sv3
As filed with the U.S. Securities and Exchange Commission on
April 15, 2009
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
TEXAS CAPITAL BANCSHARES,
INC.
(Exact Name of Registrant as
Specified in its Charter)
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Delaware
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75-2679109
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.
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2000 McKinney Avenue
Suite 700
Dallas, Texas 75201
(214) 932-6600
(Address, including zip code,
and telephone number, including area code, of Registrants
principal executive offices)
Peter B. Bartholow
Chief Financial Officer
Texas Capital Bancshares, Inc.
2000 McKinney Avenue
Suite 700
Dallas, Texas
(214) 932-6600
(Name, address, including zip
code, and telephone number, including area code, of agent for
service for Registrant)
with copies to:
Norman R. Miller, Esq.
Patton Boggs LLP
2001 Ross Avenue Street, Suite 3000
Dallas, TX 75201
(214) 758-6630
Approximate date of commencement of proposed sale to the
public: From time to time after this Registration
Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with the dividend or
interest reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment hereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large
accelerated
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Accelerated
filer þ
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Non-accelerated
filer o
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Smaller reporting
company o
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(Do not check if a smaller
reporting company)
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Aggregate
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Registration
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Securities to be Registered
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Registered(1)
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Offering Price(1)(2)
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Fee(2)
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Debt securities
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Preferred stock, $.01 par value
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Common stock, $.01 par value
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Warrants
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Units
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Total
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$150,000,000
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$150,000,000
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$8,370
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(1)
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Not specified as to each class of
securities to be registered pursuant to General
Instruction II.D. of
Form S-3.
Securities registered hereunder may be sold separately, together
or in units with other securities registered hereby. Subject to
Rule 462(b) under the Securities Act, in no event will the
aggregate initial offering price of the securities issued under
this Registration Statement exceed $150,000,000. Such amount
represents the principal amount of any debt securities (or issue
price, in the case of Debt Securities issued at an original
issue discount), and the issue price of any preferred stock,
common stock or warrants. This Registration Statement includes
such presently indeterminate number of securities registered
hereunder as may be issuable from time to time upon conversion
of, or in exchange for, or upon exercise of, convertible or
exchangeable securities as may be offered pursuant to the
prospectus filed with this Registration Statement. Separate
consideration may or may not be received for securities issuable
on exercise, conversion, or exchange of other securities or that
are issued in units.
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(2)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(o) of
the rules and regulations under the Securities Act, and
exclusive of accrued interest and dividends, if any.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the U.S. Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these
securities, and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION DATED
APRIL 15, 2009
PROSPECTUS
$150,000,000
TEXAS CAPITAL BANCSHARES,
INC.
Senior Debt
Securities
Subordinated Debt
Securities
Convertible Debt
Securities
Preferred Stock
Common Stock
Warrants
Units
Texas Capital Bancshares, Inc. may offer and sell, from time to
time, in one or more offerings, senior debt securities,
subordinated debt securities, convertible debt securities,
preferred stock, common stock, warrants or units. This
prospectus provides a general description of the securities we
may offer and the manner in which we will offer these
securities. Supplements to this prospectus will describe the
specific terms and manner of offering of the securities we
actually offer. The prospectus supplement may also add, update,
or change information contained in this prospectus. You should
read this prospectus and any prospectus supplement carefully
before you invest. This prospectus may not be used to sell
securities, unless it is accompanied by a prospectus supplement
that describes those securities.
We may offer these securities from time to time in amounts,
prices, and on other terms to be determined at the time of the
offering. We may sell these securities to or through
underwriters, to other purchasers or through agents. The
accompanying prospectus supplement will specify the names of any
underwriters or agents.
Our common stock is traded on the Nasdaq Global Select Market
under the symbol TCBI. You are urged to obtain
current market prices for our common stock.
Our principal executive offices are located at 2000 McKinney
Avenue, Suite 700, Dallas, Texas 75201 and our telephone
number is
(214) 932-6600.
Our Internet address is
http://www.texascapitalbank.com.
These securities are speculative and involve a high degree of
risk. You should carefully read this prospectus, any applicable
prospectus supplement, our periodic reports and other
information we file with the U.S. Securities and Exchange
Commission and any information under the heading Risk
Factors beginning on page 2 of this prospectus before
making a decision to purchase our securities.
Neither the U.S. Securities and Exchange Commission nor
any state securities commission has approved or disapproved of
these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
These securities are our unsecured obligations, are not
savings accounts, deposits or other obligations of any bank and
are not insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency.
The date of this prospectus
is ,
2009
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement we filed
with the Securities and Exchange Commission, or the SEC, using a
shelf registration process. Under this shelf
registration process, after the SEC declares our registration
statement effective, we may from time to time sell any
combination of the securities described in this prospectus in
one or more offerings up to a total dollar amount of
$150,000,000.
We may offer the following securities from time to time:
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senior debt securities
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subordinated debt securities
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convertible debt
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preferred stock
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common stock
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warrants
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units
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This prospectus provides you with a general description of each
of the securities we may offer. Each time we sell securities we
will provide a prospectus supplement containing specific
information about the terms of the securities being offered.
That prospectus supplement may include a discussion of any risk
factors or other special considerations that apply to those
securities. The prospectus supplement may also add, update, or
change the information in this prospectus. If there is any
inconsistency between the information in this prospectus and any
prospectus supplement, you should rely on the information in
that prospectus supplement. You should read both this prospectus
and any prospectus supplement together with additional
information described under the heading Where You Can Find
More Information.
The registration statement containing this prospectus, including
the exhibits to the registration statement, provides additional
information about us and the securities offered under this
prospectus. The registration statement, including the exhibits
and the documents incorporated herein by reference, can be read
on the SEC website or at the SEC offices mentioned under the
heading Where You Can Find More Information.
You should rely only on the information we incorporate by
reference or present in this prospectus or the relevant
prospectus supplement. We have not authorized anyone else,
including any underwriter or agent, to provide you with
different or additional information. We may only use this
prospectus to sell securities if it is accompanied by a
prospectus supplement which includes the specific terms of that
offering. We are only offering these securities in states where
the offer is permitted. You should not assume that the
information in this prospectus or the applicable prospectus
supplement is accurate as of any date other than the dates on
the front of those documents.
We may sell securities to underwriters who will sell the
securities to the public on terms fixed at the time of sale. In
addition, the securities may be sold by us directly or through
dealers or agents designated from time to time. If we, directly
or through agents, solicit offers to purchase the securities, we
reserve the sole right to accept and, together with our agents,
to reject, in whole or in part, any of those offers.
The prospectus supplement will contain the names of the
underwriters, dealers, or agents, if any, together with the
terms of the offering, the compensation of those underwriters,
dealers, or agents, and the net proceeds to us. Any
underwriters, dealers, or agents participating in the offering
may be deemed underwriters within the meaning of the
Securities Act of 1933, as amended.
In this prospectus, TCBI, we,
our, ours, and us refer to
Texas Capital Bancshares, Inc., which is a financial holding
company headquartered in Dallas, Texas, and its subsidiaries on
a consolidated basis, unless the context otherwise requires.
References to Texas Capital Bank mean Texas Capital
Bank, National Association, which is our principal banking
subsidiary.
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FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference
contain statements that are considered forward looking
statements within the meaning of United States securities
laws. In addition, TCBI and its management may make other
written or oral communications from time to time that contain
forward-looking statements. Forward-looking statements,
including statements about industry trends, managements
future expectations and other matters that do not relate
strictly to historical facts, are based on assumptions by
management, and are often identified by such forward-looking
terminology as expect, look,
believe, anticipate,
estimate, seek, may,
will, trend, target, and
goal or similar statements or variations of such
terms. Forward-looking statements may include, among other
things, statements about TCBIs confidence in its
strategies and its expectations about financial performance,
market growth, market and regulatory trends and developments,
acquisitions and divestitures, new technologies, services and
opportunities and earnings.
Forward-looking statements are subject to various risks and
uncertainties, which change over time, are based on
managements expectations and assumptions at the time the
statements are made, and are not guarantees of future results.
Managements expectations and assumptions, and the
continued validity of the forward-looking statements, are
subject to change due to a broad range of factors affecting the
national and global economies, the equity, debt, currency and
other financial markets, as well as factors specific to TCBI and
its subsidiaries, including Texas Capital Bank.
Actual outcomes and results may differ materially from what is
expressed in our forward-looking statements and from our
historical financial results due to the factors discussed
elsewhere in this prospectus or disclosed in our other SEC
filings. Forward-looking statements included herein should not
be relied upon as representing our expectations or beliefs as of
any date subsequent to the date of this prospectus. TCBI
undertakes no obligation to revise the forward-looking
statements contained in this prospectus to reflect events after
the date of this prospectus. The factors discussed herein are
not intended to be a complete summary of all risks and
uncertainties that may affect our businesses. Though we strive
to monitor and mitigate risk, we cannot anticipate all potential
economic, operational and financial developments that may
adversely impact our operations and our financial results.
Forward-looking statements should not be viewed as predictions,
and should not be the primary basis upon which investors
evaluate TCBI. Any investor in TCBI should consider all risks
and uncertainties disclosed in our SEC filings described below
under the heading Where You Can Find More
Information, all of which are accessible on the SECs
website at
http://www.sec.gov.
ABOUT
TEXAS CAPITAL BANCSHARES, INC.
Texas Capital Bancshares, Inc., a financial holding company, is
the parent of Texas Capital Bank, National Association, a
Texas-based bank headquartered in Dallas, with banking offices
in Dallas, Houston, Fort Worth, Austin and
San Antonio, the states five largest metropolitan
areas. TCBI offers a variety of banking products and services to
our customers. We have focused on organic growth of Texas
Capital Bank and on quality loan and deposit relationships.
RISK
FACTORS
An investment in our securities involves significant risks. You
should carefully consider the risks and uncertainties and the
risk factors set forth in the documents and reports filed with
the SEC that are incorporated by reference into this prospectus,
as well as any risks described in any applicable prospectus
supplement, as the same may be updated from time to time by our
future filings with the SEC under the Securities Exchange Act of
1934, as amended, before you make an investment decision
regarding the securities. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may
also affect our business operations. Statements in or portions
of a future document incorporated by reference in this
prospectus, including without limitation those relating to risk
factors, may update and supersede statements in and portions of
this prospectus or such incorporated documents.
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USE OF
PROCEEDS
Unless otherwise specified in a prospectus supplement
accompanying this prospectus, we expect to use the net proceeds
from the sale of our securities for general corporate purposes.
We will specify the principal purposes for which the net
proceeds from the sale of our securities will be used in a
prospectus supplement at the time of sale. Until we use the net
proceeds from the sale of the securities for these purposes, we
may place the net proceeds in temporary investments or we may
hold the net proceeds in deposit accounts in our subsidiary bank.
RATIOS OF
EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratios of
earnings to fixed charges for all of the periods shown below.
For purposes of computing these ratios, earnings represent the
sum of income from continuing operations before taxes plus fixed
charges. Fixed charges represent total interest expense,
including and excluding interest on deposits. We paid no
dividends on preferred stock during the past five fiscal years,
and as a result our ratio of earnings to combined fixed charges
and preference dividends is identical to the ratio of earnings
to fixed charges for the periods set forth below. In January
2009, we completed the sale of 75,000 shares of our Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, or
Series A Perpetual Preferred Stock, and a warrant to
purchase 758,086 shares of our common stock to the
U.S. Department of the Treasury, or Treasury. We are
required to pay quarterly dividends on the shares of the
Series A Perpetual Preferred Stock. The first quarterly
dividend on the shares of Series A Perpetual Preferred
Stock in the amount of $302,083 was paid on February 15,
2009.
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Year Ended December 31,
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2008
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2007
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2006
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2005
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2004
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Ratio of earnings to fixed charges:
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Including interest on deposits
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1.38
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1.32
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1.36
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1.61
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1.81
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Excluding interest on deposits
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2.45
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2.60
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3.03
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3.44
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3.18
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THE
SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplement, summarize
all the material terms and provisions of the various types of
securities that we may offer. The particular terms of the
securities offered by any prospectus supplement will be
described in that prospectus supplement. If indicated in an
applicable prospectus supplement, the terms of the securities
may differ from the terms summarized below. An applicable
prospectus supplement will also contain information, where
applicable, about material U.S. federal income tax
considerations relating to the securities, and the securities
exchange, if any, on which the securities will be listed.
We may sell from time to time, in one or more offerings:
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senior debt securities
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subordinated debt securities
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convertible debt
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preferred stock
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common stock
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warrants
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units
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If we issue securities at a discount from their original stated
principal or liquidation amount, then, for purposes of
calculating the total dollar amount of all securities issued
under this prospectus, we will treat the initial offering price
of the securities as the total original principal or liquidation
amount of the securities.
This prospectus may not be used to sell securities, unless it is
accompanied by a prospectus supplement.
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DESCRIPTION
OF DEBT SECURITIES
This section describes the general terms and provisions of the
debt securities that we may issue. The applicable prospectus
supplement will describe the specific terms of the debt
securities offered through that prospectus supplement as well as
any general terms described in this section that will not apply
to those debt securities.
Any debt securities issued using this prospectus, or Debt
Securities, will be our direct unsecured general
obligations. The Debt Securities will be either our senior debt
securities, or Senior Debt Securities, or our
subordinated debt securities, or Subordinated Debt
Securities. The Senior Debt Securities and the
Subordinated Debt Securities will be issued under separate
Indentures between us and a trustee chosen by us and qualified
to act as a trustee under the Trust Indenture Act of 1939,
or the Trustee. Senior Debt Securities will be
issued under a Senior Indenture and Subordinated
Debt Securities will be issued under a Subordinated
Indenture. Together, the Senior Indenture and the
Subordinated Indenture are called Indentures.
Because we are a holding company, our cash flows and consequent
ability to service our obligations, including our debt
securities, are dependent on distributions and other payments of
earnings and other funds by our subsidiaries to us. The payment
of dividends and other distributions by our subsidiaries is
contingent upon their earnings and is subject to the
requirements of federal banking regulations and other
restrictions. In addition, the debt securities will be
structurally subordinated to all indebtedness and other
liabilities of our subsidiaries, since any right we have to
receive any assets of our subsidiaries will be effectively
subordinated to the claims of that subsidiarys creditors.
If we are recognized as a creditor of that subsidiary, our
claims would still be subordinate to any security interest in
the assets of that subsidiary and any indebtedness of that
subsidiary senior to us. Claims from creditors (other than us),
on subsidiaries may include long-term and medium-term debt and
substantial obligations related to deposit liabilities, federal
funds purchased, securities sold under repurchase agreements and
other short-term borrowings. Any capital loans that we make to
Texas Capital Bank would be subordinate in right of payment to
deposits and to other indebtedness of Texas Capital Bank.
We have summarized selected provisions of the Indentures below.
The summary is not complete. The form of each Indenture has been
filed with the SEC as an exhibit to the registration statement
of which this prospectus is a part, and you should read the
Indentures for provisions that may be important to you. Your
rights are defined by the terms of the Indentures, not the
summary provided in this prospectus or a prospectus supplement.
In the summary below we have included references to article or
section numbers of the applicable Indenture so that you can
easily locate these provisions. Whenever we refer in this
prospectus or in the prospectus supplement to particular
articles or sections or defined terms of the Indentures, those
articles or sections or defined terms are incorporated by
reference herein or therein, as applicable. Capitalized terms
used in the summary have the meanings specified in the
Indentures.
General
The Indentures provide that Debt Securities in separate series
may be issued thereunder from time to time without limitation as
to aggregate principal amount. We may specify a maximum
aggregate principal amount for the Debt Securities of any series
(Section 2.05). We will determine the terms and conditions
of the Debt Securities, including the maturity, principal and
interest, but those terms must be consistent with the Indenture.
The Senior Debt Securities will rank equally with all of our
other senior unsecured and unsubordinated debt (Senior
Debt). The Subordinated Debt Securities will be
subordinated in right of payment to the prior payment in full of
all of our Senior Debt as described under
Subordination of Subordinated Debt
Securities and in the prospectus supplement applicable to
any Subordinated Debt Securities.
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The applicable prospectus supplement will set forth the price or
prices at which the Debt Securities to be offered will be issued
and will describe the following terms of such Debt Securities:
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the title of the Debt Securities;
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whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities and, if Subordinated Debt
Securities, the related subordination terms;
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whether the Debt Securities will be issued as registered
securities, bearer securities or a combination of both;
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any limit on the aggregate principal amount of the Debt
Securities;
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the dates on which the principal of the Debt Securities will
mature;
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the interest rate that the Debt Securities will bear and the
interest payment dates for the Debt Securities or the method to
determine each;
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the place or places where payments on the Debt Securities will
be payable;
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whether the Debt Securities will be issued in the form of one or
more global securities and whether such global securities will
be issued in a temporary global form or permanent global form;
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any terms upon which the Debt Securities may be redeemed, in
whole or in part, at our option;
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any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities;
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the portion of the principal amount, if less than all, of the
Debt Securities that will be payable upon declaration of
acceleration of the Maturity of the Debt Securities;
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whether the Debt Securities are defeasible;
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any addition to or change in the Events of Default or rights of
holders upon an Event of Default;
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whether the Debt Securities will be issued pursuant to a
medium-term note program;
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whether the Debt Securities are convertible into our common
stock, preferred stock or any of our other securities and, if
so, the terms and conditions upon which conversion will be
effected, including the initial conversion price or conversion
rate and any adjustments thereto and the conversion period;
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any addition to or change in the covenants in the Indenture
applicable to the Debt Securities; and
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any other terms of the Debt Securities not prohibited by the
Indenture (Section 2.05).
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The Indentures do not limit the amount of Debt Securities that
may be issued. Each Indenture allows Debt Securities to be
issued up to the principal amount that may be authorized by us
and may be in any currency or currency unit designated by us.
Debt Securities, including Original Issue Discount Securities
bearing no interest or bearing interest which at the time of
issuance is below market rate, may be sold at a substantial
discount below their principal amount. Special United States
federal income tax considerations applicable to Debt Securities
sold at an original issue discount may be described in the
applicable prospectus supplement. In addition, special United
States federal income tax or other considerations applicable to
any Debt Securities that are denominated in a currency or
currency unit other than United States dollars may be described
in the applicable prospectus supplement.
Senior
Debt Securities
The Senior Debt Securities will be our unsecured senior
obligations and will rank equally with all other senior
unsecured and unsubordinated debt. The Senior Debt Securities
will, however, be subordinated in right of payment to all our
secured indebtedness to the extent of the value of the assets
securing such indebtedness whether existing at the date of the
Senior Indenture or subsequently incurred. Except as provided in
the
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applicable Senior Indenture or specified in any authorizing
resolution or supplemental indenture relating to a series of
Senior Debt Securities to be issued, the Senior Indenture will
not limit the amount of additional indebtedness that may rank
equally with the Senior Debt Securities or the amount of
indebtedness, secured or otherwise, that may be incurred or
preferred stock that may be issued by any of our subsidiaries.
Subordination
of Subordinated Debt Securities
The indebtedness evidenced by the Subordinated Debt Securities
will, to the extent set forth in the Subordinated Indenture with
respect to each series of Subordinated Debt Securities, be
subordinate in right of payment to the prior payment in full of
all of our secured indebtedness and Senior Debt, including the
Senior Debt Securities, whether existing at the date of the
Senior Indenture or subsequently incurred (Article XIII of
the Subordinated Indenture). The prospectus supplement relating
to any Subordinated Debt Securities will summarize the
subordination provisions of the Subordinated Indenture
applicable to that series including:
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the applicability and effect of such provisions upon any payment
or distribution respecting that series following any
liquidation, dissolution or other
winding-up,
or any assignment for the benefit of creditors or other
marshaling of assets or any bankruptcy, insolvency or similar
proceedings;
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the applicability and effect of such provisions in the event of
specified defaults with respect to any Senior Debt, including
the circumstances under which and the periods in which we will
be prohibited from making payments on the Subordinated Debt
Securities; and
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the definition of Senior Debt applicable to the Subordinated
Debt Securities of that series and, if the series is issued on a
senior subordinated basis, the definition of Subordinated Debt
applicable to that series.
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The prospectus supplement will also describe as of a recent date
the approximate amount of Senior Debt to which the Subordinated
Debt Securities of that series will be subordinated.
The failure to make any payment on any of the Subordinated Debt
Securities by reason of the subordination provisions of the
Subordinated Indenture described in the prospectus supplement
will not be construed as preventing the occurrence of an Event
of Default with respect to the Subordinated Debt Securities
arising from any such failure to make payment.
The subordination provisions described above will not be
applicable to payments in respect of the Subordinated Debt
Securities from a defeasance trust established in connection
with any legal defeasance or covenant defeasance of the
Subordinated Debt Securities as described under
Legal Defeasance and Covenant Defeasance.
Subordinated
Debt Securities Intended to Qualify as Tier 2
Capital
If stated in the applicable prospectus supplement, the
Subordinated Debt Securities covered by that prospectus
supplement will be intended to qualify as Tier 2 Capital
under the guidelines established by the Federal Reserve Board
for bank holding companies. The guidelines set forth specific
criteria for Subordinated Debt Securities to qualify as
Tier 2 Capital. Among other things that Subordinated Debt
Securities must:
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be unsecured;
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have a minimum average maturity of five years;
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be subordinated in right of payment;
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not contain provisions permitting the holders of the debt to
accelerate payment of principal prior to maturity except in the
event of bankruptcy of the issuer; and
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not contain provisions that would adversely affect liquidity or
unduly restrict managements flexibility to operate the
organization, particularly in times of financial difficulty,
such as limitations on additional secured or senior borrowings,
sales or dispositions of assets or changes in control.
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6
Conversion
Rights
The Debt Securities may be converted into other securities of
our company, if at all, according to the terms and conditions of
an applicable prospectus supplement. Such terms will include the
conversion price, the conversion period, whether conversion will
be at the option of the holders of such series of Debt
Securities or at the option of our company, the events requiring
an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such series of Debt
Securities.
Denomination,
Exchange and Transfer
The Debt Securities of each series will be issuable, unless
otherwise specified in the applicable prospectus supplement,
only in denominations of $1,000 and integral multiples thereof
(Section 2.08).
Registered securities of any series that are not Global
Securities will be exchangeable for other registered securities
of the same series and of like aggregate principal amount and
tenor in different authorized denominations. In addition, if
debt securities of any series are issuable as both registered
securities and bearer securities, the holder may choose, upon
written request, and subject to the terms of the applicable
indenture, to exchange bearer securities and the appropriate
related coupons of that series into registered securities of the
same series of any authorized denominations and of like
aggregate principal amount and tenor. Bearer securities with
attached coupons surrendered in exchange for registered
securities between a regular record date or a special record
date and the relevant date for interest payment shall be
surrendered without the coupon relating to the interest payment
date. Interest will not be payable with respect to the
registered security issued in exchange for that bearer security.
That interest will be payable only to the holder of the coupon
when due in accordance with the terms of the indenture. Bearer
securities will not be issued in exchange for registered
securities.
You may present registered securities for registration of
transfer, together with a duly executed form of transfer, at the
office of the security registrar or at the office of any
transfer agent designated by us for that purpose with respect to
any series of Debt Securities and referred to in the applicable
prospectus supplement. This may be done without service charge
but upon payment of any taxes and other governmental charges as
described in the applicable indenture. The security registrar or
the transfer agent will effect the transfer or exchange upon
being satisfied with the documents of title and identity of the
person making the request. We will appoint the Trustee as
security registrar for each Indenture. If a prospectus
supplement refers to any transfer agents initially designated by
us with respect to any series of debt securities in addition to
the security registrar, we may at any time rescind the
designation of any of those transfer agents or approve a change
in the location through which any of those transfer agents acts.
If, however, debt securities of a series are issuable solely as
registered securities, we will be required to maintain a
transfer agent in each place of payment for that series, and if
debt securities of a series are issuable as bearer securities,
we will be required to maintain a transfer agent in a place of
payment for that series located outside of the United States in
addition to the security registrar. We may at any time designate
additional transfer agents with respect to any series of debt
securities. The Debt Security Registrar and any other transfer
agent initially designated by us for any Debt Securities will be
named in the applicable prospectus supplement
(Section 2.06). We may at any time designate additional
transfer agents or rescind the designation of any transfer agent
or approve a change in the office through which any transfer
agent acts, except that we will be required to maintain a
transfer agent in each Place of Payment for the Debt Securities
of each series (Section 4.02).
If the Debt Securities of any series (or of any series and
specified tenor) are to be redeemed in part, we will not be
required to (1) issue, register the transfer of or exchange
any Debt Security of that series (or of that series and
specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of
mailing of a notice of redemption of any such Debt Security that
may be selected for redemption and ending at the close of
business on the day of such mailing or (2) register the
transfer of or exchange any Debt Security so selected for
redemption, in whole or in part, except the unredeemed portion
of any such Debt Security being redeemed in part
(Section 2.09).
7
Global
Securities
Some or all of the Debt Securities of any series may be
represented, in whole or in part, by one or more Global
Securities that will have an aggregate principal amount equal to
that of the Debt Securities they represent. Each Global Security
will be registered in the name of a Depositary or its nominee
identified in the applicable prospectus supplement, will be
deposited with such Depositary or nominee or its custodian and
will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such
other matters as may be provided for pursuant to the applicable
Indenture. Global Securities may be issued in either registered
or bearer form and in either temporary or permanent form.
Notwithstanding any provision of the Indentures or any Debt
Security described in this prospectus, no Global Security,
unless its terms so expressly permit, may be exchanged in whole
or in part for Debt Securities registered, and no transfer of a
Global Security in whole or in part may be registered, in the
name of any person other than the Depositary for such Global
Security or any nominee of such Depositary unless:
(1) the Depositary has notified us that it is unwilling or
unable to continue as Depositary for such Global Security or has
ceased to be qualified to act as such as required by the
applicable Indenture, and in either case we fail to appoint a
successor Depositary within 90 days;
(2) an Event of Default with respect to the Debt Securities
represented by such Global Security has occurred and is
continuing and the Trustee has received a written request from
the Depositary to issue certificated Debt Securities; or
(3) other circumstances exist, in addition to or in lieu of
those described above, as may be described in the applicable
prospectus supplement.
All Debt Securities issued in exchange for a Global Security or
any portion thereof will be registered in such names as the
Depositary may direct (Section 2.17).
As long as the Depositary, or its nominee, is the registered
holder of a Global Security, the Depositary or such nominee, as
the case may be, will be considered the sole owner and Holder of
such Global Security and the Debt Securities that it represents
for all purposes under the Debt Securities and the applicable
Indenture (Section 2.17). Except in the limited
circumstances referred to above, owners of beneficial interests
in a Global Security will not be entitled to have such Global
Security or any Debt Securities that it represents registered in
their names, will not receive or be entitled to receive physical
delivery of certificated Debt Securities in exchange for those
interests and will not be considered to be the owners or Holders
of such Global Security or any Debt Securities that it
represents for any purpose under the Debt Securities or the
applicable Indenture. All payments on a Global Security will be
made to the Depositary or its nominee, as the case may be, as
the Holder of the security. The laws of some jurisdictions
require that some purchasers of Debt Securities take physical
delivery of such Debt Securities in definitive form. These laws
may impair the ability to transfer beneficial interests in a
Global Security.
Ownership of beneficial interests in a Global Security will be
limited to institutions that have accounts with the Depositary
or its nominee (participants) and to persons that
may hold beneficial interests through participants. In
connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of Debt
Securities represented by the Global Security to the accounts of
its participants. Ownership of beneficial interests in a Global
Security will be shown only on, and the transfer of those
ownership interests will be effected only through, records
maintained by the Depositary (with respect to participants
interests) or any such participant (with respect to interests of
persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial
interests in a Global Security may be subject to various
policies and procedures adopted by the Depositary from time to
time. None of us, any Trustee or any agent of ours will have any
responsibility or liability for any aspect of the
Depositarys or any participants records relating to,
or for payments made on account of, beneficial interests in a
Global Security, or for maintaining, supervising or reviewing
any records relating to such beneficial interests.
8
Payment
and Paying Agents
Unless otherwise indicated in the applicable prospectus
supplement, payment of interest on a Debt Security on any
Interest payment date will be made to the Person in whose name
such Debt Security (or one or more Predecessor Debt Securities)
is registered at the close of business on the regular record
date for such interest (Section 2.14).
Unless otherwise indicated in the applicable prospectus
supplement, principal of and any premium and interest on the
Debt Securities of a particular series will be payable at the
office of such Paying Agent or Paying Agents as we may designate
for such purpose from time to time, except that at our option
payment of any interest on Debt Securities in certificated form
may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable
prospectus supplement, the corporate trust office of the Trustee
under the Senior Indenture in The City of New York will be
designated as sole Paying Agent for payments with respect to
Senior Debt Securities of each series, and the corporate trust
office of the Trustee under the Subordinated Indenture in The
City of New York will be designated as the sole Paying Agent for
payment with respect to Subordinated Debt Securities of each
series. Any other Paying Agents initially designated by us for
the Debt Securities of a particular series will be named in the
applicable prospectus supplement. We may at any time designate
additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any
Paying Agent acts, except that we will be required to maintain a
Paying Agent in each Place of Payment for the Debt Securities of
a particular series (Section 4.02).
Subject to any applicable abandoned property law, all money paid
by us to a Paying Agent for the payment of the principal of or
any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium
or interest has become due and payable will be repaid to us, and
the Holder of such Debt Security thereafter may look only to us
for payment (Section 11.05).
Consolidation,
Merger and Sale of Assets
We may not consolidate with or merge into, or transfer, lease or
otherwise dispose of all or substantially all of our assets to,
any Person (a successor Person), and may not permit
any Person to consolidate with or merge into us, unless:
(1) the successor Person (if any) is a corporation and
validly existing under the laws of any domestic jurisdiction and
assumes our obligations on the Debt Securities and under the
Indentures;
(2) immediately before and after giving effect to the
transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing; and
(3) several other conditions, including any additional
conditions with respect to any particular Debt Securities
specified in the applicable prospectus supplement, are met
(Section 10.01).
Events of
Default
Unless otherwise specified in the prospectus supplement, each of
the following will constitute an Event of Default under the
applicable Indenture with respect to Debt Securities of any
series:
(1) failure to pay principal of or premium on any Debt
Security of that series when due, whether or not, in the case of
Subordinated Debt Securities, such payment is prohibited by the
subordination provisions of the Subordinated Indenture;
(2) failure to pay any interest on any Debt Securities of
that series when due, continued for 30 days, whether or
not, in the case of Subordinated Debt Securities, such payment
is prohibited by the subordination provisions of the
Subordinated Indenture;
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(3) failure to deposit any sinking fund payment, when due,
in respect of any Debt Security of that series, whether or not,
in the case of Subordinated Debt Securities, such deposit is
prohibited by the subordination provisions of the Subordinated
Indenture;
(4) failure to perform or comply with the provisions
described under Consolidation, Merger and Sale
of Assets;
(5) failure to perform any of our other covenants in such
Indenture (other than a covenant included in such Indenture
solely for the benefit of a series other than that series),
continued for 90 days after written notice has been given,
as provided in such Indenture;
(6) any judgment or decree for the payment of money in
excess of an amount to be determined at the time the series of
Debt Securities are created is entered against us or any
Restricted Subsidiary remains outstanding for a period of 60
consecutive days following entry of such judgment and is not
discharged, waived or stayed; and
(7) certain events of bankruptcy, insolvency or
reorganization affecting us or any Restricted Subsidiary.
(Section 6.01).
Except as may be summarized in a prospectus supplement and set
forth in a supplemental indenture or the board resolution
creating a series of Debt Securities, if an Event of Default
(other than an Event of Default with respect to TCBI. described
in clause (7) above) with respect to the Debt Securities of
any series at the time Outstanding occurs and is continuing,
either the applicable Trustee or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that
series by notice as provided in the Indenture may declare the
principal amount of the Debt Securities of that series (or, in
the case of any Debt Security that is an Original Issue Discount
Debt Security, such portion of the principal amount of such Debt
Security as may be specified in the terms of such Debt Security)
to be due and payable immediately. If an Event of Default with
respect to TCBI described in clause (7) above with respect
to the Debt Securities of any series at the time Outstanding
occurs, the principal amount of all the Debt Securities of that
series (or, in the case of any such Original Issue Discount
Security, such specified amount) will automatically, and without
any action by the applicable Trustee or any Holder, become
immediately due and payable. After any such acceleration, but
before a judgment or decree based on acceleration, the Holders
of a majority in principal amount of the Outstanding Debt
Securities of that series may, under certain circumstances,
rescind and annul such acceleration if all Events of Default,
other than the non-payment of accelerated principal (or other
specified amount), have been cured or waived as provided in the
applicable Indenture (Section 6.01). For information as to
waiver of defaults, see Modification and
Waiver below.
Subject to the provisions of the Indentures relating to the
duties of the Trustees in case an Event of Default has occurred
and is continuing, the Trustee will be under no obligation to
exercise any of its rights or powers under the applicable
Indenture at the request or direction of any of the Holders,
unless such Holders have offered to such Trustee reasonable
indemnity (Section 6.04). Subject to such provisions for
the indemnification of the Trustees, the Holders of a majority
in principal amount of the Outstanding Debt Securities of any
series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of that series
(Section 6.06).
No Holder of a Debt Security of any series will have any right
to institute any proceeding with respect to the applicable
Indenture, or for the appointment of a receiver or a trustee, or
for any other remedy thereunder, unless:
(1) such Holder has previously given to the Trustee under
the applicable Indenture written notice of a continuing Event of
Default with respect to the Debt Securities of that series;
(2) the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series have made written
request, and such Holder or Holders have offered reasonable
indemnity, to the Trustee to institute such proceeding as
trustee; and
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(3) the Trustee has failed to institute such proceeding,
and has not received from the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series a
direction inconsistent with such request, within 60 days
after such notice, request and offer (Section 6.04).
However, such limitations do not apply to a suit instituted by a
Holder of a Debt Security for the enforcement of payment of the
principal of or any premium or interest on such Debt Security on
or after the applicable due date specified in such Debt Security
or, if applicable, to convert such Debt Security
(Section 6.04).
We will be required to furnish to each Trustee annually a
statement by certain of our officers as to whether or not we, to
their knowledge, are in default in the performance or observance
of any of the terms, provisions and conditions of the applicable
Indenture and, if so, specifying all such known defaults
(Section 4.06).
Modification
and Waiver
Modifications and amendments of an Indenture may be made by us
and the applicable Trustee with the consent of the Holders of a
majority in principal amount of the Outstanding Debt Securities
of each series affected by such modification or amendment;
provided, however, that no such modification or amendment
may, without the consent of the Holder of each Outstanding Debt
Security affected thereby:
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change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security;
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reduce the principal amount of, or any premium or interest on,
any Debt Security;
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reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of
the Maturity thereof;
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change the place or currency of payment of principal of, or any
premium or interest on, any Debt Security;
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impair the right to institute suit for the enforcement of any
payment due on or any conversion right with respect to any Debt
Security;
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modify the subordination provisions in the case of Subordinated
Debt Securities, or modify any conversion provisions, in either
case in a manner adverse to the Holders of the Subordinated Debt
Securities;
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reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture;
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reduce the percentage in principal amount of Outstanding Debt
Securities of any series necessary for waiver of compliance with
certain provisions of the Indenture or for waiver of certain
defaults; or
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modify such provisions with respect to modification, amendment
or waiver (Section 9.02).
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The Holders of a majority in principal amount of the Outstanding
Debt Securities of any series may waive compliance by us with
certain restrictive provisions of the applicable Indenture
(Section 6.06). The Holders of a majority in principal
amount of the Outstanding Debt Securities of any series may
waive any past default under the applicable Indenture, except a
default in the payment of principal, premium or interest and
certain covenants and provisions of the Indenture which cannot
be amended without the consent of the Holder of each Outstanding
Debt Security of such series (Section 6.06).
11
Each of the Indentures provides that in determining whether the
Holders of the requisite principal amount of the Outstanding
Debt Securities have given or taken any direction, notice,
consent, waiver or other action under such Indenture as of any
date:
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the principal amount of an Original Issue Discount Security that
will be deemed to be Outstanding will be the amount of the
principal that would be due and payable as of such date upon
acceleration of maturity to such date;
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if, as of such date, the principal amount payable at the Stated
Maturity of a Debt Security is not determinable (for example,
because it is based on an index), the principal amount of such
Debt Security deemed to be Outstanding as of such date will be
an amount determined in the manner prescribed for such Debt
Security; and
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the principal amount of a Debt Security denominated in one or
more foreign currencies or currency units that will be deemed to
be Outstanding will be the United States-dollar equivalent,
determined as of such date in the manner prescribed for such
Debt Security, of the principal amount of such Debt Security
(or, in the case of a Debt Security described in the first two
bullet points above, of the amount described in such clause).
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Certain Debt Securities, including those owned by us or any of
our Affiliates, will not be deemed to be Outstanding
(Section 8.03).
Except in certain limited circumstances, we will be entitled to
set any day as a record date for the purpose of determining the
Holders of Outstanding Debt Securities of any series entitled to
give or take any direction, notice, consent, waiver or other
action under the applicable Indenture, in the manner and subject
to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date
for action by Holders. If a record date is set for any action to
be taken by Holders of a particular series, only persons who are
Holders of Outstanding Debt Securities of that series on the
record date may take such action.
Satisfaction
and Discharge
Each Indenture will be discharged and will cease to be of
further effect as to all outstanding Debt Securities of any
series issued thereunder, when:
(1) either:
(a) all outstanding Debt Securities of that series that
have been authenticated (except lost, stolen or destroyed Debt
Securities that have been replaced or paid and Debt Securities
for whose payment money has theretofore been deposited in trust
and thereafter repaid to us) have been delivered to the Trustee
for cancellation; or
(b) all outstanding Debt Securities of that series that
have not been delivered to the Trustee for cancellation have
become due and payable or will become due and payable at their
Stated Maturity within one year or are to be called for
redemption within one year under arrangements satisfactory to
the Trustee and in any case we have irrevocably deposited with
the Trustee as trust funds money in an amount sufficient,
without consideration of any reinvestment of interest, to pay
the entire indebtedness of such Debt Securities not delivered to
the Trustee for cancellation, for principal, premium, if any,
and accrued interest to the Stated Maturity or redemption date;
(2) we have paid or caused to be paid all other sums
payable by us under the Indenture with respect to the Debt
Securities of that series; and
(3) we have delivered an Officers Certificate and an
Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge of the Indenture with
respect to the Debt Securities of that series have been
satisfied (Article XI).
12
Legal
Defeasance and Covenant Defeasance
If and to the extent indicated in the applicable prospectus
supplement, we may elect, at our option at any time, to have the
provisions of Section 11.02, relating to defeasance and
discharge of indebtedness, which we call legal
defeasance, or relating to defeasance of certain
restrictive covenants applied to the Debt Securities of any
series, or to any specified part of a series, which we call
covenant defeasance.
Legal
Defeasance.
The Indentures provide that, upon our exercise of our option (if
any) to have Section 11.02 applied to any Debt Securities,
we will be discharged from all our obligations, and, if such
Debt Securities are Subordinated Debt Securities, the provisions
of the Subordinated Indenture relating to subordination will
cease to be effective, with respect to such Debt Securities
(except for certain obligations to convert, exchange or register
the transfer of Debt Securities, to replace stolen, lost or
mutilated Debt Securities, to maintain paying agencies and to
hold monies for payment in trust) upon the deposit in trust for
the benefit of the Holders of such Debt Securities of money or
United States Government Obligations, or both, which, through
the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest
on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the applicable Indenture and such
Debt Securities. Such defeasance or discharge may occur only if,
among other things:
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we have delivered to the applicable Trustee an Opinion of
Counsel to the effect that we have received from, or there has
been published by, the United States Internal Revenue Service a
ruling, or there has been a change in tax law, in either case to
the effect that Holders of such Debt Securities will not
recognize gain or loss for federal income tax purposes as a
result of such deposit and legal defeasance and will be subject
to federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit
and legal defeasance were not to occur;
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no Event of Default or event that with the passing of time or
the giving of notice, or both, shall constitute an Event of
Default shall have occurred and be continuing at the time of
such deposit or, with respect to any Event of Default described
in clause (7) under Events of
Default, at any time until 121 days after such
deposit;
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such deposit and legal defeasance will not result in a breach or
violation of, or constitute a default under, any agreement or
instrument to which we are a party or by which we are bound;
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in the case of Subordinated Debt Securities, at the time of such
deposit, no default in the payment of all or a portion of
principal of (or premium, if any) or interest on any of our
Senior Debt shall have occurred and be continuing, no event of
default shall have resulted in the acceleration of any of our
Senior Debt and no other event of default with respect to any of
our Senior Debt shall have occurred and be continuing permitting
after notice or the lapse of time, or both, the acceleration
thereof; and
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we have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit shall not cause the Trustee or the
trust so created to be subject to the Investment Company Act of
1940 (Section 11.03).
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Covenant
Defeasance.
The Indentures provide that, upon our exercise of our option (if
any) to have Section 11.02 applied to any Debt Securities,
we may omit to comply with certain restrictive covenants (but
not to conversion, if applicable), including those that may be
described in the applicable prospectus supplement, the
occurrence of certain Events of Default, which are described
above in clause (5) (with respect to such restrictive covenants)
and clauses (5) and (6) under Events
of Default and any that may be described in the applicable
prospectus supplement, will not be deemed to either be or result
in an Event of Default and, if such Debt Securities are
Subordinated Debt Securities, the provisions of the Subordinated
Indenture relating to subordination will cease to be effective,
in each case with respect to such Debt Securities. In order to
exercise such option, we must deposit, in trust for the benefit
of the Holders of such Debt Securities, money or United States
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Government Obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with
their terms, will provide money in an amount sufficient to pay
the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance
with the terms of the applicable Indenture and such Debt
Securities. Such covenant defeasance may occur only if we have
delivered to the applicable Trustee an Opinion of Counsel that
in effect says that Holders of such Debt Securities will not
recognize gain or loss for federal income tax purposes as a
result of such deposit and covenant defeasance and will be
subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance were not to occur, and the
requirements listed in the last four bullet points above are
satisfied. If we exercise this option with respect to any Debt
Securities and such Debt Securities were declared due and
payable because of the occurrence of any Event of Default, the
amount of money and United States Government Obligations so
deposited in trust would be sufficient to pay amounts due on
such Debt Securities at the time of their respective Stated
Maturities but may not be sufficient to pay amounts due on such
Debt Securities upon any acceleration resulting from such Event
of Default. In such case, we would remain liable for such
payments (Section 11.02).
Notices
Notices to Holders of Debt Securities will be given by mail to
the addresses of such Holders as they may appear in the Security
Register (Section 12.03).
Title
We, the Trustees and any of our agents may treat the Person in
whose name a Debt Security is registered as the absolute owner
of the Debt Security (whether or not such Debt Security may be
overdue) for the purpose of making payment and for all other
purposes (Section 8.03).
Governing
Law
The Indentures and the Debt Securities will be governed by, and
construed in accordance with, the law of the State of New York
without regard to conflicts of law principles
(Section 12.04).
DESCRIPTION
OF CAPITAL STOCK AND WARRANTS
The following is a brief description of our capital stock. This
summary does not purport to be complete in all respects. This
description is subject to and qualified in its entirety by
reference to our certificate of incorporation, as amended,
copies of which have been filed with the SEC and are also
available upon request from us.
General
Under our certificate of incorporation, as amended, we have
authority to issue up to 10 million shares of preferred
stock, par value $0.01 per share. Of such shares,
75,000 shares have been designated as Series A
Perpetual Preferred Stock, all of which shares were outstanding
as of April 14, 2009. No other shares of preferred stock
are issued and outstanding as of the date hereof. We have
100,000,000 shares of authorized common stock,
$0.01 par value per share, of which 31,014,158 shares
were outstanding as of April 14, 2009.
Preferred
Stock
If we offer to sell newly-issued preferred stock, our board of
directors is authorized, subject to the rights of the holders of
our Series A Perpetual Preferred Stock, to designate and issue
shares of preferred stock in one or more series without
stockholder approval. Subject to the rights of the holders of
our Series A Perpetual Preferred Stock, our board of directors
would have discretion to determine the rights, preferences,
privileges and restrictions, including voting rights, dividend
rights, conversion rights, redemption privileges and liquidation
preferences, of each series of preferred stock.
14
So long as any shares of our Series A Perpetual Preferred Stock
are outstanding, the vote or consent of the holders of at least
662/3%
of the outstanding shares of Series A Perpetual Preferred Stock,
voting as a separate class, is necessary for effecting or
validating any amendment or alteration of our certificate of
incorporation that authorizes or creates or increases the
authorized amount of, or any issuance of, any shares of capital
stock of TCBI (or any securities convertible into or
exchangeable or exercisable for such shares) that ranks senior
to our Series A Perpetual Preferred Stock with respect to the
payment of dividends or the distribution of assets on any
liquidation, dissolution or winding up of TCBI. The Series A
Perpetual Preferred Stock will rank at least equally with any
preferred stock designated as ranking on a parity with the
Series A Perpetual Preferred Stock with respect to the
payment of dividends and a liquidation preference upon our
liquidation, dissolution or winding up and will rank senior to
any preferred stock designated as ranking junior to the Series A
Perpetual Preferred Stock with respect to the payment of
dividends or a liquidation preference.
If we offer to sell newly-issued preferred stock, we will file
the terms of the preferred stock with the SEC, and the
prospectus supplement relating to that offering will include a
description of the specific terms of the offering, including the
following specific terms:
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the series, the number of shares offered and the liquidation
value of the preferred stock;
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the price at which the preferred stock will be issued;
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the dividend rate, the dates on which the dividends will be
payable and other terms relating to the payment of dividends on
the preferred stock;
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the liquidation preference of the preferred stock;
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the voting rights of the preferred stock;
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whether the preferred stock is redeemable or subject to a
sinking fund, and the terms of any such redemption or sinking
fund;
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whether the preferred stock is convertible or exchangeable for
any other securities, and the terms of any such
conversion; and
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any additional rights, preferences, qualifications, limitations
and restrictions of the preferred stock.
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It is not possible to state the actual effect of the issuance of
any shares of preferred stock upon the rights of holders of our
common stock until the board of directors determines the
specific rights of the holders of the preferred stock. However,
these effects might include:
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restricting dividends on the common stock;
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diluting the voting power of the common stock;
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impairing the liquidation rights of the common stock; and
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delaying or preventing a change in control of our company.
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Common
Stock
Each holder of our common stock is entitled to one vote for each
share held on all matters with respect to which the holders of
our common stock are entitled to vote. Our common stock has no
preemptive or conversion rights and is not subject to
redemption. Holders of our common stock are not entitled to
cumulative voting in the election of directors. In the event of
dissolution or liquidation, after payment of all creditors and
payment of liquidation preferences on preferred stock, the
holders of our common stock (subject to the prior rights of the
holders of any outstanding preferred stock) will be entitled to
receive pro rata any assets distributable to stockholders in
respect of the number of shares held by them. The holders of
shares of our common stock are entitled to such dividends as our
board of directors, in its discretion, may declare out of funds
legally available therefor, subject to certain limitations under
the Delaware General Corporation Law, or DGCL. We have not paid
dividends on our common stock to date, and we do not anticipate
paying dividends in the near future. However, the payment of
dividends on our common stock is subject to the prior rights of
the holders of any preferred stock,
15
including our Series A Perpetual Preferred Stock. In
addition, the securities purchase agreement that we entered into
with the Treasury in connection with the sale of the
Series A Perpetual Preferred Stock restricts our ability to
pay dividends, unless we obtain the consent of the Treasury.
Payment of dividends on both our common stock and any preferred
stock, will be dependent upon, among other things, our earnings
and financial condition, our cash flow requirements and the
prevailing economic and regulatory climate.
Anti-Takeover
Provisions.
Certain provisions included in our certificate of incorporation,
as amended, our amended and restated bylaws, as amended, as well
as certain provisions of the DGCL and federal law, may
discourage or prevent potential acquisitions of control of us.
These provisions are more fully set forth in our Registration
Statement on Form 10, as amended, which was filed with the
SEC on August 24, 2000, and is incorporated by reference
into this prospectus.
Restrictions
on Ownership.
The Bank Holding Company Act of 1956, the BHC Act,
generally would prohibit any company that is not engaged in
banking activities and activities that are permissible for a
bank holding company or a financial holding company from
acquiring control of TCBI. Control is generally
defined as ownership of 25% or more of the voting stock or other
exercise of a controlling influence. In addition, any existing
bank holding company would need the prior approval of the Board
of Governors of the Federal Reserve System, or the Federal
Reserve, before acquiring 5% or more of the voting stock of
TCBI. In addition, the Change in Bank Control Act of 1978, as
amended, prohibits a person or group of persons from acquiring
control of a bank holding company unless the Federal Reserve has
been notified and has not objected to the transaction. Under a
rebuttable presumption established by the Federal Reserve, the
acquisition of 10% or more of a class of voting stock of a bank
holding company with a class of securities registered under
Section 12 of the Exchange Act, such as TCBI, could
constitute acquisition of control of the bank holding company.
Listing.
Our common stock is listed on the Nasdaq Global Select Market.
Transfer
Agent and Registrar.
The transfer agent and registrar for our common stock is
Computershare Investor Services LLC.
Warrants
We may issue additional warrants for the purchase of common
stock. Warrants may be issued independently or together with
debt securities or common stock offered by any prospectus
supplement and may be attached to or separate from any such
offered securities. Series of warrants may be issued under a
separate warrant agreement entered into between us and a bank or
trust company, as warrant agent, all as will be set forth in the
prospectus supplement relating to the particular issue of
warrants. The warrant agent would act solely as our agent in
connection with the warrants and would not assume any obligation
or relationship of agency or trust for or with any holders of
warrants or beneficial owners of warrants.
The following summary of certain provisions of the warrants does
not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all provisions of the warrant
agreements.
Reference is made to the prospectus supplement relating to the
particular issue of warrants offered pursuant to such prospectus
supplement for the terms of and information relating to such
warrants, including, where applicable:
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the number of shares of common stock purchasable upon the
exercise of warrants to purchase common stock and the price at
which such number of shares of common stock may be purchased
upon such exercise;
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the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
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United States federal income tax consequences applicable to such
warrants;
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the amount of warrants outstanding as of the most recent
practicable date; and
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any other terms of such warrants.
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Warrants will be issued in registered form only. The exercise
price for warrants will be subject to adjustment in accordance
with the applicable prospectus supplement.
Each warrant will entitle the holder thereof to purchase such
number of shares of common stock at such exercise price as shall
be set forth in, or calculable from, the prospectus supplement
relating to the warrants, which exercise price may be subject to
adjustment upon the occurrence of certain events as set forth in
such prospectus supplement. After the close of business on the
expiration date, or such later date to which such expiration
date may be extended by us, unexercised warrants will become
void. The place or places where, and the manner in which,
warrants may be exercised shall be specified in the prospectus
supplement relating to such warrants.
Prior to the exercise of any warrants to purchase common stock,
holders of such warrants will not have any of the rights of
holders of common stock purchasable upon such exercise,
including the right to receive payments of dividends, if any, on
the common stock purchasable upon such exercise, or to exercise
any applicable right to vote.
DESCRIPTION
OF UNITS
This section describes the general terms and provisions of the
units. The prospectus supplement will describe the specific
terms of the units offered through that prospectus supplement
and any general terms outlined in this section that will not
apply to those units.
We may issue units comprised of two or more of the other
securities described in this prospectus in any combination. Each
unit will be issued so that the holder of the unit is also the
holder of each security included in the unit. Thus, the holder
of a unit will have the rights and obligations of a holder of
each included security. The unit agreement under which a unit is
issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any
time before a specified date.
PLAN OF
DISTRIBUTION
We may sell the securities offered by this prospectus to one or
more underwriters for public offering and sale by them or may
sell the securities to investors directly or through dealers or
agents, or through a combination of methods. Any underwriter,
dealer or agent involved in the offer and sale of the securities
will be named in the applicable prospectus supplement.
We may distribute our securities from time to time in one or
more transactions at: (1) a fixed price or prices, which
may be changed, (2) market prices prevailing at the time of
sale, (3) prices related to the prevailing market prices at
the time of sale, or (4) negotiated prices. We also may,
from time to time, authorize underwriters acting as our agents
to offer and sell the securities upon the terms and conditions
as set forth in the applicable prospectus supplement. In
connection with the sale of securities, underwriters may be
deemed to have received compensation from us in the form of
underwriting discounts or commissions and may also receive
commissions from purchasers of securities for whom they may act
as agent. Underwriters may sell securities to or through
dealers, and the dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters
and/or
commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by us to underwriters,
dealers or agents in connection with the offering of securities,
and any discounts, concessions or commissions allowed by
underwriters to participating
17
dealers, will be set forth in the applicable prospectus
supplement. Dealers and agents participating in the distribution
of the securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be
underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under
agreements entered into with us, to indemnification against
contribution toward civil liabilities, including liabilities
under the Securities Act.
To facilitate the offering of the securities, certain persons
participating in the offering may engage in transactions that
stabilize, maintain, or otherwise affect the price of the
securities. This may include over-allotments or short sales of
the securities, which involves the sale by persons participating
in the offering of more securities than we sold to them. In
these circumstances, the persons would cover the over-allotments
or short positions by making purchases in the open market or by
exercising their over-allotment option. In addition, these
persons may stabilize or maintain the price of the securities by
bidding for or purchasing securities in the open market or by
imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if
securities sold by them is repurchased in connection with
stabilization transactions. The effect of these transactions may
be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open
market. These transactions may be discontinued at any time.
The underwriters, dealers and agents and their affiliates may
engage in transactions with and perform services for us in the
ordinary course of business for which they receive compensation.
In compliance with the guidelines of the Financial Industry
Regulatory Authority, Inc. (FINRA), the maximum
discount or commission to be received by any FINRA member or
independent broker-dealer may not exceed 8.00% of the aggregate
gross sales proceeds of any shares of common stock offered
hereby.
Any common stock sold pursuant to a prospectus supplement will
be eligible for listing and trading on Nasdaq Global Select
Market, subject to official notice of issuance.
CERTAIN
ERISA CONSIDERATIONS
Unless otherwise indicated in the applicable prospectus
supplement, the offered securities may, subject to certain legal
restrictions, be held by (i) pension, profit sharing, and
other employee benefit plans which are subject to Title I
of the Employee Retirement Security Act of 1974, as amended
(which we refer to as ERISA), (ii) plans,
accounts, and other arrangements that are subject to
Section 4975 of the Internal Revenue Code of 1986, as
amended (which we refer to as the Code), or
provisions under federal, state, local,
non-U.S., or
other laws or regulations that are similar to any of the
provisions of Title I of ERISA or Section 4975 of the
Code (which we refer to as Similar Laws), and
(iii) entities whose underlying assets are considered to
include plan assets of any such plans, accounts, or
arrangement. Section 406 of ERISA and Section 4975 of
the Code prohibit plans from engaging in specified transactions
involving plan assets with persons who are
parties in interest under ERISA or
disqualified persons under the Code with respect to
such pension, profit sharing, or other employee benefit plans
that are subject to Section 406 of ERISA and
Section 4975 of the Code. A violation of these prohibited
transaction rules may result in an excise tax or other
liabilities under ERISA
and/or
Section 4975 of the Code. A violation of these prohibited
transaction rules may result in an excise tax or other
liabilities under ERISA
and/or
Section 4975 of the Code for such persons, unless exemptive
relief is available under an applicable statutory or
administrative exemption. A fiduciary of any such plan, account,
or arrangement must determine that the purchase and holding of
an interest in the offered securities is consistent with its
fiduciary duties and will not constitute or result in a
non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code, or a violation under any
applicable Similar Laws.
18
LEGAL
MATTERS
The validity of the securities offered hereby will be passed
upon for us by Patton Boggs LLP. The name of the law firm
advising any underwriters or agents with respect to certain
issues relating to any offering will be set forth in the
applicable prospectus supplement.
EXPERTS
The consolidated financial statements of TCBI appearing in
TCBIs Annual Report
(Form 10-K)
for the year ended December 31, 2008 and the effectiveness
of TCBIs internal control over financial reporting as of
December 31, 2008 have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set
forth in their reports thereon included therein, and
incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon
such reports given on the authority of such firm as experts in
accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SECs
website at http:/www.sec.gov. Copies of certain
information filed by us with the SEC are also available on our
website at
http:/www.texascapitalbank.com.
Our website is not a part of this prospectus. You may also read
and copy any document we file at the SECs public reference
room, 100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
room.
The SEC allows us to incorporate by reference
information we file with it, which means that we can disclose
important information to you by referring you to other
documents. The information incorporated by reference is
considered to be a part of this prospectus, and information that
we file later with the SEC will automatically update and
supersede this information. In all cases, you should rely on the
later information over different information included in this
prospectus.
We incorporate by reference the documents listed below and all
future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the termination
of the offering, except to the extent that any information
contained in such filings is deemed furnished in
accordance with SEC rules, including, but not limited to,
information furnished under Items 2.02 and 7.01 of any
Current Report on
Form 8-K
including related exhibits:
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Our Annual Report on
Form 10-K
for the year ended December 31, 2008, filed on
February 19, 2009.
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Our Current Reports on
Form 8-K
filed on January 6, 2009, January 16, 2009 and
January 29, 2009.
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The description of our common stock contained in our
Registration Statement on Form 10 filed on August 24,
2000.
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We will provide to each person, including any beneficial owner,
to whom a prospectus is delivered, a copy of any or all of the
documents or information that have been incorporated by
reference in this prospectus but not delivered with this
prospectus. We will provide this at no cost to the requestor
upon written or telephonic request addressed to Texas Capital
Bancshares, Inc., 2000 McKinney Avenue, Suite 700, Dallas,
Texas 75201, Attention: Myrna Vance (telephone:
214-932-6600).
You should rely only on the information contained or
incorporated by reference in this prospectus. We have not
authorized anyone else to provide you with additional or
different information.
19
PART II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The following table sets forth the various expenses to be
incurred in connection with the sale and distribution of the
securities being registered hereby, all of which will be borne
by TCBI (except any underwriting discounts and commissions and
expenses incurred by the selling securityholders for brokerage,
accounting, tax or legal services or any other expenses incurred
by the selling securityholders in disposing of the shares). All
amounts shown are estimates except the SEC registration fee.
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SEC Registration fee
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$
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8,370
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Legal fees and expenses
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$
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50,000
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Accounting fees and expenses
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$
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7,500
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Other
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$
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10,000
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Total Expenses
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$
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75,870
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Item 15.
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Indemnification
of Directors and Officers.
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Section 145 of the Delaware General Corporation Law permits
indemnification of officers, directors, and other corporate
agents under certain circumstances and subject to certain
limitations. Our certificate of incorporation and amended and
restated bylaws provide that we shall indemnify our directors,
officers, employees, and agents to the full extent permitted by
Delaware law. The certificate of incorporation and amended and
restated bylaws further provide that we may indemnify directors,
officers, employees, and agents in circumstances in which
indemnification is otherwise discretionary under Delaware law.
In addition, we entered into separate indemnification agreements
with our directors and officers which would require us, among
other things, to indemnify them against certain liabilities
which may arise by reason of their status or service (other than
liabilities arising from willful misconduct of a culpable
nature) and to maintain directors and officers
liability insurance, if available on reasonable terms.
These indemnification provisions and the indemnification
agreements that we have entered into with our officers and
directors may be sufficiently broad to permit indemnification of
our officers and directors for liabilities (including
reimbursement of expenses incurred) arising under the Securities
Act of 1933, as amended.
We have a policy of directors and officers liability
insurance that insures our directors and officers against the
cost of defense, settlement or payment of a judgment under
certain circumstances.
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Exhibit
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No.
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Description
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1
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.1
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Underwriting Agreement. To be filed as an exhibit to our Current
Report on
Form 8-K
and incorporated by reference or by post-effective amendment.
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4
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.1
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Form of Senior Debt Indenture (Including Form of Note).
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4
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.2
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Form of Subordinated Debt Indenture (Including Form of Note).
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4
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.3
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Form of Warrant Agreement (Stock) (including form of Warrant).
To be filed as an exhibit to our Current Report on
Form 8-K
and incorporated by reference or by post-effective amendment.
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4
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.4
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Form of Unit Agreement. To be filed as an exhibit to our Current
Report on
Form 8-K
and incorporated by reference or by post-effective amendment.
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5
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.1
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Opinion of Patton Boggs LLP
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12
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.1
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Statement of ratios of earnings to fixed charges
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23
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.1
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Consent of Ernst & Young LLP
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23
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.2
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Consent of Patton Boggs LLP (included in Exhibit 5.1)
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24
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.1
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Power of Attorney of certain officers and directors (located on
the signature page to the Registration Statement)
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II-1
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Exhibit
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No.
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Description
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25
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.1
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Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939, as amended (Senior
Debt Securities). To be filed in accordance with the
requirements of Section 305(b)(2) of the
Trust Indenture Act of 1939 and the appropriate rules
thereunder.
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25
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.2
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Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939, as amended
(Subordinated Debt Securities). To be filed in accordance with
the requirements of Section 305(b)(2) of the
Trust Indenture Act of 1939 and the appropriate rules
thereunder.
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The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended
(the Securities Act of 1933);
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and
(1)(iii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended (the
Exchange Act), that are incorporated by reference in
this registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of
this registration statement.
(2) That, for the purposes of determining any liability
under the Securities Act of 1933, each post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) each prospectus filed by a registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in
II-2
Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to
which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of a
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) the portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(6) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the indemnification provisions described herein, or
otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(8) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of
subsection (a) of section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)2 of the Act.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, on April 15, 2009.
TEXAS CAPITAL BANCSHARES, INC.
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By:
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/s/ George
F. Jones, Jr.
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George F. Jones, Jr.
President and Chief Executive Officer
POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint George F.
Jones, Jr. and Peter B. Bartholow, or either of them, as
his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all
capacities, to sign this Registration Statement (including all
pre-effective and post-effective amendments thereto and all
registration statements filed pursuant to Rule 462(b) which
incorporate this registration statement by reference), and to
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in
connection therewith as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and
confirming that all said attorneys-in-fact and agents, or their
substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by
the following persons on behalf of the Registrant and in the
capacities indicated on April 15, 2009.
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Signature
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Title
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/s/ George
F. Jones, Jr.
George
F. Jones, Jr.
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President, Chief Executive Officer and
Director
(Principal Executive Officer)
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/s/ Peter
B. Bartholow
Peter
B. Bartholow
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Executive Vice President, Chief Financial
Officer and Director
(Principal Financial Officer)
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/s/ Julie
Anderson
Julie
Anderson
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Controller
(Principal Accounting Officer)
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/s/ James
R. Holland, Jr.
James
R. Holland, Jr.
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Chairman of the Board and Director
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II-4
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Signature
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Title
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/s/ Joseph
M. Grant
Joseph
M. Grant
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Director
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/s/ Frederick
B. Hegi, Jr.
Frederick
B. Hegi, Jr.
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Director
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/s/ Larry
L. Helm
Larry
L. Helm
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Director
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/s/ Walter
W. McAllister III
Walter
W. McAllister III
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Director
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Director
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/s/ Steven
Rosenberg
Steven
Rosenberg
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Director
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/s/ John
C. Snyder
John
C. Snyder
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Director
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/s/ Robert
W. Stallings
Robert
W. Stallings
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Director
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/s/ Ian
J. Turpin
Ian
J. Turpin
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Director
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II-5
EXHIBIT INDEX
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Exhibit
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No.
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Description
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1
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.1
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Underwriting Agreement. To be filed as an exhibit to our Current
Report on
Form 8-K
and incorporated by reference or by post-effective amendment.
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4
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.1
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Form of Senior Debt Indenture (Including Form of Note).
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4
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.2
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Form of Subordinated Debt Indenture (Including Form of Note).
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4
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.3
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Form of Warrant Agreement (Stock) (including form of Warrant).
To be filed as an exhibit to our Current Report on
Form 8-K
and incorporated by reference or by post-effective amendment.
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4
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.4
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Form of Unit Agreement. To be filed as an exhibit to our Current
Report on
Form 8-K
and incorporated by reference or by post-effective amendment.
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5
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.1
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Opinion of Patton Boggs LLP
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12
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.1
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Statement of ratios of earnings to fixed charges
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23
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.1
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Consent of Ernst & Young LLP
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23
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.2
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Consent of Patton Boggs LLP (included in Exhibit 5.1)
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24
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.1
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Power of Attorney of certain officers and directors (located on
the signature page to the Registration Statement)
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25
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.1
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Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939, as amended (Senior
Debt Securities). To be filed in accordance with the
requirements of Section 305(b)(2) of the
Trust Indenture Act of 1939 and the appropriate rules
thereunder.
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25
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.2
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Statement of Eligibility on
Form T-1
under the Trust Indenture Act of 1939, as amended
(Subordinated Debt Securities). To be filed in accordance with
the requirements of Section 305(b)(2) of the
Trust Indenture Act of 1939 and the appropriate rules
thereunder.
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