As
filed with the Securities and Exchange Commission on November 19,
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
The
Savannah Bancorp, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Georgia
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58-1861820
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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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25 Bull Street, 6
th
Floor, Savannah, Georgia
31401
912-629-6500
(Address,
Including Zip Code, and Telephone Number,
Including
Area Code,
of
Registrant’s Principal Executive Offices)
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John
C. Helmken II
25
Bull Street, 6
th
Floor, Savannah, GA 31401
912-629-6500
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
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Copies
to:
J. Wiley
Ellis
Ellis,
Painter, Ratterree & Adams, LLP
2
E. Bryan Street, 10
th
Floor
Savannah,
Georgia 31401
(912)
233-9700
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Mark
C. Kanaly
Alston
& Bird LLP
1201
West Peachtree Street
Atlanta,
Georgia 30309
(404)
881-7000
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Approximate date of commencement of
proposed sale to the public:
From time to time after the effective date
of this registration statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
¨
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
¨
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the SEC pursuant to Rule 462(e) under the Securities Act, check the following
box.
¨
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.
¨
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):
Large accelerated filer
¨
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Accelerated
filer
x
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Non-accelerated
filer
¨
(do
not check if a smaller reporting company)
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Smaller
reporting company
¨
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CALCULATION
OF REGISTRATION FEE
Title
of each class of
securities
to be registered
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Amount
to be registered/
Proposed
maximum aggregate offering price per unit (1)
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Proposed
maximum offering price (2)
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Amount
of registration fee (3)
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Debt
Securities
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Common
Stock, par value $1.00 per share
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Preferred
Stock, par value $1.00 per share
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Warrants
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Rights
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Total
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$
12,000,000
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$
669.60
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(l) Not
applicable pursuant to General Instruction II.D of Form S-3.
(2)
Includes such indeterminate number or amount of debt securities, common stock,
preferred stock, warrants and rights as from time to time may be issued at
indeterminate prices and as may be issuable upon conversion, redemption,
exchange, exercise or settlement of any securities registered hereunder,
including under any applicable antidilution provisions; provided that in no
event will the aggregate initial offering price of all securities sold under
this registration statement exceed $12,000,000. If any debt securities are
issued at an original issue discount, the aggregate initial offering price as so
discounted shall not exceed $12,000,000, notwithstanding that the stated
principal amount of such debt securities may exceed such amount. Any securities
registered hereunder may be sold separately or as units consisting of more than
one type of security registered hereunder.
(3)
Calculated pursuant to
Rule 457(o) under the Securities Act of 1933, as amended, and General
Instruction II.D of Form S-3, which permits the registration fee to be
calculated on the basis of the proposed maximum aggregate offering price of all
the securities listed.
The
Registrants hereby amend this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrants shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. These
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell nor does it seek an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted.
Subject
to completion, dated November 19, 2009
THE
SAVANNAH BANCORP, INC.
Debt
Securities
Common
Stock
Preferred
Stock
Warrants
Rights
We may
offer, from time to time, up to $12,000,000 of our debt securities, common
stock, preferred stock, warrants, or rights, which we collectively refer to as
the “securities.” We may offer and sell any combination of the
securities described in this prospectus in different series at times, in
amounts, at prices and on terms to be determined at or prior to the time of each
offering.
This
prospectus describes some of the general terms that may apply to these
securities. The specific terms of any securities to be offered will be described
in a supplement to this prospectus. The prospectus supplement may also add,
update or change information contained in this prospectus. You should read this
prospectus and the applicable prospectus supplement carefully before you make
your investment decision. This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement.
We may
offer and sell these securities to or through one or more underwriters, dealers
and agents, or directly to purchasers, on a continuous or delayed basis. The
supplements to this prospectus will describe the terms of any offering of these
securities, including any underwriting arrangements. See “Plan of
Distribution.”
Our
common stock is listed on the NASDAQ Global Market under the trading symbol
“SAVB.” Each prospectus supplement will indicate if the securities offered
thereby will be listed on any securities exchange.
You should carefully read and
consider the risk factors included in our periodic reports and other information
that we file with the Securities and Exchange Commission before your invest in
our securities.
Neither
the Securities and Exchange Commission, any state securities commission, nor any
other regulatory body has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
Prospectus
dated [●], 2009.
TABLE
OF CONTENTS
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Important
Information
About This
Prospectus
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1
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Description
of Preferred Stock
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22
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Available
Information
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1
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Description
of Warrants
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22
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Incorporation
of Certain
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Description
of Rights
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23
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Information by
Reference
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2
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Legal
Ownership and Book-Entry
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Special
Note on Forward Looking
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Issuance
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23
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Statements
and Risk Factors
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2
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Ratio
of Earnings to Fixed Charges
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24
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Company
Summary
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4
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Use
of Proceeds
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24
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Description
of Securities We May Offer
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4
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Plan
of Distribution
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24
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Description
of Debt Securities
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5
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Validity
of the Securities
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26
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Description
of Common Stock
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21
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Experts
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26
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IMPORTANT
INFORMATION ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or SEC, using a “shelf” registration process. Under
this shelf registration process, we may, from time to time, sell any combination
of the securities described in this prospectus in one or more offerings. This
prospectus provides you with a general description of the securities we may
offer. No person is authorized to give any information or represent anything not
contained in this prospectus or any prospectus supplement. We are only offering
the securities in places where sales of those securities are permitted. You
should not assume that the information contained in this prospectus and any
accompanying prospectus supplement or information incorporated by reference
herein or therein, is current as of any date other than the date of such
information. Our business, financial condition, results of operations and
prospects may have changed since that date. Each time we offer securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering and the manner in which the securities will be
offered. We urge you to read this prospectus, any accompanying prospectus
supplement and other offering material together with additional information
described under the heading “Incorporation of Certain Information By
Reference.”
In
this prospectus, we refer to debt securities, common stock, preferred stock,
warrants and rights collectively as the “securities.” The terms “we,”
“our,” “ours” and “us” refer to The Savannah Bancorp, Inc. and our consolidated
subsidiaries, except that in the discussion of the capital stock and related
matters, these terms refer solely to The Savannah Bancorp, Inc. and not to any
of its subsidiaries.
AVAILABLE
INFORMATION
We are
required to file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any documents filed by us
at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our filings with the SEC are also available to the public
through the SEC’s Internet site at http://www.sec.gov and through the NASDAQ
Global Select Market, One Liberty Plaza, 165 Broadway, New York, NY 10006, on
which our common stock is listed.
We have
filed with the SEC a registration statement on Form S-3 relating to the
securities covered by this prospectus and any prospectus supplement. This
prospectus is a part of the registration statement and does not contain all the
information in the registration statement. Whenever a reference is made in this
prospectus or any prospectus supplement to a contract or other document, the
reference is only a summary and you should refer to the exhibits that are a part
of the registration statement for a copy of the contract or other document. You
may review a copy of the registration statement at the SEC’s public reference
room in Washington, D.C., as well as through the SEC’s Internet
site.
The SEC’s
rules allow us to incorporate by reference information into this prospectus.
This means that we can disclose important information to you by referring you to
another document. Any information referred to in this way is considered part of
this prospectus from the date we file that document. Any reports filed by us
with the SEC after the date of this prospectus will automatically update and,
where applicable, supersede any information contained in this prospectus or
incorporated by reference in this prospectus.
We
incorporate by reference into this prospectus the following documents or
information filed with the SEC (other than, in each case, documents or
information deemed to have been furnished and not filed in accordance with SEC
rules):
·
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our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008;
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our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009, June
30, 2009 and September 30, 2009;
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the
description of our common stock contained in our Registration Statement on
Form S-1 dated February 8, 1990 (including any amendment to that form that
we may have filed in the past, or may file in the future, for the purpose
of updating the description of our common stock);
and
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all
documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, on or after the date of this
prospectus and before the termination of the applicable offering (except
for information furnished to the SEC that is not deemed to be “filed” for
purposes of the Exchange Act).
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We will
provide without charge to each person, including any beneficial owner, to whom
this prospectus is delivered, upon his or her written or oral request, a copy of
any or all of the information that has been incorporated by reference into this
prospectus, excluding exhibits to those documents, unless they are specifically
incorporated by reference into those documents. These documents are available on
our website at http://www.savb.com. You can also request those documents from
our Corporate Secretary at the following address:
25 Bull
Street
Savannah,
Georgia 31401
(912)
629-6500
Except
as expressly provided above, no other information, including information on our
website, is incorporated by reference into this prospectus.
SPECIAL
NOTE ON FORWARD LOOKING STATEMENTS AND RISK FACTORS
Certain
of the statements in this prospectus and the other documents incorporated by
reference in this prospectus, particularly those anticipating future
performance, business prospects, growth and operating strategies, proposed
acquisitions, and similar matters, and those that include the words “believes,”
“anticipates,” “forecast,” “estimates” or similar expressions constitute
“forward-looking statements” within the meaning of Section 27A of the
Securities Act of 1933, as amended and Section 21E of the Securities
Exchange Act of 1934, as amended. For those statements, The Savannah Bancorp
claims the protection of the safe harbor for forward-looking statements
contained in the Private Securities Litigation Reform Act of 1995. There can be
no assurance that the forward-looking statements will be accurate because they
are based on many assumptions, which involve risks and
uncertainties.
The
following important factors could cause future results to differ:
·
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the
effects of the current economic crisis and general business conditions,
including, without limitation, the continuing dramatic deterioration of
the subprime, mortgage, credit and liquidity markets, as well as the
Federal Reserve’s actions with respect to interest
rates;
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the
effects of and changes in trade, monetary and fiscal policies, as well as
legislative and regulatory changes, including changes in banking,
securities and tax laws and regulations, as well as changes affecting
financial institutions’ ability to lend and otherwise do business with
consumers;
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·
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the
risks of changes in interest rates and the yield curve on the levels,
composition and costs of deposits, loan demand, and the values of loan
collateral, securities, and interest rate sensitive assets and
liabilities;
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risks
related to loans secured by real estate, including further adverse
developments in the real estate markets that would decrease the value and
marketability of collateral;
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the
inability of the Company to raise additional capital or to pursue other
strategic initiatives;
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adverse
conditions in the stock market and other capital markets and the impact of
those conditions on our capital markets and capital management activities,
including our investment and wealth management advisory
businesses;
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changes
in the cost and availability of funding due to changes in the deposit
market and credit market, or the way in which the Company is perceived in
such markets;
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the
effects of harsh weather conditions, including
hurricanes;
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changes
in United States foreign or military
policy;
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the
timely development of competitive new products and services by the Company
and the acceptance of those products and services by new existing
customers;
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the
willingness of customers to accept third-party products marketed by
us;
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the
willingness of customers to substitute competitors’ products and services
for the Company’s products and services and vice
versa;
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the
impact of changes in financial services’ laws and regulations (including
laws concerning taxes, banking, securities and
insurance);
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·
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changes
in consumer spending and saving
habits;
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·
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the
effect of corporate restructuring, acquisitions or dispositions, including
the actual restructuring and other related charges and the failure to
achieve the expected gains, revenue growth or expense savings from such
corporate restructuring, acquisitions or
dispositions;
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·
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the
growth and profitability of our noninterest or fee income being less than
expected;
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unanticipated
regulatory or judicial proceedings;
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the
impact of changes in accounting policies by the SEC or the Financial
Accounting Standards Board;
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the
limited trading activity of our common
stock;
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·
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the
effects of our lack of a diversified loan portfolio, including the risks
of geographic concentrations;
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adverse
changes in the financial performance and/or condition of our borrowers,
which could impact the repayment of those borrowers' outstanding
loans;
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·
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the
success of the Company at managing the risks involved in the foregoing;
and
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·
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other
risks identified in The Savannah Bancorp’s SEC reports and public
announcements.
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We do not
have any intention or obligation to update forward-looking statements to reflect
new information, future events or risks or the eventual outcome of the facts
underlying the forward-looking statements. New information, future
events or risks may cause the forward-looking events we discuss in this
prospectus not to occur or to occur in a manner different from what we
expect.
The risk
factors discussed in our Annual Report on Form 10-K for the fiscal year ended
December 31, 2008 and as updated in any future filings with the SEC, could cause
our results to differ materially from those expressed in forward-looking
statements. There may also be other risks that we are unable to predict at this
time.
COMPANY
SUMMARY
The
Company was incorporated as a Georgia business corporation on October 5, 1989,
for the purpose of becoming a bank holding company. The Company
became a bank holding company within the meaning of the Federal Bank Holding
Company Act and the Georgia Bank Holding Company Act upon the acquisition of 100
percent of the common stock of The Savannah Bank, National Association
("Savannah") on August 22, 1990.
On
December 15 1998, the Company acquired Bryan Bancorp of Georgia, Inc. (“Bryan”),
the bank holding company for Bryan Bank & Trust (“Bryan Bank”), and Bryan
Bank became a wholly-owned subsidiary of the Company.
On
February 6, 2006, the Company formed Harbourside Community Bank (“Harbourside”),
a federal stock savings bank, located on Hilton Head Island, South
Carolina. Effective September 30, 2009, the Company merged the
charter of Harbourside into Savannah.
The
Company acquired all of the net assets of Minis & Co., Inc. (“Minis”) as of
August 31, 2007. The net assets of Minis were incorporated into a
new, wholly-owned subsidiary of the Company which operates under the name of
Minis & Co., Inc. Minis is a registered investment advisor based
in Savannah, Georgia, offering a full line of investment management
services.
On
September 30, 2008, the Company formed a new subsidiary, SAVB Holdings, LLC
(“SAVB Holdings”), to hold previously identified problem loans (including
problem and nonperforming loans) and foreclosed real estate (“OREO”) primarily
from its Harbourside subsidiary.
Savannah,
Bryan Bank, Minis and SAVB Holdings are the four operating subsidiaries of the
Company. The two bank subsidiaries, collectively, are referred to as
the “Subsidiary Banks” or “Banks”. Savannah received its charter from
the Office of the Comptroller of the Currency (“OCC”) to commence business and
opened for business on August 22, 1990. Bryan Bank received its
charter from the Georgia Department of Banking and Finance (“GDBF”) in December
1989. The deposits at the Subsidiary Banks are insured by the Federal
Deposit Insurance Corporation ("FDIC").
As of
September 30, 2009, Savannah had eight full service offices and one loan
production office, total assets of $766 million, total loans of $640
million, total deposits of $665 million, total shareholders’ equity of $61
million and $2.7 million in net income for the nine months then
ended. As of September 30, 2009, Bryan Bank had two full service
offices, total assets of $254 million, total loans of $212 million, total
deposits of $217 million, total shareholders’ equity of $22 million and net
income of $2.2 million for the nine months then ended. Harbourside
had a net loss of $2.4 million for the nine months ended September 30, 2009
prior to its merger with Savannah.
In
September 2005, the Company formed SAVB Properties, LLC for the primary purpose
of owning a 50 percent interest in two real estate
partnerships. Johnson Square Associates, a Georgia general
partnership, owns a seven-story, 35,000 square foot building at 25 Bull Street
on Johnson Square in downtown Savannah. The Company currently leases
approximately 25 percent of this space for its corporate headquarters and the
main office of Savannah. Whitaker Street Associates, a Georgia
Limited Partnership, owns the 80’ x 200’ parking lot directly across Whitaker
Street from 25 Bull Street.
Under an
agreement with the City of Savannah, the parking lot was recently re-developed
as part of a 3 acre, 1100 space underground parking garage. The
partnership’s surface parking lot was restored and now includes the structural
foundation adequate to support a 6-story building, the maximum height allowed on
this property by city ordinances. This lot adjoins Ellis Square, one
of Savannah’s original squares, which is being restored by the City of
Savannah.
This
prospectus contains summary descriptions of our debt securities, common stock,
preferred stock, warrants and rights that we may offer from time to time. These
summary descriptions are not meant to be complete descriptions of each security.
The particular terms of any security will be described in the related prospectus
supplement and other offering material.
General
Unless
stated otherwise in the applicable prospectus supplement, the following
description outlines the material terms of the senior debt securities and the
subordinated debt securities, which we collectively refer to as the debt
securities, that we may offer from time to time. The specific terms of any debt
securities we may offer and the extent, if any, to which these general terms and
provisions may or may not apply to the debt securities will be described in the
applicable prospectus supplement relating to the particular series of debt
securities.
We will
issue the senior debt securities under an indenture which we will enter into
with a trustee to be determined at the time of an offering of such securities.
We will issue the subordinated debt securities under a separate indenture which
we also will enter into with a trustee to be determined at the time of an
offering of such securities. The indentures will be subject to and governed by
the Trust Indenture Act of 1939, as amended, or the “Trust Indenture Act,” and
we may supplement the indentures from time to time after we execute them
according to their terms.
The
following description of the debt securities may not be complete and is subject
to and qualified in its entirety by reference to the form of either the senior
or the subordinated indenture relating to the particular series of debt
securities, each of which we have filed as an exhibit to the registration
statement that contains this prospectus. Capitalized terms used but not defined
in this description will have the meanings given to them in the indentures.
Wherever we refer to particular sections or defined terms of the indentures, it
is our intent that those sections or defined terms will be incorporated by
reference into this prospectus.
Terms
The debt
securities will be our direct, unsecured obligations. The indebtedness
represented by the senior debt securities will rank equally with all our other
unsecured and unsubordinated debt but will be subordinated to all of our
existing and future secured indebtedness, but only to the extent of the
applicable collateral. The indebtedness represented by the subordinated debt
securities will rank junior to our senior debt in right of payment, under the
terms set forth in the subordinated indenture, and will be subject to our prior
payment in full of our senior debt, all as described below under
“—Subordination.”
The
indentures will not limit the aggregate principal amount of debt securities that
we may issue; however, the amount of debt securities we offer will be limited to
the amount described on the cover of this prospectus. We may issue debt
securities, in one or more series from time to time, as our board of directors
may establish by resolution or as we may establish in one or more supplemental
indentures. We may issue debt securities with terms different from those of debt
securities we previously issued. We may issue debt securities of the same series
at more than one time and, unless prohibited by the terms of the series, we may
reopen a series for issuances of additional debt securities, without the consent
of the holders of the outstanding debt securities of that series. The debt
securities may be denominated and payable in foreign currencies or units based
on or related to foreign currencies. Special United States federal income tax
considerations applicable to any debt securities denominated in foreign
currencies will be described in the applicable prospectus
supplement.
Each
indenture will permit more than one trustee under the indenture, each with
respect to one or more series of the debt securities. Any trustee under an
indenture may resign or be removed with respect to one or more series of the
debt securities, and a successor trustee may be appointed to act with respect to
that series. Upon prior written notice, a trustee may be removed by act of the
holders of a majority in principal amount of the outstanding debt securities of
the series with respect to which the trustee acts as trustee. If two or more
persons are acting as trustee with respect to different series of debt
securities, each trustee will be a trustee of a trust under the applicable
indenture unrelated to the trust administered by any other trustee. Except as
otherwise stated in this prospectus, any action described in this prospectus to
be taken by each trustee may only be taken by the trustee with respect to the
one or more series of debt securities for which it is trustee under the
applicable indenture.
You
should refer to the applicable prospectus supplement relating to a particular
series of debt securities for the specific terms of the debt securities,
including, but not limited to:
(1) the
title of the debt securities of the series and whether the debt securities are
senior debt securities or subordinated debt securities;
(2) the aggregate principal amount
of the debt securities of the series;
(3) the
price (expressed as a percentage of the principal amount of the debt securities)
at which we will issue the debt securities of the series;
(4) the
terms, if any, by which holders may convert or exchange the debt securities of
the series into or for common stock or other of our securities or
property;
(5) if
the debt securities of the series are convertible or exchangeable, any
limitations on the ownership or transferability of the securities or property
into which holders may convert or exchange the debt securities;
(6) the
date or dates, or the method for determining the date or dates, on which we will
be obligated to pay the principal of the debt securities of the series and the
amount of principal we will be obligated to pay;
(7) the
rate or rates, which may be fixed or variable, at which the debt securities of
the series will bear interest, if any, or the method by which the rate or rates
will be determined;
(8) the
date or dates, or the method for determining the date or dates, from which any
interest will accrue on the debt securities of the series, the dates on which we
will be obligated to pay any such interest, the regular record dates if any, for
the interest payments, or the method by which the dates shall be determined, the
persons to whom we will be obligated to pay interest, and the basis upon which
interest shall be calculated if other than that of a 360-day year consisting of
twelve 30-day months;
(9) the
place or places where the principal of, and any premium, Make-Whole Amount (as
defined in the indentures), interest or Additional Amounts (as defined in the
indentures) on, the debt securities of the series will be payable, where the
holders of the debt securities may surrender debt securities for conversion,
transfer or exchange, and where notices or demands to or upon us in respect of
the debt securities and the indentures may be served;
(10) if
other than the trustee, the identity of each security registrar and/or paying
agent for debt securities of the series;
(11) the
period or periods during which, the price or prices (including any premium or
Make-Whole Amount) at which, the currency or currencies in which, and the other
terms and conditions upon which, we may redeem the debt securities of the
series, at our option, if we have such an option;
(12) any
obligation of ours to redeem, repay or purchase debt securities pursuant to any
sinking fund or analogous provision or at the option of a holder of debt
securities, and the terms and conditions upon which we will redeem, repay or
purchase all or a portion of the debt securities of the series pursuant to that
obligation;
(13) the
currency or currencies in which we will sell the debt securities and in which
the debt securities of the series will be denominated and payable;
(14) whether
the amount of payment of principal of, and any premium, Make-Whole Amount, or
interest on, the debt securities of the series may be determined with reference
to an index, formula or other method and the manner in which the amounts will be
determined;
(15) whether
the principal of, and any premium, Make-Whole Amount, interest or Additional
Amounts on, the debt securities of the series are to be payable, at our election
or at the election of the holder of the debt securities, in a currency or
currencies other than that in which the debt securities are denominated or
stated to be payable, the period or periods during which, and the terms and
conditions upon which, this election may be made, and the time and manner of,
and identity of the exchange rate agent with responsibility for, determining the
exchange rate between the currency or currencies in which the debt securities
are denominated or stated to be payable and the currency or currencies in which
the debt securities will be payable;
(16) any
provisions granting special rights to the holders of the debt securities of the
series at the occurrence of certain events;
(17) any
additions to, modifications of or deletions from the terms of the debt
securities with respect to the events of default or covenants contained in the
applicable indenture;
(18) whether
the debt securities of the series will be issued in definitive or book-entry
form, represented by a global security, and the related terms and
conditions;
(19) whether
the debt securities of the series will be in registered or bearer form and the
terms and conditions relating to the applicable form, and if in registered form,
the denomination in which we will issue the debt securities if other than $1,000
or a multiple of $1,000 and, if in bearer form, the denominations in which we
will issue the debt securities if other than $5,000 or a multiple of
$5,000;
(20) the
applicability, if any, of the defeasance or covenant defeasance provisions
described below under “ — Discharge, Defeasance and Covenant Defeasance” on any
series of debt securities;
(21) any
applicable United States federal income tax consequences, including whether and
under what circumstances we will pay any Additional Amounts as contemplated in
the applicable indenture on the debt securities, to any holder who is not a
United States person in respect of any tax, assessment or governmental charge
withheld or deducted and, if we will pay Additional Amounts, whether we will
have the option, and on what terms to redeem the debt securities instead of
paying the Additional Amounts;
(22) whether
we may extend the interest payment periods and, if so, the terms of any
extension;
(23) if
the principal amount payable on any maturity date will not be determinable on
any one or more dates prior to the maturity date, the amount which will be
deemed to be the principal amount as of any date for any purpose, including the
principal amount which will be due and payable upon any maturity other than the
maturity date, or the manner of determining that amount;
(24) any
other covenant or warranty included for the benefit of the debt securities of
the series;
(25) any
proposed listing of the debt securities of the series on any securities
exchange; and
(26) any
other terms of such debt securities not inconsistent with the provisions of the
applicable indenture.
The debt
securities of a series may provide for less than their entire principal amount
to be payable if we accelerate the maturity of the debt securities as a result
of the occurrence and continuation of an event of default. If this is the case,
the debt securities would have what is referred to as “original issue discount.”
Any special U.S. federal income tax, accounting and other considerations
applicable to original issue discount securities will be described in the
applicable prospectus supplement.
We may
issue debt securities of a series from time to time, with the principal amount
payable on any principal payment date, or the amount of interest payable on any
interest payment date, to be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors. Holders of
these debt securities may receive a principal amount on any principal payment
date, or a payment of interest on any interest payment date, that is greater
than or less than the amount of principal or interest otherwise payable on such
dates, depending upon the value on the applicable dates of the applicable
currency, commodity, equity index or other factors.
Information
as to the methods for determining the amount of principal or interest payable on
any date, the currencies, commodities, equity indices or other factors to which
the amount payable on such date is linked and certain additional tax
considerations will be described in the applicable prospectus
supplement.
The
indentures will not contain any provisions that afford holders of the debt
securities protection in the event we engage in a transaction in which we incur
or acquire a large amount of additional debt.
Denominations, Interest, Registration
and Transfer
Unless
stated otherwise in the applicable prospectus supplement, debt securities we
issue in registered form of any series will be issued in denominations of $1,000
and multiples of $1,000 and debt securities we issue in bearer form will be
issued in denominations of $5,000 and multiples of $5,000.
The
principal of, and any premium, Make-Whole Amount, or interest on, any series of
debt securities will be payable in the currency designated in the applicable
prospectus supplement and except as described otherwise in the applicable
prospectus supplement, at the corporate trust office of the trustee
.
At our option, however,
payment of interest may be made by check mailed to the address of the person
entitled to the interest payment as it appears in the security register for the
series or by wire transfer of funds to that person at an account maintained
within the United States. We will have the right to require a holder of debt
securities, in connection with any payment on such debt securities, to certify
information to us or, in the absence of such certification, we will be entitled
to rely on any legal presumption to enable us to determine our obligation, if
any, to deduct or withhold taxes, assessments or governmental charges from such
payment. We may at any time designate additional paying agents, remove any
paying agents, 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 any series of debt securities. All monies we pay to a paying
agent for the payment of principal of, or any premium, Make-Whole Amount,
interest or Additional Amounts on, any debt security which remains unclaimed at
the end of two years after the principal, premium or interest has become due and
payable will be repaid to us, subject to any applicable law. After this time,
the holder of the debt security will be able to look only to us for
payment.
Any
interest we do not punctually pay on any interest payment date with respect to a
debt security will be defaulted interest and will cease to be payable to the
holder on the original regular record date and may
either:
(1) be
paid to the holder at the close of business on a special record date for the
payment of defaulted interest to be fixed by the applicable trustee;
or
(2) be
paid at any time in any other lawful manner, all as more completely described in
the applicable indenture.
If the
defaulted interest is to be paid on a special record date, notice of the special
record date will be mailed to each holder of such debt security not less than
ten days before the special record date.
Subject
to certain limitations imposed on debt securities issued in book-entry form,
debt securities of any series will be exchangeable for other debt securities of
the same series and with the same total principal amount and authorized
denomination upon surrender of the debt securities at the corporate trust office
of the applicable trustee. In addition, subject to limitations imposed upon debt
securities issued in book-entry form, the debt securities of any series may be
surrendered for conversion, transfer or exchange at the corporate trust office
of the applicable trustee. Every debt security surrendered for conversion,
transfer or exchange will be duly endorsed or accompanied by a written
instrument of transfer. There will be no service charge on any transfer or
exchange of debt securities, but we may require payment by holders to cover any
tax or other governmental charge payable in connection with the transfer or
exchange.
If the
applicable prospectus supplement refers to us designating a transfer agent (in
addition to the applicable trustee) for any series of debt securities, we may at
any time remove the transfer agent or approve a change in the location at which
the transfer agent acts, provided that we maintain a transfer agent in each
place of payment for any series of debt securities. We may at any time designate
additional transfer agents with respect to any series of debt
securities.
Neither
we nor any trustee will be required to do any of the
following:
(1) issue,
register the transfer of or exchange debt securities of any series during a
period beginning at the opening of business 15 days before there is a
selection of debt securities of that series to be redeemed and ending at the
close of business on the day of mailing or publication of the relevant notice of
redemption;
(2) register
the transfer of or exchange any debt security, or portion thereof, called for
redemption, except the unredeemed portion of any debt security being only
partially redeemed;
(3) exchange
any debt security in bearer form that is selected for redemption, except a debt
security in bearer form may be exchanged for a debt security in registered form
of that series and like denomination, provided that the debt security in
registered form shall be simultaneously surrendered for redemption or exchange;
or
(4) issue,
register the transfer of or exchange any debt security that has been surrendered
for repayment at the option of the holder, except the portion, if any, of the
debt security that is not to be repaid.
Book-Entry Delivery and
Settlement
Global Notes
We will
issue debt securities in the form of one or more global notes in definitive,
fully registered, book-entry form. The global notes will be deposited with or on
behalf of The Depository Trust Company, or “DTC,” and registered in the name of
Cede & Co., as nominee of DTC.
DTC, Clearstream and
Euroclear
Beneficial
interests in the global notes will be represented through book-entry accounts of
financial institutions acting on behalf of beneficial owners as direct and
indirect participants in DTC. Investors may hold interests in the global notes
through either DTC in the United States, Clearstream Banking, societe anonyme,
Luxembourg, which we refer to as “Clearstream,” or Euroclear Bank S.A./ N.V., as
operator of the Euroclear System, which we refer to as “Euroclear,” in Europe,
either directly if they are participants in such systems or indirectly through
organizations that are participants in such systems. Clearstream and Euroclear
will hold interests on behalf of their participants through customers’
securities accounts in Clearstream’s and Euroclear’s names on the books of their
U.S. depositaries, which in turn will hold such interests in customers’
securities accounts in the U.S. depositaries’ names on the books of
DTC.
DTC has
advised that:
(1) DTC
is a limited-purpose trust company organized under the New York Banking Law, a
“banking organization” within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a “clearing corporation” within the meaning of
the New York Uniform Commercial Code and a “clearing agency” registered under
Section 17A of the Exchange Act.
(2) DTC
holds securities that its participants deposit with DTC and facilitates the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in participants’ accounts, thereby eliminating the need for physical
movement of securities certificates.
(3) Direct
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and other organizations, some of whom, and/or their
representatives, own DTC.
(4) DTC
is owned by a number of its direct participants and by The New York Stock
Exchange, Inc., the American Stock Exchange LLC and the National Association of
Securities Dealers, Inc.
(5) Access
to the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with a direct participant, either directly or
indirectly.
(6) The
rules applicable to DTC and its direct and indirect participants are on file
with the SEC.
Clearstream
has advised that it is incorporated under the laws of Luxembourg as a
professional depositary. Clearstream holds securities for its customers and
facilitates the clearance and settlement of securities transactions between its
customers through electronic book-entry changes in accounts of its customers,
thereby eliminating the need for physical movement of certificates. Clearstream
provides to its customers, among other things, services for safekeeping,
administration, clearance and settlement of internationally traded securities
and securities lending and borrowing. Clearstream interfaces with domestic
markets in several countries. As a professional depositary, Clearstream is
subject to regulation by the Luxembourg Commission for the Supervision of the
Financial Section. Clearstream customers are recognized financial institutions
around the world, including underwriters, securities brokers and dealers, banks,
trust companies, clearing corporations and other organizations and may include
the underwriters for any series of debt securities. Indirect access to
Clearstream is also available to others, such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a
Clearstream customer either directly or indirectly.
Euroclear
has advised that it was created in 1968 to hold securities for participants of
Euroclear and to clear and settle transactions between Euroclear participants
through simultaneous electronic book-entry delivery against payment, thereby
eliminating the need for physical movement of certificates and any risk from
lack of simultaneous transfers of securities and cash. Euroclear provides
various other services, including securities lending and borrowing and
interfaces with domestic markets in several countries. Euroclear is operated by
Euroclear Bank S.A./N.V., which we refer to as the Euroclear Operator, under
contract with Euroclear Clearance Systems S.C., a Belgian cooperative
corporation, which we refer to as the Cooperative. All operations are conducted
by the Euroclear Operator, and all Euroclear securities clearance accounts and
Euroclear cash accounts are accounts with the Euroclear Operator, not the
Cooperative. The Cooperative establishes policy for Euroclear on behalf of
Euroclear participants. Euroclear participants include banks (including central
banks), securities brokers and dealers, and other professional financial
intermediaries and may include the underwriters for any series of debt
securities. Indirect access to Euroclear is also available to other firms that
clear through or maintain a custodial relationship with a Euroclear participant,
either directly or indirectly.
We
understand that the Euroclear Operator is licensed by the Belgian Banking and
Finance Commission to carry out banking activities on a global basis. As a
Belgian bank, it is regulated and examined by the Belgian Banking and Finance
Commission.
We have
provided the descriptions of the operations and procedures of DTC, Clearstream
and Euroclear in this prospectus solely as a matter of convenience. These
operations and procedures are solely within the control of those organizations
and are subject to change by them from time to time. We do not take any
responsibility for these operations or procedures, and you are urged to contact
DTC, Clearstream and Euroclear or their participants directly to discuss these
matters.
We expect
that under procedures established by DTC:
(1) upon
deposit of the global notes with DTC or its custodian, DTC will credit on its
internal system the accounts of direct participants designated by the
underwriters with portions of the principal amounts of the global notes;
and
(2) ownership
of debt securities will be shown on, and the transfer of ownership thereof will
be effected only through, records maintained by DTC or its nominee, with respect
to interests of direct participants, and the records of direct and indirect
participants, with respect to interests of persons other than
participants.
The laws
of some jurisdictions may require that purchasers of securities take physical
delivery of those securities in definitive form. Accordingly, the ability to
transfer interests in debt securities represented by a global note to those
persons may be limited. In addition, because DTC can act only on behalf of its
participants, who in turn act on behalf of persons who hold interests through
participants, the ability of a person having an interest in notes represented by
a global note to pledge or transfer those interests to persons or entities that
do not participate in DTC’s system, or otherwise to take actions in respect of
such interest, may be affected by the lack of a physical definitive security in
respect of such interest.
So long
as DTC or its nominee is the registered owner of a global note, DTC or that
nominee will be considered the sole owner or holder of debt securities
represented by that global note for all purposes under the indenture. Except as
provided below, owners of beneficial interests in a global note will not be
entitled to have notes represented by that global note registered in their
names, will not receive or be entitled to receive physical delivery of
certificated notes and will not be considered the owners or holders thereof
under the indenture for any purpose, including with respect to the giving of any
direction, instruction or approval to the trustee. Accordingly, each holder
owning a beneficial interest in a global note must rely on the procedures of DTC
and, if that holder is not a direct or indirect participant, on the procedures
of the participant through which that holder owns its interest, to exercise any
rights of a holder of notes under the indenture or a global
note.
Neither
we nor the trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of debt securities by DTC,
Clearstream or Euroclear, or for maintaining, supervising or reviewing any
records of those organizations relating to the debt
securities.
Payments
on debt securities represented by the global notes will be made to DTC or its
nominee, as the case may be, as the registered owner thereof. We expect that DTC
or its nominee, upon receipt of any payment on debt securities represented by a
global note, will credit participants’ accounts with payments in amounts
proportionate to their respective beneficial interests in the global note as
shown in the records of DTC or its nominee. We also expect that payments by
participants to owners of beneficial interests in the global note held through
such participants will be governed by standing instructions and customary
practice as is now the case with securities held for the accounts of customers
registered in the names of nominees for such customers. The participants will be
responsible for those payments.
Distributions
on debt securities held beneficially through Clearstream will be credited to
cash accounts of its customers in accordance with its rules and procedures, to
the extent received by the U.S. depositary for Clearstream.
Securities
clearance accounts and cash accounts with the Euroclear Operator are governed by
the Terms and Conditions Governing Use of Euroclear and the related Operating
Procedures of the Euroclear System, and applicable Belgian law, which we refer
to collectively as the “Terms and Conditions.” The Terms and Conditions govern
transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in
Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear Operator acts under the Terms and Conditions only on behalf of
Euroclear participants and has no record of or relationship with persons holding
through Euroclear participants.
Distributions
on debt securities held beneficially through Euroclear will be credited to the
cash accounts of its participants in accordance with the Terms and Conditions,
to the extent received by the U.S. depositary for Euroclear.
Clearance and Settlement
Procedures
Initial
settlement for debt securities will be made in immediately available funds.
Secondary market trading between DTC participants will occur in the ordinary way
in accordance with DTC rules and will be settled in immediately available funds.
Secondary market trading between Clearstream customers and/or Euroclear
participants will occur in the ordinary way in accordance with the applicable
rules and operating procedures of Clearstream and Euroclear, as applicable, and
will be settled using the procedures applicable to conventional eurobonds in
immediately available funds.
Cross-market
transfers between persons holding directly or indirectly through DTC, on the one
hand, and directly or indirectly through Clearstream customers or Euroclear
participants, on the other, will be effected through DTC in accordance with DTC
rules on behalf of the relevant European international clearing system by its
U.S. depositary; however, such cross-market transactions will require delivery
of instructions to the relevant European international clearing system by the
counterparty in such system in accordance with its rules and procedures and
within its established deadlines (European time). The relevant European
international clearing system will, if the transaction meets its settlement
requirements, deliver instructions to the U.S. depositary to take action to
effect final settlement on its behalf by delivering or receiving debt securities
in DTC, and making or receiving payment in accordance with normal procedures for
same-day funds settlement applicable to DTC. Clearstream customers and Euroclear
participants may not deliver instructions directly to their U.S.
depositaries.
Because
of time-zone differences, credits of debt securities received in Clearstream or
Euroclear as a result of a transaction with a DTC participant will be made
during subsequent securities settlement processing and dated the business day
following the DTC settlement date. Such credits or any transactions in debt
securities settled during such processing will be reported to the relevant
Clearstream customers or Euroclear participants on such business day. Cash
received in Clearstream or Euroclear as a result of sales of debt securities by
or through a Clearstream customer or a Euroclear participant to a DTC
participant will be received with value on the DTC settlement date but will be
available in the relevant Clearstream or Euroclear cash account only as of the
business day following settlement in DTC.
Although
DTC, Clearstream and Euroclear have agreed to the foregoing procedures to
facilitate transfers of debt securities among participants of DTC, Clearstream
and Euroclear, they are under no obligation to perform or continue to perform
such procedures and such procedures may be changed or discontinued at any
time.
Certificated
Notes
Individual
certificates in respect of debt securities will not be issued in exchange for
the global notes, except in very limited circumstances. We will issue or cause
to be issued certificated notes to each person that DTC identifies as the
beneficial owner of debt securities represented by a global note upon surrender
by DTC of the global note if:
·
|
DTC
notifies us that it is no longer willing or able to act as a depositary
for such global note or ceases to be a clearing agency registered under
the Exchange Act and we have not appointed a successor depositary within
90 days of that notice or becoming aware that DTC is no longer so
registered;
|
·
|
an
event of default has occurred and is continuing, and DTC requests the
issuance of certificated notes; or
|
·
|
we
determine not to have the applicable series of debt securities of such
series represented by a global
note.
|
Neither we
nor the trustee will be liable for any delay by DTC, its nominee or any direct
or indirect participant in identifying the beneficial owners of debt securities.
We and the trustee may conclusively rely on, and will be protected in relying
on, instructions from DTC or its nominee for all purposes, including with
respect to the registration and delivery, and the respective principal amounts,
of the certificated notes to be issued.
Merger, Consolidation or
Sale
Each
indenture will provide that we may consolidate with, or sell, lease or otherwise
transfer all or substantially all of our assets to, or merge with or into, any
other corporation or trust or entity provided that:
(1) we
are the survivor in the merger, or the survivor, if not us, is an entity
organized under the laws of the United States or a state of the United States
and expressly assumes by supplemental indenture the due and punctual payment of
the principal of, and any premium, Make-Whole Amount, interest or Additional
Amounts on, all of the outstanding debt securities and the due and punctual
performance and observance of all of the covenants and conditions contained in
each indenture;
(2) immediately
after giving effect to the transaction and treating any indebtedness that
becomes an obligation of ours or one of our subsidiaries as a result of the
transaction, as having been incurred by us or the subsidiary at the time of the
transaction, there is no event of default under the indenture, and no event
which, after notice or the lapse of time, or both, would become an event of
default;
(3) if,
as a result of the transaction, our property or assets would be subject to an
encumbrance that would not be permitted under the indenture, we shall take steps
to secure the debt securities equally and ratably with all indebtedness secured
in the transaction; and
(4) certain
other conditions that are described in the indentures are met.
Upon any
such consolidation, merger, or sale, the successor corporation formed, or into
which we are merged or to which we are sold, shall succeed to, and be
substituted for, us under the indentures.
This
covenant would not apply to any recapitalization transaction, change of control
of us or a transaction in which we incur a large amount of additional debt
unless the transactions or change of control included a merger or consolidation
or transfer of substantially all of our assets. Unless stated otherwise in the
applicable prospectus supplement, there will be no covenants or other provisions
in the indentures providing for a put or increased interest or that would
otherwise afford holders of debt securities additional protection in the event
of a recapitalization transaction, a change of control of us or a transaction in
which we incur or acquire a large amount of additional debt.
Certain Covenants of the Debt
Securities
Unless
stated otherwise in the applicable prospectus supplement for a particular series
of debt securities, each indenture will contain the provisions described
below.
Except as
permitted under “— Merger, Consolidation or Sale” above, we will do or cause to
be done all things necessary to preserve and keep our legal existence, rights
and franchises in full force and effect; provided, however, that we will not be
required to preserve any right or franchise if we determine that the
preservation of that right or franchise is no longer desirable in the conduct of
our business and that its loss is not disadvantageous in any material respect to
the holders of any debt securities.
We will
cause all of our material properties used or useful in the conduct of our
business or the business of any of our subsidiaries to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and we will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements for those properties, as we in our
judgment believe is necessary so that we may carry on the business related to
those properties properly and advantageously at all times; provided, however,
that we will not be prevented from selling or otherwise disposing of our
properties or the properties of our subsidiaries in the ordinary course of
business.
We will
pay or discharge, or cause to be paid or discharged, before they become
delinquent,
(1) all
taxes, assessments and governmental charges levied or imposed upon us or any of
our subsidiaries or upon income, profits or property of us or our subsidiaries;
and
(2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon our property or any subsidiary of ours;
provided,
however, that we will not be required to pay or discharge or cause to be paid or
discharged any tax, assessment, charge or claim the amount, applicability or
validity of which is being contested in good faith by appropriate
proceedings.
We may
choose not to comply with any term, provision or condition of the foregoing
covenants, or with certain other terms, provisions or conditions with respect to
the debt securities of a series (except any such term, provision or condition
which could not be amended without the consent of all holders of such series),
if before or after the time for compliance with the covenant, term, provision or
condition, the holders of at least a majority in principal amount of all
outstanding debt securities of the series either waive compliance in that
instance or generally waive compliance with that covenant or condition. Unless
the holders expressly waive compliance with a covenant and the waiver has become
effective, our obligations and the duties of the trustee in respect of the term,
provision, or condition will remain in full force and effect.
Any
additional covenants with respect to any series of debt securities will be
described in the applicable prospectus supplement.
Events of Default, Notice and
Waiver
Unless
stated otherwise in the applicable prospectus supplement for any series of debt
securities, each of the following “Events of Default” will be set forth in the
indentures and will be applicable to each series of debt securities we may issue
under those indentures:
(1) we
fail for 30 days to pay any installment of interest or any Additional
Amounts payable on any debt security of that series;
(2) we
fail to pay the principal of, or any premium or Make-Whole Amount on, any debt
security of that series when due, either at maturity, redemption or
otherwise;
(3) we
fail to make any sinking fund payment when due as required for any debt security
of that series;
(4) we
default in the performance of or breach any other covenant or agreement we made
in the indenture that is applicable to the debt securities of that series other
than a covenant added to the indenture solely for the benefit of another series
of debt securities, which default or breach has continued for 60 days after
written notice as provided for in accordance with the applicable indenture by
the applicable trustee or the holders of at least 25% in principal amount of the
outstanding debt securities of the affected series;
(5) we
default under a bond, debenture, note or other evidence of indebtedness for
money borrowed by us in an amount to be set forth in the indenture governing the
notes (other than non-recourse indebtedness) under the terms of the instrument
under which the indebtedness is issued or secured, which default has caused the
indebtedness to become due and payable earlier than it would otherwise have
become due and payable, and the acceleration has not been rescinded or annulled,
or the indebtedness is discharged, or there is deposited in trust enough money
to discharge the indebtedness, within 30 days after written notice was
provided to us in accordance with the indenture;
(6) certain
events of bankruptcy, insolvency or reorganization occur; and
(7) any
other event of default specified in the applicable prospectus supplement
occurs.
Acceleration of Debt
Securities
If there
is a continuing event of default under an indenture with respect to outstanding
debt securities of a series, then the applicable trustee or the holders of not
less than 25% of the total principal amount of the outstanding debt securities
of that series, voting as a single class, may declare immediately due and
payable the principal amount or other amount as may be specified in the terms of
the debt securities of, and any specified premium or Make-Whole Amount on, all
of the debt securities of that series. However, at any time after a declaration
of acceleration with respect to any or all debt securities of a series then
outstanding has been made, but before a judgment or decree for payment of the
money due has been obtained by the applicable trustee, the holders of not less
than a majority in principal amount of the outstanding debt securities of that
series may cancel the acceleration if:
(1) we
deposit with the applicable trustee all required payments of the principal of,
and any premium, Make-Whole Amount, interest or Additional Amounts, on the
applicable debt securities, plus certain fees, expenses, disbursements and
advances of the applicable trustee; and
(2) all
events of default, other than the nonpayment of accelerated principal, premium,
Make-Whole Amount or other amounts or interest, with respect to the applicable
debt securities have been cured or waived as provided in the
indenture.
Each
indenture also will provide that the holders of not less than a majority in
principal amount of the applicable outstanding debt securities of any series may
waive any past default with respect to those debt securities and its
consequences, except a default consisting of:
(1) our
failure to pay the principal of, and any premium, Make-Whole Amount, interest or
Additional Amounts on, any debt security; or
(2) a
default relating to a covenant or provision contained in the applicable
indenture that cannot be modified or amended without the consent of the holders
of each outstanding debt security affected by the default.
The
trustee generally will be required to give notice to the holders of the debt
securities of each affected series within 90 days of a default of which the
trustee has actual knowledge under the indenture unless the default has been
cured or waived. The trustee may withhold a notice of default unless the default
relates to:
(1) our
failure to pay the principal of, or any premium, Make-Whole Amount, interest or
Additional Amounts on, a debt security of that series; or
(2) any
sinking fund installment for any debt security of that series, if the
responsible officers of the trustee consider it to be in the interest of the
holders.
Each
indenture will provide that no holder of debt securities of any series may
institute a proceeding with respect to the indenture or for any remedy under the
indenture, unless the applicable trustee fails to act, for 60 days, after
(1) it has received a written request to institute proceedings in respect
of an event of default from the holders of not less than 25% in principal amount
of the outstanding debt securities of the series, as well as an offer of
indemnity reasonably satisfactory to the trustee and (2) no direction
inconsistent with such written request has been given to the trustee during that
60 day period by the holders of a majority in principal amount of the
outstanding debt securities of the series. This provision will not prevent,
however, any holder of debt securities from instituting suit for the enforcement
of payment of the principal of, and any premium, Make-Whole Amount, interest or
Additional Amounts on, debt securities at their respective due
dates.
Subject
to provisions in each indenture relating to the trustee’s duties in case of
default, the trustee will not be under any obligation to exercise any of its
rights or powers under any indenture at the request or direction of any holders
of any series of debt securities then outstanding, unless the holders have
offered to the trustee security or indemnity satisfactory to it. Subject to
these provisions for the indemnification of the trustee, the holders of not less
than a majority in principal amount of the applicable outstanding debt
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the applicable trustee, or
of exercising any trust or power conferred upon the trustee. However, the
trustee may refuse to follow any direction which is in conflict with any law or
the applicable indenture, which may involve the trustee in personal liability or
which may be unduly prejudicial to the holders of debt securities of the
applicable series not joining in the direction.
Within
120 days after the close of each fiscal year, we must deliver to each
trustee a certificate, signed by one of several specified officers, stating such
officer’s knowledge of our compliance with all the conditions and covenants
under the applicable indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status of the
noncompliance.
Modification
of the Indenture
Modification
and amendment of an indenture may be made only with the consent of the holders
of not less than a majority in principal amount of all outstanding debt
securities issued under the indenture which are affected by the modification or
amendment. However, no modification or amendment may, without the consent of the
holder of each debt security affected, do any of the following:
(1) change
the stated maturity of the principal of, or any premium, Make-Whole Amount,
installment of principal of, interest or Additional Amounts payable on, any debt
security;
(2) reduce
the principal amount of, or the rate or amount of interest on, any premium,
Make-Whole Amount payable on redemption of or any Additional Amounts payable
with respect to, any debt security;
(3) reduce
the amount of principal of an original issue discount security, indexed security
or any Make-Whole Amount that would be due and payable upon declaration of
acceleration of the maturity of an original issue discount security or indexed
security, or would be provable in bankruptcy, or adversely affect any right of
repayment of the holder of any debt security;
(4) change
the place of payment or the currency or currencies of payment of the principal
of, and any premium, Make-Whole Amount, interest or Additional Amounts on, any
debt security;
(5) impair
the right to institute suit for the enforcement of any payment on or with
respect to any debt security;
(6) reduce
the percentage of the holders of outstanding debt securities of any series
necessary to modify or amend the applicable indenture, to waive compliance with
certain provisions thereof or certain defaults and consequences thereunder, or
to reduce the quorum or voting requirements contained in the applicable
indenture;
(7) make
any change that adversely affects the right to convert or exchange any security
or decrease the conversion or exchange rate or increase the conversion or
exchange price of any security; or
(8) modify
any of the foregoing provisions or any of the provisions relating to the waiver
of certain past defaults or certain covenants, except to increase the required
percentage to effect such action or to provide that certain other provisions may
not be modified or waived without the consent of the holder of the debt
security.
We and
the relevant trustee may modify or amend an indenture, without the consent of
any holder of debt securities, for any of the following purposes:
(1) to
evidence the succession of another person to us as obligor under the
indenture;
(2) to
add to the covenants of the Company for the benefit of the holders of all or any
series of debt securities or to surrender any right or power conferred upon us
in the indenture;
(3) to
add events of default for the benefit of the holders of all or any series of
debt securities;
(4) to
add or change any provisions of an indenture to facilitate the issuance of, or
to liberalize certain terms of, debt securities in bearer form, or to permit or
facilitate the issuance of debt securities in uncertificated form, provided that
such action shall not adversely affect the interests of the holders of the debt
securities of any series in any material respect;
(5) to
add, change or eliminate any provisions of an indenture, provided that any such
addition, change or elimination shall
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become
effective only when there are no outstanding debt securities of any series
created prior to the change or elimination which are entitled to the
benefit of the applicable provision;
or
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not
apply to any outstanding debt securities created prior to the change or
elimination;
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(6) to
secure the debt securities;
(7) to
establish the form or terms of debt securities of any series, including the
provisions and procedures, if applicable, for the conversion of the debt
securities into our common stock or other of our securities or
property;
(8) to
provide for the acceptance or appointment of a successor trustee or facilitate
the administration of the trusts under an indenture by more than one
trustee;
(9) to
cure any ambiguity, defect or inconsistency in an indenture, provided that the
action does not adversely affect the interests of holders of debt securities of
any series issued under the indenture;
(10) to
close an indenture with respect to the authentication and delivery of additional
series of debt securities or to qualify, or maintain qualification of, an
indenture under the Trust Indenture Act;
(11) to
supplement any of the provisions of an indenture to the extent necessary to
permit or facilitate defeasance and discharge of any series of the debt
securities; provided that, in each case above, the action does not adversely
affect the interests of the holders of the debt securities of any series in any
material respect; or
(12) to
make any provisions with respect to the conversion or exchange rights of the
holders of any debt securities, including providing for the conversion or
exchange of any debt securities into any of our securities or
property.
Subordination
Unless
stated otherwise in the applicable prospectus supplement for a particular series
of subordinated debt securities, or as described below, the following
subordinated indenture provisions will apply to the subordinated debt
securities.
The
subordinated debt securities will be unsecured and subordinated in right of
payment to all of our existing and future secured and senior debt. As a result,
upon any distribution to our creditors in a liquidation, dissolution,
bankruptcy, insolvency or reorganization, the payment of the principal of and
interest on the subordinated debt securities will be subordinated to the extent
provided in the subordinated indentures in right of payment to the prior payment
in full of all our senior debt and our secured debt. Our obligation to make
payments of the principal of and interest on the subordinated debt securities
will not otherwise be affected.
We may
not make payments of principal or interest on the subordinated debt securities
at any time we are in default on any payment with respect to our senior debt, or
we have defaulted on any of our senior debt resulting in the acceleration of the
maturity of the senior debt, or if there is a judicial proceeding pending with
respect to our default on our senior debt, and we have received notice of the
default. We may resume payments on the subordinated debt securities when the
default is cured or waived if the subordination provisions of the subordinated
indenture will permit us to do so at that time. After we have paid all of our
senior debt in full, holders of subordinated debt securities will still be
subrogated to the rights of holders of our senior debt for the amount of
distributions otherwise payable to holders of the subordinated debt securities
until the subordinated debt securities are paid in full.
If
payment or distribution on account of the subordinated debt securities of any
character or security, whether in cash, securities or other property, is
received by a holder of any subordinated debt securities, including any
applicable trustee, in contravention of any of the terms of the applicable
indenture and before all our senior debt has been paid in full, that payment or
distribution or security will be received in trust for the benefit of, and must
be paid over or delivered and transferred to, holders of our senior debt at the
time outstanding in accordance with the priorities then existing among those
holders for application to the payment of all senior debt remaining unpaid to
the extent necessary to pay all senior debt in full.
Upon
payment or distribution of assets to creditors upon insolvency, bankruptcy,
receivership, reorganization, marshalling of assets and liabilities or similar
proceedings or any liquidation, dissolution or winding up of or relating to our
company as a whole, whether voluntary or involuntary, the holders of all senior
debt securities will first be entitled to receive payment in full before holders
of the outstanding subordinated debt securities will be entitled to receive any
payment in respect of the principal of, premium, if any, or interest on the
outstanding subordinated debt securities.
After we
have paid in full all sums we owe on our senior debt, the holders of the
subordinated debt securities, if so issued, together with the holders of our
obligations ranking on a parity with the subordinated debt securities, will be
entitled to be paid from our remaining assets the amounts at the time due and
owing on the subordinated debt securities and the other obligations. We will
make payment on subordinated debt securities before we make any payment or other
distribution, whether in cash, property or otherwise, on account of any capital
stock or obligations ranking junior to subordinated debt
securities.
By reason
of this subordination, if we become insolvent, holders of senior debt, as well
as certain of our general creditors, may receive more, and holders of
subordinated debt securities may receive less, than our other creditors,
including holders of any of our senior debt securities. This subordination will
not prevent the occurrence of any event of default on the subordinated debt
securities.
The
subordinated indenture will define senior debt as the principal, premium, if
any, unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to us whether or not a
claim for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts
payable under or in respect of the types of debt generally described
below:
(1) debt
for money we have borrowed;
(2) debt
evidenced by a bond, note, debenture, or similar instrument (including purchase
money obligations) whether or not given in connection with the acquisition of
any business, property or assets, whether by purchase, merger, consolidation or
otherwise, but not any account payable or other obligation created or assumed in
the ordinary course of business in connection with the obtaining of materials or
services;
(3) debt
which is a direct or indirect obligation which arises as a result of banker’s
acceptances or bank letters of credit issued for our account;
(4) debt
secured by any mortgage, pledge, lien, charge, encumbrance or any security
interest existing on our property;
(5) our
obligation as lessee under any lease of property which is reflected on our
balance sheet as a capitalized lease;
(6) any
deferral, amendment, renewal, extension, supplement, modification or refunding
of any liability of the kind described in any of the preceding paragraphs
(1) through (5);
(7) our
obligations to make payments under the terms of financial instruments such as
securities contracts and foreign currency exchange contracts, derivative
instruments and other similar financial instruments; and
(8) every
obligation or debt of the kind described in the preceding paragraphs
(1) through (7) of another person and all dividends of another person
the payment of which, in either case, we have guaranteed or for which we are
responsible or liable, directly or indirectly, as obligor or otherwise;
and
provided,
however, that, in computing our debt, any particular debt will be excluded
if:
(1) upon
or prior to the maturity thereof, we have deposited in trust with a depositary,
money (or evidence of indebtedness if permitted by the instrument creating such
indebtedness) in the necessary amount to pay, redeem or satisfy that debt as it
becomes due, and the amount so deposited will not be included in any computation
of our assets; and
(2) we
have delivered an officers’ certificate to the trustee that certifies that we
have deposited in trust with the depositary the sufficient amount.
Senior
debt will exclude the following:
(1) any
debt referred to in paragraphs (1) through (5) above as to which, in
the instrument creating or evidencing the debt or under which the debt is
outstanding, it is provided that the debt is not superior in right of payment to
our subordinated debt securities, or ranks equal with the subordinated debt
securities;
(2) our
subordinated debt securities;
(3) any
debt of ours which when incurred and without respect to any election under
Section 1111(b) of the United States Bankruptcy Code of 1978, as amended, was
without recourse to us;
(4) any
debt of ours for wages payable to our executive officers and
directors;
(5) any
debt to any employee of ours; and
(6) all
other indebtedness of ours sold to any of our subsidiaries, including any
limited liability companies, partnerships or trusts established or to be
established by us, in each case where the subsidiary is a financing entity of
ours in connection with the issuance by such financing entity of securities that
are similar to the debt securities.
There
will be no limit on the amount of senior debt or other debt that we may incur in
the subordinated indentures.
Discharge, Defeasance and Covenant
Defeasance
Unless
stated otherwise in the applicable prospectus supplement, and, unless the terms
of a series of debt securities provides otherwise, under each indenture, we may
discharge our obligations to holders of any series of debt securities that have
not already been delivered to the applicable trustee for cancellation and that
either have become due and payable or will become due and payable within one
year (or are scheduled for redemption within one year). We can discharge these
obligations by irrevocably depositing with the applicable trustee funds in such
currency or currencies in which the debt securities are payable in an amount
sufficient to pay the entire indebtedness on the debt securities including the
principal of, and any premium, Make-Whole Amount, interest or Additional Amounts
payable on, the debt securities to the date of the deposit, if the debt
securities have become due and payable or to the stated maturity or redemption
date, as the case may be.
In
addition, if the terms of the debt securities of a series permit us to do so, we
may elect either of the following:
(1) to be
defeased and be discharged from any and all obligations with respect to the debt
securities of that series, except our obligations to:
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pay
any Additional Amounts upon the occurrence of certain tax and other
events,
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register
the transfer or exchange of the debt
securities,
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replace
temporary or mutilated, destroyed, lost or stolen debt
securities,
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maintain
an office or agency for the debt securities,
and
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to
hold moneys for payment in trust;
or
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(2) to
be defeased and discharged from our obligations with respect to the debt
securities of that series described under “— Certain Covenants of the Debt
Securities” or, if the terms of the debt securities of that series permit, our
obligations with respect to any other covenant.
If we
choose to defease and discharge our obligations under the covenants, any failure
to comply with the obligations imposed on us by the covenants will not
constitute a default or an event of default with respect to the debt securities
of that series. However, to make either election we must irrevocably deposit
with the applicable trustee, in trust, an amount, in the currency or currencies
in which the debt securities are payable, or in government obligations, or both,
that will provide sufficient funds to pay the principal of, and any premium,
Make-Whole Amount, interest or Additional Amounts on, the debt securities, and
any mandatory sinking fund or analogous payments on the debt securities, on the
relevant scheduled due dates or upon redemption.
We may
defease and discharge our obligations as described in the preceding paragraphs
only if, among other things:
(1) we
have delivered to the applicable trustee an opinion of counsel to the effect
that the holders of the debt securities will not recognize income, gain or loss
for United States federal income tax purposes as a result of the defeasance or
covenant defeasance described in the previous paragraphs and will be subject to
United States federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if the defeasance or covenant
defeasance had not occurred. In the case of defeasance the opinion of counsel
must refer to and be based upon a ruling of the Internal Revenue Service or a
change in applicable United States federal income tax laws occurring after the
date of the indenture;
(2) any
defeasance does not result in, or constitute, a breach or violation of an
indenture or any other material agreement which we are a party to or obligated
under; and
(3) no
event of default, or event that with notice will be an event of default, has
occurred and is continuing with respect to any securities subject to a
defeasance.
Unless
otherwise provided in the applicable prospectus supplement, if, after we have
deposited funds and/or government obligations to effect defeasance or covenant
defeasance with respect to debt securities of any series:
(1) the
holder of a debt security of that series elects to receive payment in a currency
in which the deposit was made in respect of the debt security; or
(2) a
conversion event (as defined below) occurs in respect of the currency in which
the deposit was made;
the
indebtedness represented by the debt security shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of,
and any premium, Make-Whole Amount, interest or Additional Amounts on, the debt
security, as they become due, out of the proceeds yielded by converting the
amount so deposited in respect of the debt security into the currency in which
the debt security becomes payable as a result of the election or such cessation
of usage based on the applicable market exchange rate.
Unless
stated otherwise in the applicable prospectus supplement, “conversion event”
means the cessation of use of:
(1) a
currency, currency unit or composite currency issued by the government of one or
more countries other than the United States both by the government of the
country that issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community; or
(2) any
currency unit or composite currency for the purposes for which it was
established.
Unless
stated otherwise in the applicable prospectus supplement, all payments of
principal of, and any premium, Make-Whole Amount, interest or Additional Amounts
on, any debt security that is payable in a foreign currency that ceases to be
used by its government of issuance will be made in United States
dollars.
In the
event we effect covenant defeasance with respect to any series of debt
securities and the debt securities are declared due and payable because of the
occurrence of any event of default other than:
(1) the
event of default described in clause (4) of the first paragraph under “—
Events of Default, Notice and Waiver,” which would no longer be applicable to
the debt securities of that series; or
(2) the
event of default described in clause (7) under “— Events of Default, Notice
and Waiver” with respect to a covenant as to which there has been covenant
defeasance;
then the
amount on deposit with the trustee will still be sufficient to pay amounts due
on the debt securities at the time of their stated maturity but may not be
sufficient to pay amounts due on the debt securities at the time of the
acceleration resulting from the event of default. In this case, we would remain
liable to make payment of such amounts due at the time of
acceleration.
The
applicable prospectus supplement may describe further provisions, if any,
permitting defeasance or covenant defeasance, including any modifications to the
provisions described above, with respect to a particular series of debt
securities.
Conversion
and Exchange Rights
The terms
on which debt securities of any series are convertible into or exchangeable for
our common stock or other securities or property of ours will be set forth in
the applicable prospectus supplement. These terms will include:
(1) the
conversion or exchange price, or manner for calculating a price;
(2) the
exchange or conversion period; and
(3) whether
the conversion or exchange is mandatory, at the option of the holder, or at our
option.
The terms
may also include calculations pursuant to which the number of shares of our
common stock or other securities or property to be received by the holders of
debt securities would be determined according to the market price of our common
stock or other securities or property of ours as of a time stated in the
prospectus supplement.
The
conversion exchange price of any debt securities of any series that is
convertible into our common stock may be adjusted for any stock dividends, stock
splits, reclassification, combinations or similar transactions, as described in
the applicable prospectus supplement.
Governing Law
The
indentures will be governed by and will be construed in accordance with the laws
of the state of New York.
Redemption of Debt
Securities
If so
specified in the applicable prospectus supplement, debt securities of any series
may be wholly or partially redeemed at our option, at any time. The debt
securities may also be subject to optional or mandatory redemption on terms and
conditions described in the applicable prospectus supplement.
From and
after notice has been given as provided in the indenture, if funds for the
redemption of any debt securities called for redemption have been made available
on the redemption date, the debt securities will cease to bear interest on the
date fixed for the redemption specified in the notice, and the only right of the
holders of the debt securities will be to receive payment of the redemption
price.
DESCRIPTION
OF COMMON STOCK
The
following summary of the terms of our common stock, including our Articles of
Incorporation and Bylaws, may not be complete and is subject to, and qualified
in its entirety by reference to, the terms and provisions of our Articles of
Incorporation and Bylaws. You should refer to, and read this summary together
with, our Articles of Incorporation and Bylaws to review all of the terms of our
common stock that may be important to you.
Our
authorized common stock consists of 20,000,000 shares, $1.00 par value per share
("Common Stock"). As of the date of this prospectus, 5,932,346 shares
of Common Stock were issued and outstanding. All of such outstanding
shares of Common Stock are validly issued, fully paid and
nonassessable. Holders of record of Common Stock will be entitled to
receive dividends when and if declared by our Board of Directors out of our
funds legally available therefor. In the event of any liquidation,
dissolution or winding up of our affairs, whether voluntary or otherwise, after
payment or provision for payment of our debts and other liabilities, including
the liquidation preference of all classes of our preferred stock, if any, each
holder of Common Stock will be entitled to receive such holder's pro rata
portion of our remaining net assets, if any. Each share of Common
Stock has one vote, and there are no preemptive, subscription, conversion or
redemption rights. Shares of Common Stock do not have cumulative
voting rights, which means that the holders of a majority of the shares of
Common Stock voting for the election of directors can elect all of the
directors. Our common stock is listed on the NASDAQ Global Select
Market under the symbol “SAVB.”
Our
Articles of Incorporation authorize the issuance of up to 10,000,000 shares of
preferred stock, $1.00 par value per share ("Preferred Stock"). As of
the date of this prospectus, no shares of Preferred Stock were
outstanding. The Preferred Stock constitutes what is commonly
referred to as "blank check" preferred stock. "Blank check" preferred
stock allows our Board of Directors, from time to time, to divide the Preferred
Stock into series, to designate each series, to cause us to issue shares of any
series, and to fix and determine separately for each series their relative
rights, preferences and privileges. Dividends on shares of Preferred
Stock, when and as declared by the Board of Directors out of any funds legally
available therefor, may be cumulative and may have a preference over Common
Stock as to the payment of such dividends. The provisions of a
particular series, as designated by the Board of Directors, may, among other
things, include restrictions on our ability to purchase shares of Common Stock
or to redeem a particular series of Preferred Stock. Depending upon
the voting rights granted to any series of Preferred Stock, issuance thereof
could result in a reduction in the power of the holders of Common
Stock. In the event of our dissolution, liquidation or winding up,
whether voluntary or involuntary, the holders of each series of the then
outstanding Preferred Stock may be entitled to receive, prior to the
distribution of any assets or funds to the holders of the Common Stock, a
liquidation preference established by the Board of Directors, together with all
accumulated and unpaid dividends. Depending upon the consideration
paid for Preferred Stock, the liquidation preference of Preferred Stock and
other matters, the issuance of Preferred Stock could result in a reduction in
the assets available for distribution to the holders of the Common Stock in the
event of our liquidation. Holders of Preferred Stock will not have
preemptive rights provided for by law to acquire any additional securities
issued by the Company. Once a series has been designated and shares
of the series are outstanding, the rights of holders of that series may not be
modified adversely except by a vote of at least a majority of the outstanding
shares constituting such series.
One of
the effects of the existence of authorized but unissued shares of Common Stock
or Preferred Stock may be to enable our Board of Directors to render it more
difficult or to discourage an attempt to obtain control of us by means of a
merger, tender offer at a control premium price, proxy contest or otherwise and
thereby protect the continuity of or entrench our management, which may have a
potentially adverse effect on the market price of the Common
Stock. If in the due exercise of its fiduciary obligations, for
example, the Board of Directors were to determine that a takeover proposal was
not in our best interests, the Board of Directors could cause such shares to be
issued without stockholder approval in one or more private placements or other
transactions that might prevent or render more difficult or make more costly the
completion of any attempted takeover transaction by diluting voting or other
rights of the proposed acquirer or insurgent stockholder group, by creating a
substantial voting block in institutional or other hands that might support the
position of the incumbent Board of Directors, by effecting an acquisition that
might complicate or preclude the takeover, or otherwise.
DESCRIPTION
OF WARRANTS
We may
issue warrants to purchase common stock or preferred stock or other securities.
We may issue warrants independently or together with other securities. Warrants
sold with other securities may be attached to or separate from the other
securities. We will issue warrants, if any, under one or more warrant agreements
between us and a warrant agent that we will name in the prospectus
supplement.
The
prospectus supplement relating to any warrants we offer will include specific
terms relating to the offering, including, among others, the aggregate number of
warrants offered, the exercise price of the warrants, the dates or periods
during which the warrants are exercisable and any other specific terms of the
warrants.
The
description in the applicable prospectus supplement and other offering material
of any warrants we offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable warrant agreement, which will be
filed with the SEC if we offer warrants. For more information on how you can
obtain copies of the applicable warrant agreement if we offer warrants, see
“Incorporation of Certain Information By Reference.” We urge you to read the
applicable warrant agreement and the applicable prospectus supplement and any
other offering material in their entirety.
We may
issue rights to purchase common stock or preferred stock or other securities. We
may issue rights independently or together with other securities. Rights sold
with other securities may be attached to or separate from the other
securities.
The
prospectus supplement relating to any rights we offer will include specific
terms relating to the offering, including, among others, the aggregate number of
rights offered, the exercise price of the rights, the dates or periods during
which the rights are exercisable and any other specific terms of the
rights.
The
description in the applicable prospectus supplement and other offering material
of any rights we offer will not necessarily be complete and will be qualified in
its entirety by reference to the applicable form of rights, which will be filed
with the SEC if we offer rights. For more information on how you can obtain
copies of the applicable subscription rights agreement if we offer rights, see
“Incorporation of Certain Information By Reference.” We urge you to read the
applicable form of rights and the applicable prospectus supplement and any other
offering material in their entirety.
The
securities offered by means of this prospectus may be issued in whole or in part
in book-entry form, meaning that beneficial owners of the securities will not
receive certificates representing their ownership interests in the securities,
except in the event the book-entry system for the securities is discontinued.
Securities issued in book-entry form will be evidenced by one or more global
securities that will be deposited with, or on behalf of, a depository identified
in the applicable prospectus supplement relating to the securities. The
Depository Trust Company is expected to serve as depository. Unless and
until it is exchanged in whole or in part for the individual securities
represented thereby, a global security may not be transferred except as a whole
by the depository for the global security to a nominee of such depository or by
a nominee of such depository to such depository or another nominee of such
depository or by the depository or any nominee of such depository to a successor
depository or a nominee of such successor. Global securities may be issued in
either registered or bearer form and in either temporary or permanent form. The
specific terms of the depository arrangement with respect to a class or series
of securities that differ from the terms described here will be described in the
applicable prospectus supplement.
Unless
otherwise indicated in the applicable prospectus supplement, we anticipate that
the following provisions will apply to depository arrangements.
Upon the
issuance of a global security, the depository for the global security or its
nominee will credit on its book-entry registration and transfer system the
respective principal amounts of the individual securities represented by such
global security to the accounts of persons that have accounts with such
depository, who are called “participants.” Such accounts will be designated by
the underwriters, dealers or agents with respect to the securities or by us if
we directly offer and sell the securities. Ownership of global securities will
be limited to the depository’s participants or persons that may hold interests
through such participants. Ownership of global securities will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the applicable depository or its nominee (with respect to ownership interests
of participants) and records of the participants (with respect to ownership
interests of persons who hold through participants). The laws of some states
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limits and laws may impair the ability to
own, pledge or transfer beneficial interest in a global security.
So long
as the depository for a global security or its nominee is the registered owner
of such global security, such depository or nominee, as the case may be, will be
considered the sole owner or holder of the securities represented by such global
security for all purposes under the applicable instrument defining the rights of
a holder of the securities. Except as provided below or in the applicable
prospectus supplement, owners of global securities will not:
·
|
be
entitled to have any of the individual securities of the series
represented by such global security registered in their
names;
|
·
|
receive
or be entitled to receive physical delivery of any such securities in
definitive form; and
|
·
|
be
considered the owners or holders thereof under the applicable instrument
defining the rights of the holders of the
securities.
|
Payments
of amounts payable with respect to individual securities represented by a global
security registered in the name of a depository or its nominee will be made to
the depository or its nominee, as the case may be, as the registered owner of
the global security representing such securities. None of us, our officers and
directors or any paying agent or security registrar for an individual series of
securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the global security for such securities or for maintaining,
supervising or reviewing any records relating to such ownership
interests.
We expect
that the depository for a series of securities offered by means of this
prospectus or its nominee, upon receipt of any payment of dividend or other
amount in respect of a permanent global security representing any of such
securities, will immediately credit its participants’ accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of global securities for such securities as shown on the records of such
depository or its nominee. We also expect that payments by participants to
owners of such global security held through such participants will be governed
by standing instructions and customary practices, as is the case with securities
held for the account of customers in bearer form or registered in “street name.”
Such payments will be the responsibility of such participants.
If a
depository for a series of securities is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by us within 90 days, we will issue individual securities of such series in
exchange for the global security representing such series of securities. In
addition, we may, at any time and in our sole discretion, subject to any
limitations described in the applicable prospectus supplement relating to such
securities, determine not to have any securities of such series represented by
one or more global securities and, in such event, will issue individual
securities of such series in exchange for the global security or securities
representing such series of securities.
The
information in this section concerning the depository and its book-entry systems
has been obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy thereof.
RATIO
OF EARNINGS TO FIXED CHARGES
The
Company’s consolidated ratios of earnings to fixed charges for each of the five
fiscal years ended December 31, 2008 and the nine months ended September
30, 2009 are as follows:
|
|
|
Years
Ended December 31,
|
|
|
9
Months Ended
September
30, 2009
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
2004
|
|
Ratio
of Earnings to Fixed Charges (unaudited) (1):
Excluding
deposit interest
Including
deposit interest
|
0.96
1.00
|
|
3.98
1.37
|
|
3.79
1.39
|
|
5.08
1.66
|
|
6.52
1.93
|
|
4.98
2.00
|
|
(1)
|
Earnings
are defined as the sum of earnings before income taxes, fixed charges and
amortization of capitalized interest less capitalized interest. Fixed
charges are defined as interest expensed and capitalized plus interest
within rent expense, which is estimated to be one-third of rent
expense.
|
USE
OF PROCEEDS
Unless
otherwise specified in the applicable prospectus supplement, we intend to use
the net proceeds from the sale of securities for general corporate
purposes.
PLAN
OF DISTRIBUTION
We may
sell the securities being offered hereby in one or more of the following ways
from time to time:
·
|
to
underwriters or dealers for resale to the public or to institutional
investors;
|
·
|
directly
to institutional investors;
|
·
|
directly
to a limited number of purchasers or to a single
purchaser;
|
·
|
through
agents to the public or to institutional investors;
or
|
·
|
through
a combination of any of these methods of
sale.
|
If we use
underwriters or dealers in the sale, the securities will be acquired by the
underwriters or dealers for their own account and may be resold from time to
time in one or more transactions, including:
·
|
at
a fixed price or prices, which may be changed from time to
time;
|
·
|
in
“at the market offerings” within the meaning of the SEC’s
Rule 415(a)(4);
|
·
|
at
prices related to such prevailing market prices;
or
|
For each
series of securities, the prospectus supplement will set forth the terms of the
offering of the securities, including:
·
|
the
initial public offering price;
|
·
|
the
method of distribution, including the names of any underwriters, dealers
or agents;
|
·
|
the
purchase price of the securities;
|
·
|
our
net proceeds from the sale of the
securities;
|
·
|
any
underwriting discounts, agency fees, or other compensation payable to
underwriters or agents;
|
·
|
any
discounts or concessions allowed or reallowed or repaid to dealers;
and
|
·
|
the
securities exchanges on which the securities will be listed, if
any.
|
If we use
underwriters in the sale, they will buy the securities for their own account.
The underwriters may then resell the securities in one or more transactions at a
fixed public offering price or at varying prices determined at the time of sale
or thereafter. The obligations of the underwriters to purchase the securities
will be subject to certain conditions. The underwriters will be obligated to
purchase all the securities offered if they purchase any securities. Any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers may be changed from time to time. In connection with an
offering, underwriters and selling group members and their affiliates may engage
in transactions to stabilize, maintain or otherwise affect the market price of
the securities in accordance with applicable law.
If we use
dealers in the sale, we will sell securities to such dealers as principals. The
dealers may then resell the securities to the public at varying prices to be
determined by such dealers at the time of resale. If we use agents in the sale,
they will use their reasonable best efforts to solicit purchases for the period
of their appointment. If we sell directly, no underwriters or agents would be
involved. We are not making an offer of securities in any jurisdiction that does
not permit such an offer.
Underwriters,
dealers and agents that participate in the securities distribution may be deemed
to be underwriters as defined in the Securities Act of 1933, as amended, or the
“Securities Act.” Any discounts, commissions or profit they receive when they
resell the securities may be treated as underwriting discounts and commissions
under the Securities Act. We may have agreements with underwriters, dealers and
agents to indemnify them against certain civil liabilities, including certain
liabilities under the Securities Act, or to contribute with respect to payments
that they may be required to make. Underwriters, dealers and agents may engage
in transactions with, or perform services for, us or our subsidiaries in the
ordinary course of their business.
Any debt
securities that we sell will be new issues of securities with no established
trading market, and unless otherwise specified in the applicable prospectus
supplement, we will not list any series of such securities on any exchange. It
has not presently been established whether the underwriters, if any, of any of
the securities will make a market in the securities. If the underwriters make a
market in the securities, such market making may be discontinued at any time
without notice. No assurance can be given as to the liquidity of the
trading market for the securities.
VALIDITY
OF THE SECURITIES
Alston
& Bird LLP, Atlanta, Georgia will pass upon the validity of any securities
we offer by this prospectus and any prospectus supplement. If the validity of
any securities is also passed upon by counsel for underwriters participating in
an offering of securities offered by this prospectus and any prospectus
supplement, the underwriters’ counsel will be named in the applicable prospectus
supplement.
EXPERTS
The
consolidated financial statements of The Savannah Bancorp, Inc. and subsidiaries
as of December 31, 2008 and 2007, and for each of the years in the two-year
period ended December 31, 2008, and management’s assessment of the effectiveness
of internal control over financial reporting as of December 31, 2008, have been
incorporated by reference herein in reliance upon the reports of Mauldin &
Jenkins, LLC, an independent registered public accounting firm and upon the
authority of said firm as an expert in accounting and auditing. The
consolidated statements of income, shareholders' equity and cash
flows for the year ended December 31, 2006 incorporated by reference in
this prospectus and in the registration statement have been so incorporated in
reliance upon the report of BDO Seidman, LLP, an independent registered public
accounting firm, incorporated herein by reference, and upon the authority of
said firm as an expert in accounting and auditing.
PART
II
Information
Not Required in Prospectus
Item 14.
Other Expenses of
Issuance and Distribution
The
following is a statement of the expenses (all of which are estimated) we expect
to incur in connection with the issuance and distribution of the securities
registered under this registration statement, other than underwriting discounts
and commissions:
|
Amount
to be paid
|
SEC
registration fee
|
$ 669.60
|
Legal
fees and expenses
|
**
|
Accounting
fees and expenses
|
**
|
Printing
fees
|
**
|
Trustee’s
fees and expenses
|
**
|
Miscellaneous
|
**
|
|
|
Total
(without SEC registration fee)
|
$
**
|
**
Estimates of these fees and expenses are not presently
known. Estimates of the fees and expenses in connection with the sale
and distribution of the securities being offered will be included in the
applicable prospectus supplement.
Item 15.
Indemnification of
Directors and Officers
Sections
14-2-850 through 14-2-859 of the Georgia Business Corporation Code (the “GBCC”)
set forth provisions pertaining to the indemnification of and insurance for
directors and officers of a corporation. The Georgia Business Corporation Code
provides for the mandatory indemnification of a director, against reasonable
expenses incurred by the director in connection with a proceeding, where a
director is wholly successful in the defense of the proceeding and where the
proceeding is one to which he or she was a party because he or she was a
director of the corporation. The GBCC grants the Company the power to indemnify
its directors and officers against liability for certain of their
acts.
The
Company's Articles of Incorporation generally provide that any director will be
indemnified against liability to the Company or its shareholders for monetary
damages for breach of the duty of care as a director or officer; provided,
however, that the Company will not indemnify any director for any liability or
expenses incurred by such director (i) for any appropriation, in violation of
his duties, of any business opportunity of the Company; (ii) for any acts or
omissions which involve intentional misconduct or a knowing violation of law;
(iii) for the types of liability set forth in Section 14-2-832 of the GBCC; or
(iv) for any transaction from which the director derives an improper personal
benefit. The Company’s Articles of Incorporation further provide that,
notwithstanding the foregoing, the liability of a director or officer shall be
eliminated or limited to the fullest extent permitted by the GBCC.
The Company’s Bylaws provide that
expenses incurred by any persons who are, were, or are threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
whether formal or informal, by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or was serving at the request of the
Company as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, may be paid by the
Company in advance of the final disposition of such action, suit or proceeding
as authorized by the Board of Directors upon an undertaking by or on behalf of
the director, officer, employee or agent to repay such amount if it is
ultimately determined he is not entitled to be indemnified by the
Company.
Item 16.
Exhibits
Exhibit
No.
|
|
Description
|
|
Incorporated
by Reference to Filings Indicated
|
|
|
|
|
|
1.1
|
|
Form
of Underwriting Agreement
|
|
*
|
|
|
|
|
|
4.1
|
|
See
Articles V, VI, VII, VIII, IX and X of the Articles of Incorporation of
the Company.
|
|
Exhibit
3.1 in the Company’s Registration Statement (Registration No. 33-33405)
filed in February 1990.
|
|
|
|
|
|
4.2
|
|
See
Articles II, III and VIII of the Bylaws of the Company.
|
|
Exhibit
4.2 in the Company’s Registration Statement (Registration No. 333-128724)
filed in September 2005.
|
|
|
|
|
|
4.3
|
|
Form
of Senior Note Indenture
|
|
**
|
|
|
|
|
|
4.4
|
|
Form
of Subordinated Note Indenture
|
|
**
|
|
|
|
|
|
4.5
|
|
Specimen
of Preferred Stock Certificate and Form of Designation of Preferred
Stock
|
|
*
|
|
|
|
|
|
4.6
|
|
Form
of Senior Note
|
|
*
|
|
|
|
|
|
4.7
|
|
Form
of Subordinated Note
|
|
*
|
|
|
|
|
|
4.8
|
|
Form
of Warrant
|
|
*
|
|
|
|
|
|
4.9
|
|
Form
of Right
|
|
*
|
|
|
|
|
|
5.1
|
|
Opinion
of Alston & Bird LLP
|
|
**
|
|
|
|
|
|
12.1
|
|
Statement
regarding computation of earnings to fixed charges
|
|
**
|
|
|
|
|
|
23.1
|
|
Consent
of Mauldin & Jenkins, LLC
|
|
**
|
|
|
|
|
|
23.2
|
|
Consent
of BDO Seidman, LLP
|
|
**
|
|
|
|
|
|
23.3
|
|
Consent
of Alston & Bird LLP (included in Exhibit 5.1)
|
|
|
|
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page).
|
|
|
|
|
|
|
|
*
To be filed by amendment to the
registration statement or as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
**
Filed herewith.
Item 17.
Undertakings
|
The
undersigned Registrant hereby
undertakes:
|
To file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 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 the registration statement or any material change to
such information in the registration statement;
provided, however,
that
paragraphs (i), (ii) and (iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the SEC by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
That, for
the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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.
That, for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however,
that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
That, for
the purpose of determining liability of the Registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities, the
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by 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.
That, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering
thereof.
To file
an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the SEC under
Section 305(b)(2) of the Trust Indenture Act.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of each Registrant
pursuant to the foregoing provisions, or otherwise, each Registrant has been
advised that in the opinion of the SEC 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 a Registrant of expenses incurred or paid
by a director, officer or controlling person of a 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, that
the Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized in the City of
Savannah, State of Georgia, on November 17, 2009.
|
|
|
THE
SAVANNAH BANCORP, INC.
|
|
|
|
By:
/s/ John C. Helmken
II
|
|
John
C. Helmken II
President
and Chief Executive Officer
|
POWER
OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints
John C. Helmken II, 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 any and all
amendments (including post-effective amendments) to this registration statement
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Commission, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as they might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities on November 17,
2009.
Signatures
|
Title
|
Signatures
|
Title
|
John
C. Helmken II
|
President,
Chief Executive Officer
(Principal Executive
Officer
)
and
Director
|
/s/
Michael W. Harden, Jr.
Michael
W. Harden, Jr.
|
Chief
Financial Officer
(Principal
Financial
and
Accounting Officer)
|
J.
Wiley Ellis
|
Chairman
of the Board and Director
|
L.
Carlton Gill
|
Director
|
Francis
A. Brown
|
Director
|
Aaron
M. Levy
|
Director
|
E.
James Burnsed
|
Vice
Chairman and Director
|
J.
Curtis Lewis III
|
Director
|
Russell
W. Carpenter
|
Director
|
M.
Lane Morrison
|
Director
|
Clifford
H. Dales
|
Director
|
J.
Toby Roberts, Sr.
|
Director
|
/s/
Robert H. Demere, Jr.
Robert
H. Demere, Jr.
|
Director
|
James
W. Royal, Sr.
|
Director
|
/s/
Berryman W. Edwards, Jr.
Berryman
W. Edwards, Jr.
|
Director
|
/s/
Robert T. Thompson, Jr.
Robert
T. Thompson, Jr.
|
Director
|
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