and subject to the conditions set forth in the Offering Memorandum dated September 21, 2020 (the “Offering Memorandum” and, together with the accompanying eligibility certification and exchange offer notice of guaranteed delivery, the “Exchange Offer Documents”).
The Exchange Offers expired at 5:00 p.m. (Eastern time) on September 25, 2020, and were settled today, September 30, 2020.
On the terms and subject to the conditions set forth in the Offering Memorandum, the table below provides the aggregate principal amount of each series of Old Notes validly tendered and not validly withdrawn (including pursuant to guaranteed delivery procedures), and accepted by Citizens, in connection with the Exchange Offers.
| CUSIP Number |
Title of Security |
Principal Amount Outstanding |
Principal Amount Validly Tendered and Accepted |
|||||||
| 75524RAA7 / U7535RAA4 |
4.150% Subordinated Notes due 2022 |
$ | 350,000,000 | $ | 168,073,000 | |||||
| 174610AL9 |
3.750% Subordinated Notes due 2024 |
$ | 250,000,000 | $ | 91,371,000 | |||||
| 174610AC9 |
4.023% Subordinated Notes due 2024 |
$ | 42,000,000 | $ | 16,800,000 | |||||
| 174610AJ4 |
4.350% Subordinated Notes due 2025 |
$ | 250,000,000 | $ | 54,909,000 | |||||
| 174610AK1 |
4.300% Subordinated Notes due 2025 |
$ | 750,000,000 | $ | 289,402,000 | |||||
Upon the terms and subject to the conditions set forth in the Exchange Offer Documents, Citizens issued $620,555,000 aggregate principal amount of New Notes as part of the Total Exchange Price (as defined in the Offering Memorandum) for the Old Notes accepted in the Exchange Offers. Citizens did not receive any cash proceeds from the Exchange Offers.
The New Notes have not been registered under the Securities Act or any state securities laws. Therefore, the New Notes may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and any applicable state securities laws. Citizens has entered into a registration rights agreement with respect to the New Notes.
Only holders who had duly completed and returned an eligibility certification certifying that they were either (1) “qualified institutional buyers” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) (“QIBs”) or (2) non-“U.S. persons” (as defined in Rule 902 under the Securities Act) that (a) are located outside of the United States, (b) are not acquiring New Notes for the account or benefit of a U.S. Person, and (c) are Non-U.S. Qualified Offerees (as defined in the Offering Memorandum) were authorized to receive the Offering Memorandum and to participate in the Exchange Offers (each, an “Exchange Offer Eligible Holder”).
Global Bondholder Services Corporation acted as the Information Agent and the Exchange Agent for the Exchange Offers. Questions or requests for assistance related to the Exchange Offers may be directed to Global Bondholder Services Corporation at (866) 470-3800 (toll free) or (212) 430-3774 (collect). You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offers.
Cash Offers
The second transaction consisted of five concurrent, but separate, offers to purchase for cash (the “Cash Offers”) any and all of each series of Old Notes, on the terms and subject to the conditions set forth in the Offer to Purchase dated September 21, 2020 (the “Offer to Purchase” and, together with the certifications instruction letter and the accompanying cash offer notice of guaranteed delivery, the “Cash Offer Documents”).
Holders who are either (a) QIBs or (b) located outside of the United States and (i) are not a “U.S. person” (as defined in Rule 902 under the Securities Act), (ii) are not acquiring New Notes for the account or benefit of a U.S. Person, and (iii) are Non-U.S. Qualified Offerees (as defined in the Offer to Purchase) were not eligible to participate in the Cash Offers. Only other holders of Old Notes (“Cash Offer Eligible Holders”) were eligible to participate in the Cash Offers. Holders of Old Notes participating in the Cash Offers were required to certify that they are Cash Offer Eligible Holders.
The Cash Offers expired at 5:00 p.m. (Eastern time) on September 25, 2020, and were settled today, September 30, 2020.
On the terms and subject to the conditions set forth in the Offer to Purchase, the tables below provides the aggregate principal amount of each series of Old Notes validly tendered and not validly withdrawn (including pursuant to guaranteed delivery procedures), and accepted by Citizens pursuant to the Cash Offers.
| CUSIP Number |
Title of Security |
Principal Amount Outstanding |
Principal Amount Validly Tendered and Accepted |
|||||||
| 75524RAA7 / U7535RAA4 | 4.150% Subordinated Notes due 2022 | $ | 350,000,000 | $ | — | |||||
| 174610AL9 |
3.750% Subordinated Notes due 2024 | $ | 250,000,000 | $ | — | |||||
| 174610AC9 |
4.023% Subordinated Notes due 2024 | $ | 42,000,000 | $ | — | |||||
| 174610AJ4 |
4.350% Subordinated Notes due 2025 | $ | 250,000,000 | $ | 1,075,000 | |||||
| 174610AK1 |
4.300% Subordinated Notes due 2025 | $ | 750,000,000 | $ | 10,436,000 | |||||
Global Bondholder Services Corporation also acted as the Information Agent and the Tender Agent for the Cash Offers. Questions or requests for assistance related to the Cash Offers may be directed to Global Bondholder Services Corporation at (866) 470-3800 (toll free) or (212) 430-3774 (collect). You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Cash Offers.
This press release is for informational purposes only and does not constitute an offer to purchase, or a solicitation of an offer to sell, any Old Notes, and does not constitute an offer to sell, or a solicitation of an offer to purchase, any New Notes. The Exchange Offers are being made solely pursuant to the Offering Memorandum and related documents and the Cash Offers are being made solely pursuant to the Offer to Purchase and related documents. The Exchange Offers and Cash Offers are not being made to holders of Old Notes in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. In any jurisdiction in which the securities laws or blue sky laws require the Exchange Offers and Cash Offers to be made by a licensed broker or dealer, the Exchange Offers and Cash Offers will be deemed to be made on behalf of Citizens by the dealer managers or one or more registered brokers or dealers that are licensed under the laws of such jurisdiction.
This communication is not a prospectus for the purposes of the Prospectus Regulation. The expression “Prospectus Regulation” means Regulation (EU) 2017/1129 (as amended) and includes any relevant implementing measure in any member state (“Member State”) of the European Economic Area (the “EEA”) which has implemented the Prospectus Regulation.
PROHIBITION OF OFFERS TO EEA AND UK RETAIL INVESTORS. The New Notes are not intended to be offered or otherwise made available to and should not be offered or otherwise made available to any retail investor in the EEA or in the United Kingdom (“UK”). For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (the “Prospectus Regulation”). Consequently, no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering the New Notes or otherwise making them available to retail investors in the EEA or in the UK has been prepared and therefore offering of the New Notes or otherwise making them available to any retail investor in the EEA or in the UK may be unlawful under the PRIIPs Regulation.
In the United Kingdom, this press release is being distributed only to, and is directed only at qualified investors within the meaning of Article 2(e) of the Prospectus Regulation who are (i) persons who have professional experience in matters relating to investments falling within Article 19 (5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended, the “Order”), and/ or (ii) high net worth companies (or persons to whom it may otherwise be lawfully communicated) falling within Article 49(2)(a) to (d) of the Order, which persons together we refer to in this press release as “relevant persons.” Accordingly, such documents and/or materials are not being distributed to, and must not be passed on to, the general public in the United Kingdom. This press release must not be acted on or relied on in the United Kingdom by persons who are not relevant persons. In the United Kingdom, any investment or investment activity to which this press release relates is only available to, and will be engaged in with, relevant persons only.
About Citizens Financial Group, Inc.
Citizens Financial Group, Inc. is one of the nation’s oldest and largest financial institutions, with $179.9 billion in assets as of June 30, 2020. Headquartered in Providence, Rhode Island, Citizens offers a broad range of retail and commercial banking products and services to individuals, small businesses, middle-market companies, large corporations and institutions. Citizens helps its customers reach their potential by listening to them and by understanding their needs in order to offer tailored advice, ideas and solutions. In Consumer Banking, Citizens provides an integrated experience that includes mobile and online banking, a 24/7 customer contact center and the convenience of approximately 2,700 ATMs and approximately 1,000 branches in 11 states in the New England, Mid-Atlantic and Midwest regions. Consumer Banking products and services include a full range of banking, lending, savings, wealth management and small business offerings. In Commercial Banking, Citizens offers a broad complement of financial products and solutions, including lending and leasing, deposit and treasury management services, foreign exchange, interest rate and commodity risk management solutions, as well as loan syndication, corporate finance, merger and acquisition, and debt and equity capital markets capabilities.
Forward-Looking Statements
This communication contains “forward-looking statements” — that is, statements related to future, not past, events. In this context, forward-looking statements often address our expected future business and financial performance and financial condition, and often contain words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,” “see,” “will,” “would,” or “target.” Forward-looking statements by their nature address matters that are, to different degrees, uncertain. Statements with respect to the Exchange Offers and Tender Offers are forward-looking statements, based on our current expectations for the transactions, and are subject to the risk that the transactions may not be completed in a timely manner or at all, and that the final terms of the transactions may differ, possibly materially, from those described in this press release due to future events. The forward-looking statements included in this press release are made only as of the date of this press release, and we undertake no obligation to update publicly these forward-looking statements to reflect new information, future events or otherwise.
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