As filed with the Office of the Securities
and Exchange Commission on December 3, 2020
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________
SILVERGATE
CAPITAL CORPORATION
(Exact Name of Registrant as Specified
in Its Charter)
Maryland
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33-0227337
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(State or Other Jurisdiction of Incorporation or
Organization
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(I.R.S. Employer Identification Number)
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4250 Executive Square, Suite 300,
La Jolla, California 92037
(Address of Principal Executive Offices)
___________________________
Alan J. Lane
President and Chief Executive Officer
Silvergate Capital Corporation
4250 Executive Square, Suite 300,
La Jolla, California 92037
(858) 362-6300
(Name, Address and Telephone Number
of Agent for Service)
___________________________
Copies to:
Kevin M. Houlihan, Esq.
William H. Levay, Esq.
Holland & Knight LLP
800 17th Street, NW
Suite 1100
Washington, DC 20006
(202) 469-5269
___________________________
Approximate date of commencement of proposed
sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with 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. o
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definition
of “large accelerated filer”, “accelerated filer”, “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer x
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Smaller reporting company x
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Emerging growth company x
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If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. x
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered
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Amount
to be
registered
(1)
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Proposed
maximum
offering
price
per share
(2)
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Proposed
maximum
aggregate
offering
price (1) (2)
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Amount of
registration fee
(3)
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Class A Common Stock, par value $0.01 per share (4)
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Preferred Stock, par value $.01 per share (4)
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Debt Securities (4) (5)
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Warrants (6)
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Units (7)
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Total
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$
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150,000,000
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$
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150,000,000
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$
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16,365
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(1)
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Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended, or the Securities Act, and exclusive of accrued interest and dividends, if any. The aggregate public offering price of all securities registered hereby will not exceed $150,000,000. Such amount represents the issue price rather than the principal amount of any debt securities issued at an original discount.
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(2)
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The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act.
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(4)
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Such indeterminate number of shares of Class A Common or preferred stock or principal amount of debt securities as may, from time to time, be issued (i) at indeterminate prices, or (ii) upon conversion, redemption, exercise or exchange of securities registered hereunder, to the extent any such securities are, by their terms, convertible into or exchangeable for other securities registered hereunder.
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(5)
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May consist of one or more series of senior or subordinated debt securities.
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(6)
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Warrants will represent rights to purchase Class A Common Stock, preferred stock or debt securities registered hereby. Because the warrants will provide a right only to purchase such securities offered hereunder, no additional registration fee is required.
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(7)
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Such indeterminate number of units, which will be comprised of two or more of the securities registered hereby in any combination.
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The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to Section 8(a), may determine.
The information contained in this preliminary
prospectus is not complete and may be changed. We may not sell these securities or accept your offer to buy any of them until the
documentation filed with the Securities and Exchange Commission relating to these securities has been declared “effective”
by the Securities and Exchange Commission. This preliminary prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any state where the offer or sale is not permitted or legal.
Subject to completion, dated
December 3, 2020
Prospectus
Silvergate Capital Corporation
$150,000,000
Class A Common Stock, Preferred
Stock, Debt Securities, Warrants and Units
We may offer and sell from time to time
in one or more offerings shares of our Class A common stock, shares of our preferred stock, debt securities, and warrants
to purchase shares of our Class A common stock, shares of our preferred stock and/or debt securities, and units comprised
of one or more shares of Class A common stock, shares of preferred stock and warrants in any combination, up to a total public
offering price of $150,000,000. This prospectus provides you with a general description of these securities and the general manner
in which we will offer these securities. Each time we sell securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained
in this prospectus.
You should read both this prospectus and
any prospectus supplement, together with additional information described under the headings “INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE” beginning on page 1 of this prospectus and “WHERE YOU CAN FIND MORE INFORMATION” beginning
on page 2 of this prospectus, before you make your investment decision.
Our Class A common stock is listed
on the New York Stock Exchange under the symbol “SI.”
Investing in our securities involves
certain risks. You should carefully review the risks and uncertainties described under the heading “Risk Factors” beginning
on page 5 of this prospectus, and the risk factors that may be included in a prospectus supplement and in our periodic reports
and other information we file with the Securities and Exchange Commission.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES OFFERED HEREBY WILL BE
EITHER OUR EQUITY SECURITIES OR UNSECURED OBLIGATIONS OF OUR COMPANY AND WILL NOT BE DEPOSITS OR SAVINGS ACCOUNTS OR OTHER OBLIGATIONS
OF ANY BANK OR NON-BANK SUBSIDIARY OF SILVERGATE CAPITAL CORPORATION, AND THEY ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENT AGENCY OR INSTRUMENTALITY.
Our principal executive office is located
at 4250 Executive Square, Suite 300, La Jolla, California 92037 and our telephone number is (858) 362-6300.
This prospectus may not be used to sell
securities unless it is accompanied by a prospectus supplement.
The date of this Prospectus is ,
2020
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 offer and sell, either separately or together, any combination
of the securities described in this prospectus in one or more offerings. We may also issue any of the Class A common stock,
preferred stock, debt securities, warrants or units upon conversion, exchange or exercise of any of the securities mentioned above.
The aggregate amount of securities that we may offer under the registration statement is $150.0 million, denominated in U.S. dollars.
This prospectus provides you with a general
description of the securities we may offer and sell. Each time we offer securities under this prospectus, we will provide a prospectus
supplement that will contain more specific information about the terms of that particular offering. The prospectus supplement may
also add, update or change information contained in this prospectus. You should carefully read both this prospectus, especially
the section entitled “RISK FACTORS” beginning on page 5, and any prospectus supplement before making a decision
to invest in any of the securities. You should also carefully read the additional information described below under the headings
“INCORPORATION OF CERTAIN INFORMATION BY REFERENCE” and “WHERE YOU CAN FIND MORE INFORMATION” before making
a decision to invest in any of the securities.
We have not authorized anyone to provide
you with different information. No dealer, salesperson or other person is authorized to give any information or to represent anything
not contained or incorporated by reference in this prospectus. You must not rely on any unauthorized information or representation.
This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where
it is lawful to do so. You should assume that the information in this prospectus and in any prospectus supplement is accurate only
as of the date on the front of the document and that any information we have incorporated by reference is accurate only as of the
date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any prospectus supplement
or any sale of a security.
The registration statement that contains
this prospectus, including the exhibits to the registration statement, contains additional information about us and the securities
offered under this prospectus. That registration statement can be read at the SEC web site, our website, or at the SEC offices,
which are mentioned in this prospectus under the heading “Where You Can Find More Information.”
Unless otherwise mentioned or unless the
context requires otherwise, all references in this prospectus to “Silvergate,” “the Company,” “the
Corporation,” “we,” “us,” “our” and similar terms refer to Silvergate Capital Corporation
and its wholly owned subsidiary, Silvergate Bank, which we sometimes refer to as “Silvergate Bank,” “the Bank”
or “our Bank,” and references to “common stock” or “Class A common stock” refer to our
Class A voting common stock. References to “Class B common stock” refer to our Class B non-voting common
stock.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
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 the
document. Any reports filed by us with the SEC after the date of this prospectus and before the date that the offering of the securities
by means of this prospectus is terminated 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 and 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):
In addition, all documents that we file
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, after
the initial filing date of the registration statement to which this prospectus relates and prior to the termination of the offering
of the securities to which this prospectus relates will automatically be deemed to be incorporated by reference into this prospectus.
In no event, however, will any of the information that we “furnish” to the SEC under Items 2.02, 7.01 or 8.01 of any
Current Report on Form 8-K from time to time be incorporated by reference into, or otherwise be included in, this prospectus.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed
to be modified or superseded to the extent that a statement contained in this prospectus or in a document subsequently filed modifies
or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
We will promptly provide without charge
to each person to whom this prospectus is delivered a copy of any or all information that has been incorporated herein by reference
(not including exhibits to the information that is incorporated by reference unless such exhibits are specifically incorporated
by reference into such information) upon the written or oral request of such person. Written requests should be directed to: Silvergate
Capital Corporation, Chief Legal Officer, 4250 Executive Square, Suite 300, La Jolla, California 92037. Telephone requests
should be directed to the Chief Legal Officer at (858) 362-6300.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is a part of a registration
statement on Form S-3 filed by us with the SEC under the Securities Act of 1933, as amended, or the Securities Act.
This prospectus does not contain all the
information set forth in the registration statement, certain parts of which are omitted in accordance with the rules and regulations
of the SEC. For further information with respect to us and the securities offered by this prospectus, reference is made to the
registration statement. Statements contained in this prospectus concerning the provisions of such documents are necessarily summaries
of such documents and each such statement is qualified in its entirety by reference to the copy of the applicable document filed
with the SEC.
We file periodic reports, proxy statements
and other information with the SEC. Our filings with the SEC are available to the public over the Internet at the SEC’s website
at http://www.sec.gov. Our filings with the SEC are also available to the public on our website at http://www.silvergate.com, as
well as through document retrieval services. You may read and copy any periodic reports, proxy statements or other information
we file at the SEC’s public reference room in Washington, D.C., located at: Public Reference Room, 100 F Street, N.E., Washington,
D.C. 20549. You can request copies of these documents, upon payment of a duplicating fee, by writing to the SEC. Please call the
SEC at 1-800-SEC-0330 for further information on the operation of the SEC’s public reference rooms.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
Some of the statements contained, or incorporated
by reference, in this prospectus and in any prospectus supplement may include projections, predictions, expectations or statements
as to beliefs or future events or results or refer to other matters that are not historical facts. Such statements constitute “forward-looking
information” within the meaning of The Private Securities Litigation Reform Act of 1995.
These forward-looking statements represent
plans, estimates, objectives, goals, guidelines, expectations, intentions, projections and statements of our beliefs concerning
future events, business plans, expected operating results and the assumptions upon which those statements are based. In some cases,
you can identify these forward-looking statements by words like “may,” “will,” “should,” “expect,”
“plan,” “anticipate,” “intend,” “believe,” “estimate,” “predict,”
“potential,” or “continue” or the negative of those words and other comparable terminology, although not
all forward-looking statements contain these words. Forward-looking statements are not a guarantee of future performance or results,
and will not necessarily be accurate indications of the times at, or by, which such performance or results will be achieved. We
caution that the forward-looking statements are based largely on our expectations and information available at the time the statements
are made and are subject to a number of known and unknown risks and uncertainties that are subject to change based on factors which
are, in many instances, beyond our control. Actual results, performance or achievements could differ materially from those contemplated,
expressed, or implied by the forward-looking statements. You should bear this in mind when reading this prospectus and not place
undue reliance on these forward-looking statements.
The following factors, among others, could
cause our financial performance to differ materially from that expressed in such forward-looking statements:
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the success of the digital currency industry, the development and acceptance of which is subject to a high degree of uncertainty,
as well as the continued evolution of the regulation of this industry and uncertainty of adoption of digital currencies;
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the success of the digital currency initiative and our ability to implement aspects of our growth strategy;
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the concentration of our depositor relationships in the digital currency industry generally and among digital currency exchanges
in particular;
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our ability to grow or sustain our low-cost funding strategy related to the digital currency initiative;
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system failure or cybersecurity breaches of our network security;
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our ability to keep pace with rapid technological changes in the industry or implement new technology effectively;
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our reliance on third-party service providers for core systems support, informational website hosting, internet services, online
account opening and other processing services;
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economic conditions (including interest rate environment, government economic and monetary policies, the strength of global
financial markets and inflation and deflation) that impact the financial services industry and/or our business;
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increased competition in the financial services industry, particularly from regional and national institutions;
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credit risks, including risks related to the significance of commercial real estate loans in our portfolio, our ability to
manage our credit risk effectively and the potential deterioration of the business and economic conditions in our primary market
areas;
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results of examinations of us by our regulators, including the possibility that our regulators may, among other things, require
us to increase our allowance for loan losses or to write-down assets;
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changes in the value of collateral securing our loans;
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our ability to protect our intellectual property and the risks we face with respect to claims and litigation initiated against
us;
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interest rate risk associated with our business, including sensitivity of our interest earning assets and interest bearing
liabilities to interest rates, and the impact to our earnings from changes in interest rates;
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our dependence on our management team and changes in management composition;
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the effectiveness of our internal control over financial reporting and our ability to remediate any future material weakness
in our internal control over financial reporting;
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the sufficiency of our capital, including sources of capital and the extent to which we may be required to raise additional
capital to meet our goals;
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potential exposure to fraud, negligence, computer theft and cyber-crime and other disruptions in our computer systems relating
to our development and use of new technology platforms;
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the adequacy of our risk management framework;
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our involvement from time to time in legal proceedings, examinations and remedial actions by regulators;
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changes in the laws, rules, regulations, interpretations or policies relating to financial institution, accounting, tax, trade,
monetary and fiscal matters;
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the financial soundness of other financial institutions; and
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natural disasters and adverse weather, acts of terrorism, an outbreak of hostilities or other international or domestic calamities,
and other matters beyond our control.
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If one or more of the factors affecting
our forward-looking information and statements proves incorrect, then our actual results, performance or achievements could differ
materially from those expressed in, or implied by, forward-looking information and statements contained in this prospectus and
in the information incorporated by reference herein. Therefore, we caution you not to place undue reliance on our forward-looking
information and statements.
We undertake no obligation to publicly update
forward-looking statements, whether as a result of new information, future events or otherwise. You are advised, however, to consult
any further disclosures we make on related subjects in our periodic and current reports that we file with the SEC. Also note that
we provide cautionary discussion of risks, uncertainties and possibly inaccurate assumptions relevant to our businesses in our
periodic and current reports to the SEC incorporated by reference in this prospectus and in prospectus supplements and other offering
materials. These are factors that, individually or in the aggregate, management believes could cause our actual results to differ
materially from expected and historical results. You should understand that it is not possible to predict or identify all such
factors. Consequently, you should not consider such disclosures to be a complete discussion of all potential risks or uncertainties.
The forward-looking statements speak only
as of the date on which they are made, and, except to the extent required by federal securities laws, we undertake no obligation
to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to
reflect the occurrence of unanticipated events. In addition, we cannot assess the impact of each factor on our business or the
extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any
forward-looking statements.
RISK FACTORS
An investment in our securities involves
a high degree of risk. You should carefully consider the risks and uncertainties and the risk factors set forth in the documents
and reports filed with the SEC that are incorporated by reference into this prospectus, as well as any risks described in any applicable
prospectus supplement, before making an investment decision. Our business, financial condition and/or results of operations could
be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks,
and you may lose all or part of your investment. This prospectus also contains, and any prospectus supplement may also contain,
forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including the risks faced by us described below and elsewhere
in this prospectus and the documents incorporated by reference in this prospectus and any prospectus supplement.
ABOUT SILVERGATE CAPITAL CORPORATION
Silvergate Capital Corporation is the holding
company for our wholly-owned subsidiary, Silvergate Bank, which we believe is the leading provider of innovative financial infrastructure
solutions and services to participants in the nascent and expanding digital currency industry. We leverage our technology platform
and our management team's expertise to develop solutions for many of the largest U.S. digital currency exchanges and investors
around the globe. Our solutions are built on our deep-rooted commitment and proprietary approach to regulatory compliance.
Instrumental to our leadership position
and growth strategy is the Silvergate Exchange Network, or the SEN, our proprietary, virtually instantaneous payment network for
participants in the digital currency industry which serves as a platform for the development of additional products and services.
The SEN has a powerful network effect that makes it more valuable as participants and utilization increase. The SEN has enabled
us to focus on significantly growing our noninterest bearing deposit product for digital currency industry participants, which
has provided the majority of our funding over the last three years. This unique source of funding is a distinctive advantage over
most traditional financial institutions and allows us to generate revenue from a conservative portfolio of investments in cash,
short term securities and certain types of loans that we believe generate attractive risk-adjusted returns. In addition, use of
the SEN has resulted in an increase in noninterest income that we believe will become a valuable source of additional revenue as
we develop and deploy fee-based solutions in connection with our digital currency initiative. We are also evaluating additional
products or product enhancements specifically targeted at providing further financial infrastructure solutions to our customers
and strengthening SEN network effects. The first of such products is SEN Leverage, which allows our customers to obtain U.S. dollar
loans collateralized by bitcoin.
The Company’s assets consist primarily
of its investment in Silvergate Bank and its primary activities are conducted through Silvergate Bank. The Company is a registered
bank holding company that is subject to supervision by the Board of Governors of the Federal Reserve System, or the Federal Reserve.
Silvergate Bank is subject to supervision by the California Department of Financial Protection and Innovation, Division of Financial
Institutions, or the DFPI, and, as a Federal Reserve member bank since 2012, the Federal Reserve Bank of San Francisco, or the
FRB. Silvergate Bank’s deposits are insured up to legal limits by the Federal Deposit Insurance Corporation, or the FDIC.
Silvergate Bank provides financial services
that include commercial banking, commercial and residential real estate lending, mortgage warehouse lending and commercial business
lending. Our client base is diverse and consists of business and individual clients in California and other states and includes
digital currency-related customers in the United States and internationally. In 2009, we began introducing an expanded array of
relationship-oriented business products and services, which has been augmented by our digital currency initiative. While our commercial
real estate lending activities are concentrated in California, we have a broader, nationwide focus on deposit and cash management
services for digital currency-related businesses, as well as mortgage warehouse lending. Our goal is to establish profitable long-term
banking relationships.
Financial information related to our operations
is included in the notes to the Company’s Consolidated Financial Statements included in Item 8 of Part II of our Annual Report on Form 10-K for the year ended December 31, 2019, and any consolidated financial statements of the Company that
we subsequently file with the SEC, which are incorporated by reference in this prospectus. A detailed discussion of our business
is contained in Item 1 of Part I of our Annual Report on Form 10-K for the year ended December 31, 2019, and any
subsequent reports that we file with the SEC, which are incorporated by reference in this prospectus. See “WHERE YOU CAN
FIND MORE INFORMATION” above for information on how to obtain a copy of our annual report and any subsequent reports.
Our principal executive office is located
at 4250 Executive Square, Suite 300, La Jolla, California 92037 and our telephone number is (858) 362-6300. We maintain an
Internet site at http://www.silvergate.com on which we make available free of charge our Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and all amendments to the foregoing as soon as reasonably
practicable after these reports are electronically filed with, or furnished to, the SEC. Neither our website nor the information
on our website is included or incorporated in, or is a part of, this prospectus.
At September 30, 2020, we had consolidated
total assets of approximately $2.621 billion, total deposits of approximately $2.281 billion, and stockholders’ equity of
approximately $283.8 million.
SUPERVISION AND REGULATION
We are a bank holding company registered
under the federal Bank Holding Company Act of 1956, as amended, or the BHC Act. We and Silvergate Bank are extensively regulated
under federal and state laws. The regulation of bank holding companies and banks is intended primarily for the protection of depositors
and the deposit insurance fund and not for the benefit of security holders. For a discussion of the material elements of the extensive
regulatory framework applicable to us and Silvergate Bank, please refer to Item 1 of Part I of our Annual Report on Form 10-K for the year ended December 31, 2019 under the heading “Supervision and Regulation” and any subsequent reports
that we file with the SEC, which are incorporated by reference in this prospectus. See “WHERE YOU CAN FIND MORE INFORMATION”
above for information on how to obtain a copy of our Annual Report on Form 10-K and any subsequent reports.
USE OF PROCEEDS
The Company intends to use the net proceeds
from the sale of any securities offered under this prospectus in the manner and for the purposes set forth in the applicable prospectus
supplement.
DESCRIPTION OF OUR SECURITIES AND THE
SECURITIES TO BE REGISTERED
This prospectus relates to the offer and
sale of shares of our Class A common stock, shares of our preferred stock, debt securities, and warrants to purchase shares
of our Class A common stock, shares of our preferred stock and/or debt securities, and units comprised of one or more shares
of Class A common stock, shares of preferred stock and warrants in any combination. The following is a summary of the general
terms of our capital stock and the securities covered by this prospectus and does not purport to be a complete description. The
full terms of our capital stock and the securities covered by this prospectus are set forth in Exhibit 3.1 through Exhibit 4.7,
inclusive, to the registration statement that contains this prospectus, which are incorporated by reference in this prospectus.
Unless expressly stated otherwise, the following summary does not give effect to provisions of applicable statutory or common law.
Capital Stock
We are authorized by our Articles of Incorporation,
as amended, or Articles, to issue up to (i) 125,000,000 shares of Class A common stock, par value $0.01 per share, (ii) 25,000,000
shares of Class B common stock, par value $0.01 per share, and (iii) 10,000,000 shares of preferred stock, par value
$0.01 per share. Our Charter generally permits the Board of Directors of the Company to increase or decrease the number of authorized
shares of capital stock of any class or series without the approval of our stockholders. The authorized but unissued shares of
our capital stock are available for future issuance without shareholder approval, unless otherwise required by applicable law or
the rules of any applicable securities exchange.
As of December 1, 2020,
18,676,070 shares of our Class A common stock and 64,197 shares of our Class B common stock were issued and
outstanding and held by approximately 200 shareholders of record. As of such date, no shares of our preferred stock
were issued and outstanding. As of such date, we had 1,247,837 shares available for issuance as share-based payment awards
that may be granted under our stock plans.
Common Stock
The following section describes the material
features and rights of our common stock. The summary does not purport to be exhaustive and is qualified in its entirety by reference
to our Articles and Amended and Restated Bylaws, or Bylaws, which have been filed as exhibits to the registration statement of
which this prospectus is a part, and to applicable Maryland law, including the Maryland General Corporation Law, or the MGCL.
General
Voting. Each holder of
our Class A common stock is entitled to one vote for each share on all matters submitted to a vote of shareholders, except
as otherwise required by law and subject to the rights and preferences of the holders of any outstanding shares of our preferred
stock. The members of our board of directors are elected by a plurality of the votes cast. Our Articles expressly prohibit cumulative
voting.
Class B Common Stock. Our
Class B common stock is non-voting while held by the initial holder with certain limited exceptions. Each share
of Class B common stock will automatically convert into a share of Class A common stock upon certain sales or transfers
by the initial holder of such shares including to an unaffiliated third-party and in a widely dispersed public offering. If Class B
common stock is sold or transferred to an affiliate of the initial holder, the Class B common stock would not convert into
Class A common stock.
Dividends and Other Distributions. Subject
to certain regulatory restrictions discussed below and to the rights of holders of any preferred stock that we may issue, all shares
of our Class A and Class B common stock are entitled to share equally in dividends from legally available funds, when,
as, and if declared by our board of directors. Upon any voluntary or involuntary liquidation, dissolution or winding up of our
affairs, all shares of our Class A and Class B common stock would be entitled to share equally in all our remaining assets
available for distribution to our shareholders after payment of creditors and subject to any prior distribution rights related
to our preferred stock.
The Federal Reserve has established guidelines
with respect to the maintenance of appropriate levels of capital by registered bank holding companies such as the Company. Compliance
with such standards, as presently in effect, or as they may be amended from time to time, could possibly limit the amount of dividends
that we may pay in the future. In 1985, the Federal Reserve issued a policy statement on the payment of cash dividends by bank
holding companies. In the statement, the Federal Reserve expressed its view that a holding company experiencing earnings weaknesses
should not pay cash dividends exceeding its net income, or which could only be funded in ways that weaken the holding company’s
financial health, such as by borrowing. Our ability to pay dividends and make other distributions to our shareholders depends in
part upon the receipt of dividends from Silvergate Bank and is limited by federal law. Silvergate Bank is a legal entity separate
and distinct from the Company. As a depository institution, the deposits of Silvergate Bank are insured by the FDIC, which is Silvergate
Bank’s primary federal regulator. Under certain circumstances the FDIC may determine that the payment of dividends or other
distributions by a bank would be an unsafe or unsound practice and to prohibit that payment. The Federal Deposit Insurance Act,
or the FDIA, and the FDIC regulations generally allow a bank to pay dividends on common stock only out of net income for the calendar
year to date and retained earnings from the prior two calendar years. Additionally, the FDIA generally prohibits an insured depository
institution from making any capital distribution (including payment of a dividend) or paying any management fee to its parent holding
company if the depository institution would thereafter be undercapitalized. See Item 1 of Part I of our Annual Report on Form 10-K
for the year ended December 31, 2019 under the heading “Supervision and Regulation.”
Preemptive Rights. Holders
of our Class A and Class B common stock do not have preemptive or subscription rights to acquire any authorized but unissued
shares of our capital stock upon any future issuance of shares.
Restrictions on Ownership. The
BHC Act generally permits a company to acquire control of the Company with the prior approval of the Federal Reserve. However,
any such company is restricted to banking activities, other activities closely related to the banking business as determined by
the Federal Reserve and, for some companies, certain other financial activities. The BHC Act defines control in general as ownership
of 25% or more of any class of voting securities, the authority to appoint a majority of the board of directors or other exercise
of a controlling influence. Federal Reserve regulations provide that ownership of 5% or less of a class of voting securities is
not control. As a policy matter, if a company owns more than 7.5% of a class of voting securities, the Federal Reserve expects
the company to consult with the agency and in some cases will require the company to enter into passivity or anti-association commitments.
Under a rebuttable presumption established by the Federal Reserve, the acquisition of 10% or more of a class of voting stock of
a bank holding company with a class of securities registered under Section 12 of the Exchange Act, such as the Company following
the offering, would, under the circumstances set forth in the presumption, constitute acquisition of control of the bank holding
company.
Our Class A common stock is listed
on the New York Stock Exchange under the symbol “SI.” The Transfer Agent for our Class A common stock and Class B
common stock is American Stock Transfer & Trust Company, LLC.
Business Combinations under Silvergate’s Articles
and Maryland Law
Amendment of the Articles. In
general and except for increases or decreases to our authorized shares of Class A and Class B common stock and any class
of capital stock, which may be approved by our board of directors without shareholder approval, our Articles may be amended upon
the vote of holders of two-thirds of the shares of the Company entitled to vote generally in an election of directors,
voting together as a single class, which is the minimum vote required under Maryland law.
Restrictions on Business Combinations
with Interested Shareholders. Section 3-602 of the MGCL, as in effect on the date hereof, imposes conditions
and restrictions on certain “business combinations” (including, among other transactions, a merger, consolidation,
share exchange, or, in certain circumstances, an asset transfer or issuance of equity securities) between a Maryland corporation
and any person who beneficially owns at least 10% of the corporation’s stock, or an interested shareholder. Unless approved
in advance by the board of directors, or otherwise exempted by the statute, such a business combination is prohibited for a period
of five years after the most recent date on which the interested shareholder became an interested shareholder. After such five-year
period, a business combination with an interested shareholder must be: (a) recommended by the corporation’s board of
directors, and (b) approved by the affirmative vote of at least (i) 80% of the corporation’s outstanding shares
entitled to vote and (ii) two-thirds of the outstanding shares entitled to vote which are not held by the interested
shareholder with whom the business combination is to be effected, unless, among other things, the corporation’s common shareholders
receive a “fair price” (as defined by the statute) for their shares and the consideration is received in cash or in
the same form as previously paid by the interested shareholder for his or her shares.
Control Share Acquisition Statute. Under
the MGCL’s control share acquisition law, as in effect on the date hereof, voting rights of shares of stock of a Maryland
corporation acquired by an acquiring person at ownership levels of 10%, 33 1/3% and 50% of the outstanding shares are denied unless
conferred by a special shareholder vote of two-thirds of the outstanding shares held by persons other than the acquiring
person and officers and directors of the corporation or, among other exceptions, such acquisition of shares is made pursuant to
a merger agreement with the corporation or the corporation’s charter or bylaws permit the acquisition of such shares prior
to the acquiring person’s acquisition thereof. Unless a corporation’s charter or bylaws provide otherwise, the statute
permits such corporation to redeem the acquired shares at “fair value” if the voting rights are not approved or if
the acquiring person does not deliver a “control share acquisition statement” to the corporation on or before the tenth
day after the control share acquisition. The acquiring person may call a shareholder’s meeting to consider authorizing voting
rights for control shares subject to meeting disclosure obligations and payment of costs set out in the statute. If voting rights
are approved for more than 50% of the outstanding stock, objecting shareholders may have their shares appraised and repurchased
by the corporation for cash. Pursuant to the terms of our Bylaws, we have opted out from the operation of the control share acquisition
law. As such, the above described control share acquisition statute will not be applicable to us and will not apply to shares of
stock acquired by a shareholder subsequent to the adoption of the bylaw provision that opts-out of control share acquisition
law.
Certain Provisions Potentially Having an Anti-Takeover
Effect
Our Articles and Bylaws contain certain
provisions that may have the effect of deterring or discouraging, among other things, a non-negotiated tender or exchange
offer for our Class A and Class B common stock, a proxy contest for control of the Company, the assumption of control
of the Company by a holder of a large block of our Class A and Class B common stock and the removal of our directors
or management. These provisions:
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empower our board of directors, without shareholder approval, to issue our preferred stock, the terms of which, including voting
power, are set by our board of directors;
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empower our board of directors, without shareholder approval, to amend our Articles to increase or decrease our authorized
shares of Class A and Class B common stock and any class of capital stock that we have the authority to issue;
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divide our board of directors into five classes serving staggered five-year terms;
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provide that directors may be removed from office for cause upon a majority shareholder vote and may be removed from office
without cause only upon an 80% shareholder vote;
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eliminate cumulative voting in elections of directors;
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permit our board of directors to alter, amend or repeal our Bylaws or to adopt new bylaws;
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require the request of holders of at least one-fifth of the outstanding shares of our capital stock entitled to vote at a meeting
to call a special shareholders’ meeting;
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prohibit shareholder action by less than unanimous written consent, thereby requiring virtually all actions to be taken at
a meeting of the shareholders;
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require shareholders that wish to bring business before our annual meeting of shareholders or nominate candidates for election
as directors at our annual meeting of shareholders to provide timely notice of their intent in writing; and
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enable our board of directors to increase, between annual meetings, the number of persons serving as directors and to fill
vacancies created by such increase by a majority vote of the directors present at a meeting of directors.
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Our Bylaws may have the effect of precluding
a contest for the election of directors or the consideration of shareholder proposals if the established procedures for advance
notice are not followed, or of discouraging or deterring a third party from conducting a solicitation of proxies to elect its own
slate of directors or to approve its proposal without regard to whether consideration of the nominees or proposals might be harmful
or beneficial to us and our shareholders.
Preferred Stock
Under our Articles, upon authorization of
our board of directors, we may issue shares of one or more series of our preferred stock from time to time. Our board of directors
may, without any action by holders of Class A and Class B common stock or, except as may be otherwise provided in the
terms of any series of preferred stock of which there are shares outstanding, holders of preferred stock adopt resolutions to designate
and establish a new series of preferred stock. Upon establishing such a series of preferred stock, the board will determine the
number of shares of preferred stock of that series that may be issued and the rights and preferences of that series of preferred
stock. Our board of directors has not designated or established any series of preferred stock. The rights of any series of preferred
stock may include, among others:
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general or special voting rights;
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preferential liquidation or preemptive rights;
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preferential cumulative or noncumulative dividend rights;
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redemption or put rights; and
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conversion or exchange rights.
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We may issue shares of, or rights to purchase
shares of, one or more series of our preferred stock that have been designated from time to time, the terms of which might:
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adversely affect voting or other rights evidenced by, or amounts otherwise payable with respect to, the Class A and Class B
common stock or other series of preferred stock;
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discourage an unsolicited proposal to acquire us; or
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facilitate a business combination involving us.
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The existence of shares of authorized undesignated
preferred stock enables us to meet possible contingencies or opportunities in which the issuance of shares of preferred stock may
be advisable, such as in the case of acquisition or financing transactions. Having shares of preferred stock available for issuance
gives us flexibility in that it would allow us to avoid the expense and delay of calling a meeting of shareholders at the time
the contingency or opportunity arises. Any issuance of preferred stock with voting rights or which is convertible into voting shares
could adversely affect the voting power of the holders of common stock.
Any of these actions could have an anti-takeover
effect and discourage a transaction that some or a majority of our shareholders might believe to be in their best interests or
in which our shareholders might receive a premium for their stock over our then market price.
Debt Securities
The debt securities are to be issued under
an indenture, or the indenture, between us and the trustee named in the applicable prospectus supplement as trustee, or the trustee,
the form of which is filed as an exhibit to the registration statement of which this prospectus is a part. The debt securities
may be issued from time to time in one or more series. The particular terms of each series, or of the debt securities forming a
part of a series, which are offered by a prospectus supplement will be described in such prospectus supplement.
The following summary of certain provisions
of the indenture does not purport to be complete and is subject, and is qualified in its entirety by reference, to all the provisions
of the indenture, including the definitions of certain terms used in the indenture, and, with respect to any particular debt securities,
to the description of the terms of such debt securities included in the applicable prospectus supplement. Wherever particular sections
or defined terms of the indenture are referred to in this prospectus or in the applicable prospectus supplement, such sections
or defined terms are incorporated by reference in this prospectus or in the applicable prospectus supplement, as the case may be.
We are a bank holding company for Silvergate
Bank, and almost all of our operating assets are owned by Silvergate Bank. We are a legal entity separate and distinct from Silvergate
Bank. We rely primarily on dividends from Silvergate Bank to meet our obligations. There are regulatory limitations on the payment
of dividends directly or indirectly to us from Silvergate Bank. Accordingly, the debt securities will be effectively subordinated
to all existing and future liabilities of Silvergate Bank, and holders of debt securities should look only to our assets for payments
of the debt securities.
Terms of Debt Securities
The indenture will provide that debt securities
in separate series may be issued from time to time without limitation as to aggregate principal amount. We may specify a maximum
aggregate principal amount for the debt securities of any series. The debt securities are to have such terms and provisions which
are not inconsistent with the indenture, including as to maturity, principal and interest, as our board of directors may determine.
The debt securities may be either senior or subordinated debt securities, which may be issued as convertible debt securities or
exchangeable debt securities.
The applicable prospectus supplement will
set forth the price or prices at which the debt securities to be offered will be issued and will describe the following terms of
such debt securities:
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the title of the debt securities;
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any limit on the aggregate principal amount of the debt securities or the series of which they are a part;
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the third party to whom any interest on the debt securities will be payable, if other than the third party in whose name the
debt securities are registered at the close of business on the regular record date for such interest;
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the date or dates on which the principal of the debt securities will be payable;
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the rate or rates at which the debt securities will bear interest, if any, the date or dates from which any such interest will
accrue, the interest payment dates on which any such interest will be payable and the regular record date for any such interest
payable on any interest payment date;
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the place or places where the principal of and any premium and interest on the debt securities will be payable;
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the period or periods within which, the price or prices at which and the terms and conditions on which the debt securities
may be redeemed, in whole or in part, at our option;
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our obligation, if any, to redeem or purchase the debt securities pursuant to any sinking fund or analogous provision or at
the option of the holder of the debt security, and the period or periods within which, the price or prices at which and the terms
and conditions on which the debt securities will be redeemed or purchased, in whole or in part, pursuant to any such obligation;
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conversion or exchange provisions, if any, including conversion or exchange prices or rates and adjustments thereto;
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the terms, if any, pursuant to which any debt securities will be subordinate to any of our debt;
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the denominations in which the debt securities will be issuable, if other than denominations of $1,000 and any integral multiple
thereof;
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if the amount of principal of or any premium or interest on the debt securities may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts will be determined;
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if other than the currency of the United States of America, the currency, currencies or currency units in which the principal
of or any premium or interest on the debt securities will be payable (and the manner in which the equivalent of the principal amount
of the debt securities in the currency of the United States of America is to be determined for any purpose, including for the purpose
of determining the principal amount deemed to be outstanding at any time);
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if the principal of or any premium or interest on the debt securities is to be payable, at our election or at the election
of the holder, in one or more currencies or currency units other than those in which the debt securities are stated to be payable,
the currency, currencies or currency units in which payment of any such amount as to which such election is made will be payable,
the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the
manner in which such amount is to be determined);
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if other than the entire principal amount of the debt securities, the portion of the principal amount of the debt securities
which will be payable upon declaration of acceleration of maturity;
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if the principal amount payable at the stated maturity of the debt securities will not be determinable as of any one or more
dates prior to the stated maturity, the amount which will be deemed to be such principal amount as of any such date for any purpose,
including the principal amount of the debt securities which will be due and payable upon any maturity other than the stated maturity
or which will be deemed to be outstanding as of any such date (or, in any such case, the manner in which such deemed principal
amount is to be determined);
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if applicable, that debt securities, in whole or any specified part, are defeasible pursuant to the provisions of the indenture
described under “—Defeasance and Covenant Defeasance—Defeasance and Discharge” on page 18 of this
prospectus or “—Defeasance and Covenant Defeasance—Defeasance of Certain Covenants” on page 18 of
this prospectus, or under both such captions;
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if applicable, whether the debt securities will be issuable in whole or in part in the form of one or more global debt securities
and, if so, the respective depositaries for such global debt securities, the form of any legend or legends to be borne by any such
global security in addition to or in lieu of the legend referred to under “—Global Debt Securities” on pages 13-14
of this prospectus and, if different from those described under such caption, any circumstances under which any such global debt
security may be exchanged in whole or in part for debt securities registered, and any transfer of such global debt security in
whole or in part may be registered, in the names of persons other than the depositary for such global security or its nominee;
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any addition to or change in the events of default applicable to the debt securities and any change in the right of the trustee
or the holders to declare the principal amount of the debt securities due and payable;
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any addition to or change in the covenants in the indenture applicable to the debt securities; and
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any other terms of debt securities not inconsistent with the provisions of the indenture.
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Debt securities, including original issue
discount debt securities, may be sold at a substantial discount below their principal amount. Certain special U.S. federal income
tax considerations, if any, applicable to debt securities sold at an original issue discount may be described in the applicable
prospectus supplement. In addition, certain special U.S. federal income tax or other considerations, if any, applicable to any
debt securities which are denominated in a currency or currency unit other than U.S. dollars may be described in the applicable
prospectus supplement. If we use any index to determine the amount of payments of principal of, premium, if any, or interest, if
any, on any debt securities, we will also describe in the applicable prospectus supplement the special United States federal income
tax, accounting and other considerations applicable to the debt securities.
Senior Debt Securities
Payment of the principal of and any premium
and interest on senior debt securities will rank on a parity with all of our other unsecured and unsubordinated debt securities.
Subordinated Debt Securities
Payment of the principal of and any premium
and interest on subordinated debt securities will be junior in right of payment to the prior payment in full of all of our unsubordinated
debt. We will set forth in the applicable prospectus supplement relating to any subordinated debt securities the subordination
terms of such securities, as well as the aggregate amount of outstanding debt, as of the most recent practicable date, that by
its terms would be senior to the subordinated debt securities. We will also set forth in such prospectus supplement limitations,
if any, on issuance of additional senior debt.
Form, Exchange and Transfer
The debt securities of each series will
be issuable only in fully registered form, without coupons, and, unless otherwise specified in the applicable prospectus supplement,
only in denominations of $1,000 and integral multiples thereof. At the option of the holder, subject to the terms of the indenture
and the limitations applicable to global debt securities, debt securities of each series will be exchangeable for other debt securities
of the same series of any authorized denomination and of a like tenor and aggregate principal amount.
Subject to the terms of the indenture and
the limitations applicable to global debt securities, a holder may present debt securities for exchange as provided above, or for
registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed) at the office or agency of
Silvergate at the place or places where the principal of and any premium and interest on the debt securities are payable. A holder
will not incur a service charge for any registration of transfer or exchange of debt securities, but a holder must pay a sum sufficient
to cover any tax or other governmental charge as may be described in the indenture. Such transfer or exchange will be effected
upon the security registrar or us or our agent, as the case may be, being satisfied with the documents of title and identity of
the person making the request. We expect to appoint the trustee as security registrar. Any agent (in addition to the security registrar)
initially designated by us for any debt securities will be named in the applicable prospectus supplement. We may at any time designate
additional agents or rescind the designation of any agent or approve a change in the office through which any agent acts, except
that we will be required to maintain an agent in each place of payment for the debt securities of each series.
If the debt securities of any series (or
of any series and specified terms) are to be redeemed in part, we will not be required to (a) issue, register the transfer
of or exchange any debt securities of that series (or of that series and specified terms, as the case may be) during a period beginning
at the opening of business 15 days before the day of mailing of a notice of redemption of any such debt securities that may be
selected for redemption and ending at the close of business on the day of such mailing or (b) register the transfer of or
exchange any debt security so selected for redemption, in whole or in part, except the unredeemed portion of the debt securities
being redeemed in part.
Global Debt Securities
Some or all of a series of debt securities
may be represented, in whole or in part, by one or more global debt securities. Each global security will be registered in the
name of a depositary or its nominee identified in the applicable prospectus supplement, will be deposited with such depositary
or its nominee or a custodian and will bear a legend regarding the restrictions on exchanges and registration of transfer referred
to below and any such other matters as may be provided for pursuant to the indenture.
Notwithstanding any provision of the indenture
or any debt security described in this prospectus, no global debt security may be exchanged in whole or in part for debt securities
registered, and no transfer of a global debt security in whole or in part may be registered, in the name of any person except:
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by the depositary to its nominee;
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by a nominee of the depositary to the depositary or another nominee; or
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by the depositary or any nominee to a successor of the depositary, or a nominee of the successor,
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unless (i) the depositary has notified us that it is unwilling
or unable to continue as depositary for such global debt security or has ceased to be qualified to act as such as required by the
indenture, (ii) there shall have occurred and be continuing an event of default under the indenture with respect to the debt
securities represented by such global debt security, or (iii) there shall exist such circumstances, if any, in addition to
or in lieu of those described above as may be described in the applicable prospectus supplement. All securities issued in exchange
for a global security or any portion of a global debt security will be registered in such names as the depositary may direct.
As long as the depositary, or its nominee,
is the registered holder of a global security, the depositary or its nominee, as the case may be, will be considered the sole owner
and holder of such global debt security and the debt securities represented by the global debt security for all purposes under
the debt securities and the indenture. Except in the limited circumstances referred to above, a holder will not be entitled to
have such global debt security or any securities registered by the global debt security registered in its name, will not receive
or be entitled to receive physical delivery of certificated debt securities in exchange of the global debt security and will not
be considered to be the owners or holders of such global debt security or any debt securities represented by the global debt security
for any purpose under the debt securities or the indenture. All payments of principal of and any premium and interest on a global
debt security will be made to the depositary or its nominee, as the case may be, as the holder of the global debt security. The
laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a global debt security.
Ownership of beneficial interests in a global
debt security will be limited to institutions that have accounts with the depositary or its nominee, referred to as participants,
and to persons that may hold beneficial interests through participants. In connection with the issuance of any global debt security,
the depositary or its nominee will credit, on its book-entry registration and transfer system, the respective principal amounts
of debt securities represented by the global debt security to the accounts of its participants. Ownership of beneficial interests
in a global debt security will be shown only on, and the transfer of those ownership interests will be effected only through, records
maintained by the depositary or its nominee (with respect to participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf). Payments, transfers, exchanges and others matters relating to
beneficial interests in a global debt security may be subject to various policies and procedures adopted by the depositary from
time to time. We, the trustee or any agent of us or the trustee will not have any responsibility or liability for any aspect of
the depositary's or any participant's records relating to, or for payments made on account of, beneficial interests in a global
debt security, or for maintaining, supervising or reviewing any records relating to such beneficial interests.
We expect that the depositary or its nominee,
upon receipt of any principal, premium, if any, or interest, if any, payment immediately will credit participants' accounts with
amounts in proportion to their respective beneficial interests in the principal amount of the global debt security as shown on
the records of the depositary or its nominee. We also expect that payments by participants to holders of debt securities, as an
owner of a beneficial interest in the global debt security held through those participants, will be governed by standing instructions
and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in
“street name.” These payments will be the responsibility of those participants.
Secondary trading in notes and debentures
of corporate issuers is generally settled in clearinghouse or next-day funds. In contrast, beneficial interests in a global debt
security, in some cases, may trade in the depositary’s same-day funds settlement system, in which secondary market trading
activity in those beneficial interests would be required by the depositary to settle in immediately available funds. There is no
assurance as to the effect, if any, that settlement in immediately available funds would have on trading activity in such beneficial
interests. Also, settlement for purchases of beneficial interests in a global debt security upon the original issuance thereof
may be required to be made in immediately available funds.
Payments and Paying Agents
Unless otherwise indicated in the applicable
prospectus supplement, payment of interest on a debt security on any interest payment date will be made to the person in whose
name such debt security (or one or more predecessor debt securities) is registered at the close of business on the regular record
date for such interest.
Unless otherwise indicated in the applicable
prospectus supplement, principal of and any premium and interest on the debt securities of a particular series will be payable
at our office or the office of an agent or agents as we may designate for such purpose from time to time. Any such agents initially
designated by us for the debt securities of a particular series will be named in the applicable prospectus supplement. We may at
any time designate debt securities additional agents or rescind the designation of any agent or approve a change in the office
through which any agent acts, except that we will be required to maintain an agent in each place of payment for the debt securities
of a particular series.
All moneys or U.S. government obligations
(including proceeds thereof) deposited by us with the trustee or any paying agent for the payment of the principal of or any premium
or interest on any debt security which remain unclaimed at the end of two years after such principal, premium or interest has become
due and payable will be repaid to us, and after repayment to us, a holder of debt securities is entitled to seek payment only from
us as a general unsecured creditor.
Consolidation, Merger and Sale of Assets
The indenture will provide that we will
not consolidate with or merge into any other person or convey, transfer or lease substantially all of our properties to any person,
and no person may consolidate with or merge into us unless (i) the successor is organized under the laws of the United States
or any state or the District of Columbia, and the successor expressly assumes our obligations under the indenture and the debt
securities, (ii) after giving effect to the transaction, no event of default under the indenture, and no event which, after
notice or lapse of time, or both, would become an event of default under the indenture, exists, and (iii) certain other conditions
as prescribed in the indenture are met.
The general provisions of the indenture
do not afford holders of the debt securities protection in the event of a highly leveraged or other transaction that we may become
involved in that may adversely affect holders of the debt securities.
Events of Default
Each of the following will constitute an
event of default under the indenture with respect to debt securities of any series:
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our failure to pay principal of or any premium on any debt security of that series when due, whether at maturity, upon redemption,
by accelerating the maturity or otherwise;
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(b)
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our failure to pay any interest on any debt securities of that series when due, continued for 30 days;
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(c)
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our failure to deposit any sinking fund payment, when due, in respect of any debt security of that series;
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(d)
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our failure to observe or perform any other covenant or warranty of ours contained in the indenture (other than a covenant
included in the indenture solely for the benefit of a series other than that series), which failure continues for 90 days after
written notice to us by the trustee, or the holders of at least 25% in principal amount of the outstanding debt securities of that
series, as provided in the indenture;
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(e)
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with respect to senior debt securities, acceleration of any indebtedness for borrowed money by us having an aggregate principal
amount outstanding of at least $25 million (or such other amount as may be agreed upon), if such indebtedness has not been discharged,
or such acceleration has not been rescinded or annulled, within 10 days after written notice has been given by the trustee, or
the holders of at least 25% in principal amount of the outstanding debt securities of that series, as provided in the indenture;
or
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(f)
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certain events related to our bankruptcy, insolvency or reorganization.
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An event of default for a particular series
of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the
indenture. If an event of default relating to the payment of interest, principal or any sinking fund installment involving any
series of debt securities has occurred and is continuing, either the trustee or the holders of not less than 25% in aggregate principal
amount of the outstanding debt securities of that series by notice as provided in the indenture may declare the principal amount
of the debt securities of that series (or, in the case of any debt security that is an original issue discount security or the
principal amount of which is not then determinable, such portion of the principal amount of such debt security, or such other amount
in lieu of such principal amount, as may be specified in the terms of such debt security) to be due and payable immediately.
If an event of default (other than those
described in clause (f) above) occurs and is continuing with respect to debt securities of any series at the time outstanding,
then the trustee or the holders of not less than 25% in aggregate principal amount of all of the series of debt securities outstanding
may declare the entire principal amount of all of the series of debt securities due and payable immediately.
If, however, an event of default (other
than those described in clause (f) above) has occurred and is continuing for less than all of the series of debt securities,
then the trustee or the holders of not less than 25% in aggregate principal amount of each affected series of the debt securities
may declare the entire principal amount of all debt securities of such affected series due and payable immediately.
If an event of default described in clause
(f) above with respect the debt securities of any series at the time outstanding shall occur, the principal amount of all
the debt securities of that series (or, in the case of any such original issue discount security or other debt security, such specified
amount) will automatically, and without any action by the trustee or any holder, become immediately due and payable.
At any time following any declaration of
acceleration, but before a judgment or decree based on acceleration, the holders of a majority in aggregate principal amount of
the outstanding debt securities of that series may, under certain circumstances, rescind and annul such acceleration if all events
of default, other than the non-payment of accelerated principal (or other specified amount), have been cured or waived as provided
in the indenture. For information as to waiver of defaults, see “—Modification and Waiver” below.
Subject to the provisions of the indenture
relating to the duties of the trustee in case an event of default occurs and is continuing, the trustee will be under no obligation
to exercise any of its rights or powers under the indenture at the request or direction of any of the holders, unless such holders
shall have offered to the trustee reasonable indemnity. Subject to such provisions for the indemnification of the trustee, the
holders of a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power
conferred on the trustee with respect to the debt securities of that series so long as such direction does not conflict with any
rule of law or with the indenture, and the trustee may take any other action deemed proper by the trustee which is not inconsistent
with such direction.
No holder of a debt security of any series
will have any right to institute any proceeding with respect to the indenture, or for the appointment of a receiver or a trustee,
or for any other remedy thereunder, unless (i) such holder has previously given to the trustee written notice of a continuing
event of default with respect to the debt securities of that series, (ii) the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of that series have made written request, (iii) such holder or holders have offered
reasonable indemnity to the trustee to institute such proceeding as trustee and (iv) the trustee has failed to institute such
proceeding, and has not received from the holders of a majority in aggregate principal amount of the outstanding debt securities
of that series a direction inconsistent with such request, within 60 days after such notice, request and offer. However, such limitations
do not apply to a suit instituted by a holder of a debt security for the enforcement of payment of the principal of or any premium
or interest on such debt security on or after the applicable due date specified in such debt security.
We will be required to furnish to the trustee
annually a statement by certain of our officers as to whether or not we, to the best of such officers’ knowledge, are in
default in the performance or observance of any of the terms, provisions and conditions of the indenture and, if so, specifying
all such known defaults and the nature and status thereof.
Modification and Waiver
Modifications of and amendments to the indenture
may be made by us and the trustee with the consent of the holders of a majority in aggregate principal amount of the outstanding
debt securities of each series of debt securities affected by such modification or amendment; provided , however,
that no modification or amendment may, without the consent of the holder of each outstanding debt security affected:
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(a)
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change the stated maturity of the principal of, or any installment of principal of or interest on, any debt security;
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(b)
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reduce the principal amount of, or any premium or interest on, any debt security;
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(c)
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reduce the amount of principal of an original issue discount debt security or any other debt security payable upon acceleration
of the maturity;
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(d)
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change the place or currency of payment of principal of, or any premium or interest on, any debt security;
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(e)
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modify any of the subordination provisions in a manner adverse to the holders of those securities;
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(f)
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impair the right to institute suit for the enforcement of any payment on or with respect to any debt security;
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(g)
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reduce the percentage in principal amount of outstanding debt securities of any series, the consent of whose holders is required
for modification or amendment of the indenture;
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(h)
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reduce the percentage in principal amount of outstanding debt securities of any series necessary for waiver of compliance with
certain provisions of the indenture or for waiver of certain defaults; or
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(i)
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except as provided by the indenture, modify provisions of the indenture relating to modification and waiver.
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In addition, as described in the indenture,
certain modifications and amendments to the indenture may be made by us and the trustee without the consent of holders of debt
securities.
The holders of at least a majority in principal
amount of the outstanding debt securities of any series may waive compliance by us with certain restrictive provisions of the indenture.
The holders of not less than a majority in principal amount of the outstanding debt securities of any series may, on behalf of
all holders of such series of debt securities, waive any past default under the indenture, except a default in the payment of principal,
premium or interest and certain covenants and provisions of the indenture which cannot be amended without the consent of the holder
of each outstanding debt security of such series affected.
The indenture will provide that in determining
whether the holders of the requisite principal amount of the outstanding debt securities have given or taken any direction, notice,
consent, waiver or other action under the indenture as of any date, (i) the principal amount of an original issue discount
security that will be deemed to be outstanding will be the amount of the principal thereof that would be due and payable as of
such date upon acceleration of the maturity to such date, (ii) if, as of such date, the principal amount payable at the stated
maturity of a debt security is not determinable (for example, because it is based on an index), the principal amount of such debt
security deemed to be outstanding as of such date will be an amount determined in the manner prescribed for such debt security,
and (iii) the principal amount of a debt security denominated in one or more foreign currencies or currency units that will
be deemed to be outstanding will be the U.S. dollar equivalent, determined as of such date in the manner prescribed for such debt
security, of the principal amount of such debt security (or, in the case of a debt security described in clause (i) or (ii) above,
of the amount described in such clause). Certain debt securities, including those for whose payment or redemption money has been
deposited or set aside in trust for the holders and those that have been fully defeased pursuant to the indenture, will not be
deemed to be outstanding.
Except in certain limited circumstances,
we will be entitled to set any day as a record date for the purpose of determining the holders of outstanding debt securities of
any series entitled to give or take any direction, notice, consent, waiver or other action under the indenture, in the manner and
subject to the limitations provided in the indenture. In certain limited circumstances, the trustee will be entitled to set a record
date for action by holders. If a record date is set for any action to be taken by holders of a particular series, such action may
be taken only by persons who are holders of outstanding debt securities of that series on the record date. To be effective, such
action must be taken by holders of the requisite principal amount of such debt securities within a specified period following the
record date. For any particular record date, this period will be 180 days or such other period as may be specified by us (or the
trustee, if it set the record date), and may be shortened or lengthened (but not beyond 180 days) from time to time.
Defeasance and Covenant Defeasance
If and to the extent indicated in the applicable
prospectus supplement, we may elect, at our option at any time, to have the provisions of Section 1302 of the indenture, relating
to defeasance and discharge of indebtedness, or Section 1303 of the indenture, relating to defeasance of certain restrictive
covenants in the indenture, applied to the debt securities of any series, or to any specified part of a series.
Defeasance and Discharge. The indenture
provides that, upon our exercise of our option (if any) to have Section 1302 of the indenture applied to the debt securities,
we will be discharged from all our obligations (and, if applicable, provisions relating to subordination will cease to be effective)
with respect to such debt securities (except for certain obligations to exchange or register the transfer of debt securities, to
replace stolen, lost or mutilated debt securities, to maintain paying agencies and to hold moneys for payment in trust) upon the
irrevocable deposit in trust for the benefit of the holders of such debt securities of money or United States government obligations,
or both, which, through the payment of principal and interest in respect thereof in accordance with their terms, will provide money
in an amount sufficient to pay the principal of and any premium and interest on such debt securities on the respective stated maturities
in accordance with the terms of the indenture and such debt securities. Such defeasance or discharge may occur only if, among other
things, we have delivered to the trustee an opinion of counsel to the effect that we have received from, or there has been published
by, the United States Internal Revenue Service a ruling, or there has been a change in tax law, in either case to the effect that
holders of such debt securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge were not to occur.
Defeasance of Certain Covenants . The
indenture provides that, upon our exercise of our option (if any) to have Section 1303 of the indenture applied to the debt
securities, we may omit to comply with certain restrictive covenants of the indenture and any that may be described in the applicable
prospectus supplement, and the occurrence of certain events of default, which are described above in clause (d) (with respect
to such restrictive covenants) and clause (e) under “—Events of Default” on pages 15-16 of this prospectus
and any that may be described in the applicable prospectus supplement, will be deemed not to be or result in an event of default,
in each case with respect to such debt securities. We, in order to exercise such option, will be required to deposit, in trust
for the benefit of the holders of such debt securities, money or United States government obligations, or both, which, through
the payment of principal and interest in respect thereof in accordance with their terms, will provide money in an amount sufficient
to pay the principal of and any premium and interest on such debt securities on the respective stated maturities in accordance
with the terms of the indenture and such debt securities. We will also be required, among other things, to deliver to the trustee
an opinion of counsel to the effect that holders of such debt securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain obligations and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been the case if such deposit and defeasance were not to occur.
In the event we exercised this option with respect to any debt securities and such debt securities were declared due and payable
because of the occurrence of any event of default, the amount of money and United States government obligations so deposited in
trust would be sufficient to pay amounts due on such debt securities at the time of their respective stated maturities but may
not be sufficient to pay amounts due on such debt securities upon any acceleration resulting from such event of default. In such
case, we would remain liable for such payments.
Notices
Notices to holders of debt securities will
be given by mail to the addresses of such holders as they may appear in the security register.
Title
We, the trustee and any of our agents or
agents of the trustee may treat the person in whose name a debt security is registered as the absolute owner thereof (whether or
not such debt security may be overdue) for the purpose of making payment and for all other purposes.
Governing Law
The indenture and the debt securities will
be governed by, and construed in accordance with, the law of the State of New York.
Regarding the Trustee
The trustee will have all the duties and
responsibilities of an indenture trustee specified in the Trust Indenture Act of 1939. The trustee is not required to expend or
risk its own funds or otherwise incur financial liability in performing its duties or exercising its rights and powers if it reasonably
believes that it is not reasonably assured of repayment or adequate indemnity.
Warrants
We may issue warrants, including warrants
to purchase debt securities, Class A common stock or preferred stock or any combination of the foregoing. Warrants may be
issued independently or together with any other securities offered by this prospectus and may be attached to or separate from the
other securities. If warrants are issued, they will be issued under warrant agreements to be entered into between us and a bank
or trust company, as warrant agent, all of which will be described in the prospectus supplement relating to warrants being offered.
A prospectus supplement relating to any
warrants being offered will include specific terms relating to the offering, including a description of any other securities sold
together with the warrants. Such terms will include:
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·
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the title of the warrants;
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·
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the aggregate number of the warrants;
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·
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the price or prices at which the warrants will be issued;
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·
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the currencies in which the price or prices of the warrants may be payable;
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·
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the designation, amount, and terms of the debt securities, Class A common stock or preferred stock purchasable upon exercise
of the warrants and procedures by which those numbers may be adjusted;
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·
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the designation and terms of the other offered securities, if any, with which the warrants are issued and the number of the
warrants issued with each security;
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·
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if applicable, the date on and after which the warrants and the offered securities purchasable upon exercise of the warrants
will be separately transferable;
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·
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the price or prices at which the offered securities purchasable upon exercise of the warrants may be purchased;
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·
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the date on which the right to exercise the warrants shall commence and the date on which the right shall expire;
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·
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the minimum or maximum amount of the warrants that may be exercised at any one time;
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·
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any terms relating to the modification of the warrants, including adjustments in the exercise price;
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·
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information with respect to book-entry procedures, if any;
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·
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a discussion of any material federal income tax considerations; and
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·
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any other material terms of the warrants, including terms, procedures, and limitations relating to the transferability, exchange,
exercise or redemption of the warrants.
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The descriptions of the warrant agreements
in this prospectus and in any prospectus supplement are summaries of the applicable provisions of the applicable agreements. These
descriptions do not restate those agreements in their entirety and do not contain all of the information that you may find useful.
We urge you to read the applicable agreements because they, and not the summaries, define your rights as holders of the warrants.
For more information, please review the form of the relevant agreements, which we will file with the SEC and will be available
as described in the heading “WHERE YOU CAN FIND MORE INFORMATION” above.
Units
We may issue units comprised of one or more
shares of Class A common stock, shares of preferred stock, debt securities and warrants in any combination. Each unit will
be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. If units are issued, they will be issued under unit agreements
to be entered into between us and a unit agent, as detailed in the prospectus supplement relating to the units being offered. The
unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred
separately at any time or before a specified date. A prospectus supplement relating to any units being offered will include specific
terms relating to the offering, including a description of any securities included in each unit. Such terms will include:
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·
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the designation and terms of the units, and the terms of any of the debt securities, Class A common stock, preferred stock
and warrants comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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·
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a description of the terms of any unit agreement governing the units;
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·
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a description of the provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units;
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·
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a discussion of material federal income tax considerations, if applicable; and
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·
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whether the units will be issued in fully registered or in global form.
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The descriptions of the units in this prospectus
and in any prospectus supplement are summaries of the applicable provisions of the applicable agreements. These descriptions do
not restate those agreements in their entirety and do not contain all of the information that you may find useful. We urge you
to read the applicable agreements because they, and not the summaries, define your rights as holders of the units. For more information,
please review the form of the relevant agreements, which we will file with the SEC and will be available as described in the heading
“WHERE YOU CAN FIND MORE INFORMATION” above.
PLAN OF DISTRIBUTION
We may sell the securities to or through
one or more underwriters or dealers, and also may sell the securities directly to other purchasers or through agents. These firms
may also act as our agents in the sale of the securities. Only underwriters named in the prospectus supplement will be considered
as underwriters of the securities offered by the prospectus supplement.
We may distribute the securities at different
times in one or more transactions. We may sell the securities at fixed prices, which may change, at market prices prevailing at
the time of sale, at prices related to the prevailing market prices or at negotiated prices.
In connection with the sale of the securities,
underwriters may receive compensation from us or from purchasers of the securities in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of the securities may be deemed to be underwriters. Discounts
or commissions they receive and any profit on their resale of the securities may be considered underwriting discounts and commissions
under the Securities Act. We will identify any underwriter or agent, and we will describe any compensation, in the prospectus supplement.
We may agree to indemnify underwriters,
dealers and agents who participate in the distribution of the securities against certain liabilities, including liabilities under
the Securities Act.
We may authorize dealers or other persons
who act as our agents to solicit offers by certain institutions to purchase the securities from us under contracts which provide
for payment and delivery on a future date. We may enter into these contracts with commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and others. If we enter into these agreements concerning
any series of securities, we will indicate that in the prospectus supplement.
In connection with an offering of the securities,
underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. Specifically,
underwriters may over-allot in connection with the offering, creating a syndicate short position in the securities for their own
account. In addition, underwriters may bid for, and purchase, securities in the open market to cover short positions or to stabilize
the price of the securities. Finally, underwriters may reclaim selling concessions allowed for distributing the securities in the
offering if the underwriters repurchase previously distributed securities in transactions to cover short positions, in stabilization
transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent
market levels. Underwriters are not required to engage in any of these activities and may end any of these activities at any time.
Each series of securities (other than our
Class A common stock) offered will be a new issue of securities and will have no established trading market. The securities
(other than our Class A common stock) may or may not be listed on a national securities exchange. No assurance can be given
as to the existence of trading markets for any securities offered (other than with respect to our common stock) or the liquidity
of any securities offered.
INDEMNIFICATION OF OUR DIRECTORS AND
OFFICERS
Our Articles of Incorporation, as amended,
or Articles, provide that our directors are not liable to the Company or our shareholders for monetary damages for an act or omission
in their capacity as a director to the fullest extent provided by applicable Maryland law. A director may, however, be found liable
for:
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·
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acts or omissions not in good faith;
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·
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acts or omissions that are the result of active and deliberate dishonesty;
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·
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any transaction from which the director receives an improper benefit; and
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·
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acts or omissions that the director has reasonable cause to believe are unlawful.
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Our Articles also provide that we will indemnify
our directors and officers, and may indemnify our employees and agents, to the fullest extent permitted by applicable Maryland
law from any expenses, liabilities or other matters. To the extent that indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons, we have been advised that, in the opinion of the SEC,
this indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. Finally, our
ability to provide indemnification to our directors and officers is limited by federal banking laws and regulations.
LEGAL MATTERS
The validity of the securities offered pursuant
to this prospectus has been passed upon for us by Holland & Knight LLP, Washington, D.C. If legal matters in connection
with offerings made pursuant to this prospectus are passed upon by counsel for the underwriters, dealers or agents, if any, such
counsel will be named in the prospectus supplement relating to such offering.
EXPERTS
The consolidated financial statements incorporated
in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2019 have been so incorporated in reliance on the report of Crowe LLP, independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
* * *
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the expenses
we have incurred in connection with the offering of the securities being registered hereby. All amounts shown are estimates.
Registration Fee - Securities and Exchange Commission
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$
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16,365*
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Accounting Fees and Expenses
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**
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Legal Fees and Expenses
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**
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Printing Fees and Expenses
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**
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Miscellaneous
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**
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Total
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$
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**
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*See footnote 4 to the Calculation of Registration Fee
table on the cover page of this registration statement.
**These fees depend on the securities offered and the
number of issuances and cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers.
The Maryland General Corporation Law permits
a corporation to indemnify its present and former directors, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of
their services in those capacities, unless it is established that:
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(1)
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the act or omission of the director was material to the matter giving rise to such proceeding and
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A.
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was committed in bad faith or
|
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B.
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was the result of active and deliberate dishonesty;
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(2)
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the director actually received an improper personal benefit in money, property, or services; or
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(3)
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in the case of any criminal proceeding, the director had reasonable cause to believe that the act or omission was unlawful.
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Maryland law permits a corporation to indemnify
a present and former officer to the same extent as a director.
In addition to the foregoing, a court of
appropriate jurisdiction: (1) shall order indemnification of reasonable expenses incurred by a director who has been successful,
on the merits or otherwise, in the defense of any proceeding identified above, or in the defense of any claim, issue or matter
in the proceeding; and (2) may under certain circumstances order indemnification of a director or an officer who the court
determines is fairly and reasonably entitled to indemnification in view of all of the relevant circumstances, whether or not the
director or officer has met the standards of conduct set forth in the preceding paragraph or has been declared liable on the basis
that a personal benefit improperly received in a proceeding charging improper personal benefit to the director or the officer,
provided, however, that if the proceeding was an action by or in the right of the corporation or involved a determination that
the director or officer received an improper personal benefit, no indemnification may be made if the director or officer is adjudged
liable to the corporation, except to the extent of expenses approved by a court of appropriate jurisdiction.
The Maryland General Corporation Law also
permits a corporation to pay or reimburse, in advance of the final disposition of a proceeding, reasonable expenses incurred by
a present or former director or officer made a party to the proceeding by reason of his or her service in that capacity, provided
that the corporation shall have received:
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(1)
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a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary
for indemnification by the corporation; and
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(2)
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a written undertaking by or on behalf of the director or officer to repay the amount paid or reimbursed by the corporation
if it shall ultimately be determined that the standard of conduct was not met.
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The Corporation has provided for indemnification
of directors, officers, employees and agents in Article 9 of its Articles of Incorporation, as amended, or the Articles. This
provision of the Articles reads as follows:
(A) Personal
Liability of Directors. A director of the Corporation shall not be personally liable for monetary damages for any action taken,
or any failure to take any action, as a director except to the extent that by law a director’s liability for monetary damages
may not be limited.
(B) Indemnification.
The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, including actions by or in the right of the Corporation, whether civil, criminal, administrative
or investigative, by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgements, fines, excise taxes
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding
to the fullest extent permissible under Maryland law.
(C) Advancement
of Expenses. Reasonable expenses incurred by an officer, director, employee or agent of the Corporation in defending a civil
or criminal action, suit or proceeding described in Section B of this Article 9 may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that the person is not entitled to be indemnified by the Corporation.
(D) Other
Rights. The indemnification and advancement of expenses provided by or pursuant to this Article 9 shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any insurance
or other agreement, vote of stockholders or directors or otherwise, both as to actions in their official capacity and as to actions
in another capacity while holding an office, and shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and administrators of such person.
(E) Insurance.
The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have
power to indemnify him against such liability under the provisions of this Article 9.
(F) Security
Fund; Indemnity Agreements. By action of the Board of Directors (notwithstanding their interest in the transaction), the Corporation
may create and fund a trust fund or fund of any nature, and may enter into agreements with its officers, directors, employees
and agents for the purpose of securing or insuring in any manner its obligation to indemnify or advance expenses provided for
in this Article 9.
(G) Modification.
The duties of the Corporation to indemnify and to advance expenses to any person as provided in this Article 9 shall be in
the nature of a contract between the Corporation and each such person, and no amendment or repeal of any provision of this Article 9,
and no amendment or termination of any trust or other fund created pursuant to Section F of this Article 9, shall alter
to the detriment of such person the right of such person to the advance of expenses or indemnification related to a claim based
on an act or failure to act which took place prior to such amendment, repeal or termination.
(H) Proceedings
Initiated by Indemnified Persons. Notwithstanding any other provision of this Article 9, the Corporation shall not indemnify
a director, officer, employee or agent for any liability incurred in an action, suit or proceeding initiated (which shall not
be deemed to include counter-claims or affirmative defenses) or participated in as an intervener or amicus curiae by the person
seeking indemnification unless such initiation of or participation in the action, suit or proceeding is authorized, either before
or after its commencement, by the affirmative vote of a majority of the directors in office.
The Maryland General Corporation Law authorizes
a Maryland corporation to limit by provision in its articles of incorporation the liability of directors and officers to the corporation
or to its stockholders for money damages except to the extent:
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(1)
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the director or officer actually receives an improper benefit or profit in money, property, or services, for the amount of
the benefit or profit actually received, or
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(2)
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a judgment or other final adjudication adverse to the director or officer is entered in a proceeding based on a finding in
the proceeding that the director's or officer's action, or failure to act, was the result of active and deliberate dishonesty and
was material to the cause of action adjudicated in the proceeding.
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The Corporation has limited the liability
of its directors and officers for money damages in Article 9 of the Articles as noted above.
As permitted under Section 2-418(k) of
the Maryland General Corporation Law, the Corporation has purchased and maintains insurance on behalf of its directors and officers
against any liability asserted against such directors and officers in their capacities as such, whether or not the Corporation
would have the power to indemnify such persons under the provisions of Maryland law governing indemnification.
Item 16. Exhibits.
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*
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To be filed, if necessary, by amendment with a prospectus
supplement or as an exhibit to a Current Report on Form 8-K.
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Item 17. Undertakings.
(a) The undersigned registrant hereby
undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
(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 Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(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 (a)(1)(i),
(a)(1)(ii), and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 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.
(2) 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;
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(4) N/A;
(5) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus
was deemed part of and included in this registration statement; and
(ii) Each prospectus required to be
filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of this 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 this 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 this registration statement
relating to the securities in this 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 this registration statement or made in a document incorporated or deemed
incorporated by reference into this 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 this
registration statement or prospectus that was part of this registration statement or made in any such document immediately prior
to such effective date;
(6) 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.
(b) The undersigned registrant hereby
undertakes 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 section 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 will be deemed to be the initial bona fide
offering thereof.
(c)–(g) N/A.
(h) Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(i)-(k) N/A.
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 La Jolla, State of California, on December 3, 2020.
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SILVERGATE CAPITAL CORPORATION:
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By:
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/s/ Alan J. Lane
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Alan J. Lane
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President and Chief Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Alan J. Lane and John M. Bonino, and each of them (with full
power to each of them to act alone), 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 or 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 Securities and Exchange Commission, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on December 3, 2020.
/s/ Alan J. Lane
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/s/ Antonio Martino
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Alan J. Lane, President, Chief Executive Officer and Director
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Antonio Martino, Chief Financial Officer (Principal
Financial Officer and Principal Accounting Officer)
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/s/ Dennis S. Frank
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/s/ Robert C. Campbell
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Dennis S. Frank, Chairman of the Board of Directors
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Robert C. Campbell, Lead Director
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/s/ Paul D. Colucci
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/s/ Karen F. Brassfield
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Paul D. Colucci, Director
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Karen F. Brassfield, Director
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/s/ Scott A. Reed
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/s/ Thomas C. Dircks
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Scott A. Reed, Director
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Thomas C. Dircks, Director
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/s/ Michael Lempres
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/s/ Colleen Sullivan
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Michael Lempres, Director
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Colleen Sullivan, Director
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