1
EXHIBIT 4.4
FORM OF SERIES A SUBORDINATED DEBENTURE CERTIFICATE
(FORM OF FACE OF SECURITY)
[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE
OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF
A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
1
2
HAMILTON BANCORP INC.
CUSIP No.: [_____________]
$[_________________]
Certificate No. [__]
[___]% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE December [__], 2028 Series A
Hamilton Bancorp Inc., a Florida corporation (the "Corporation," which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to [ ] or registered assigns,
the principal sum of $[_____________] Dollars on December [__], 2028 (the
"Maturity Date"), unless previously prepaid, and to pay interest on the
outstanding principal amount hereof from December [__], 1998, or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing March 31, 1999 at the rate of [___]% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of interest at the same rate per annum compounded quarterly ("Compounded
Interest"). The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year consisting of twelve 30-day months.
In the event that any date on which the principal of or interest on this
Security is payable is not a Business Day (as defined in the Indenture), then
the payment payable on such date will be made on the next succeeding day that
is a Business Day, except that if such next succeeding Business Day falls in
the next succeeding calendar year such payment shall be made on the immediately
preceding Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on such date.
Pursuant to the Indenture, in certain circumstances the Corporation will be
required to pay Additional Sums (as defined in the Indenture) with respect to
this Security.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of
business on the regular record date for such interest installment, which shall
be one Business Day prior to the relevant Interest Payment Date for Global
Securities and the 15th day of the month in which the relevant Interest Payment
Date falls for Definitive Securities. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
holders on such regular record date and may be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on a special record date to be fixed by the Debenture Trustee
for the payment of such defaulted interest, notice whereof shall be given to
the holders of Securities not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities
2
3
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
The principal of and interest (including Compounded Interest and
Additional Sums, if any) on this Security shall be payable at the office or
agency of the Debenture Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Corporation by (i) check mailed to
the holder at such address as shall appear in the Security Register or (ii)
transfer to an account maintained by the Person entitled thereto, provided that
proper written transfer instructions have been received by the relevant record
date. Notwithstanding the foregoing, so long as the holder of this Security is
the Property Trustee of Hamilton Capital Trust I, the payment of the principal
of and interest (including Compounded Interest and Additional Sums, if any) on
this Security will be made at such place and to such account as may be
designated by such Property Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Debenture Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Debenture Trustee
his or her attorney-in-fact for any and all such purposes. Each holder hereof,
by his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
or be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Debenture
Trustee.
The Corporation is treating the Securities as issued with original
issue discount. The Corporation will provide holders the issue price, the
amount of original issue discount, the issue date and the yield to maturity of
the Securities.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
3
4
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed and sealed this [___] day of [_________], 1998.
HAMILTON BANCORP INC.
By:
----------------------------------------------
Name:
Title:
Attest:
By:
--------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the [___]% Junior Subordinated Deferrable Interest
Debentures Series A of HAMILTON BANCORP INC. referred to in the
within-mentioned Indenture.
WILMINGTON TRUST COMPANY
not in its individual capacity but solely as Debenture Trustee
Dated: By:
-------- -----------------------------------------------------------
Authorized Signatory
4
5
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Corporation (herein
sometimes referred to as the "Securities"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture, dated as of December
[__], 1998 (the "Indenture"), duly executed and delivered between the
Corporation and Wilmington Trust Company, as Debenture Trustee (the "Debenture
Trustee"), to which Indenture reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Debenture Trustee, the Corporation and the holders of the Securities.
Upon the occurrence and continuation of a Special Event (as defined in
the Indenture) prior to [_________ ___], 2008 (the "Initial Optional Redemption
Date"), the Corporation shall have the right, at any time within 90 days
following the occurrence of such Special Event, to prepay this Security in
whole (but not in part) at the Prepayment Price. "Prepayment Price" shall mean,
with respect to any prepayment of this Security, an amount in cash equal to
100% of the principal amount to be prepaid plus any accrued and unpaid interest
(including Compounded Interest and Additional Sums, if any) thereon to the date
of such prepayment.
In addition, the Corporation shall have the right to prepay this
Security, in whole or in part, at any time on or after the Initial Optional
Redemption Date (an "Optional Prepayment"), at the Prepayment Price.
The Prepayment Price shall be paid prior to 12:00 noon, New York City
time, on the date of such prepayment or at such earlier time as the Corporation
determines, provided that the Corporation shall deposit with the Debenture
Trustee an amount sufficient to pay the Prepayment Price by 10:00 a.m., New
York City time, on the date such Prepayment Price is to be paid. Any prepayment
pursuant to this paragraph will be made upon not less than 30 days nor more
than 60 days' prior written notice.
If the Securities are only partially prepaid by the Corporation
pursuant to an Optional Prepayment, the particular Securities to be prepaid
shall be selected on a pro rata basis from the outstanding Securities not
previously called for prepayment; provided, however, that with respect to
Securityholders that would be required to hold Securities with an aggregate
principal amount of less than $10 but more than an aggregate principal amount
of zero as a result of such pro rata prepayment, the Corporation shall prepay
Securities of each such Securityholder so that after such prepayment such
Securityholder shall hold Securities either with an aggregate principal amount
of at least $10 or such Securityholder no longer holds any Securities and shall
use such method (including, without limitation, by lot) as the Corporation
shall deem fair and appropriate; provided, further, that any such proration may
be made on the basis of the aggregate principal amount of Securities held by
each Securityholder thereof and may be made by making such adjustments as the
Corporation deems fair and appropriate in order that only Securities in
denominations of $10 or integral multiples thereof shall be prepaid. In the
event of prepayment of this Security in part only, a new Security or Securities
for the portion hereof that has not been prepaid will be issued in the name of
the holder hereof upon the cancellation hereof.
5
6
Notwithstanding the foregoing, any prepayment of Securities by the
Corporation shall be subject to the receipt of any and all required regulatory
approvals.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Corporation and the
Debenture Trustee, with the consent of the holders of a majority in aggregate
principal amount of the Securities at the time outstanding (as defined in the
Indenture), to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of modifying in any manner the rights of the holders of the
Securities; provided, however, that no such supplemental indenture shall,
without the consent of each holder of Securities then outstanding and affected
thereby, (i) change the Maturity Date of any Security, or reduce the rate or
extend the time of payment of interest thereon (subject to Article XVI of the
Indenture), or reduce the principal amount thereof, or change any of the
prepayment provisions or make the principal thereof or any interest thereon
payable in any coin or currency other than U.S. dollars, or impair or affect
the right of any holder of Securities to institute suit for payment thereof, or
(ii) reduce the aforesaid percentage of Securities the holders of which are
required to consent to any such supplemental indenture. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the Securities at the time outstanding affected thereby, on behalf of
all of the holders of the Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default in the
payment of the principal of or interest on any of the Securities or a default
in respect of any covenant or provision under which the Indenture cannot be
modified or amended without the consent of each holder of Securities then
outstanding. Any such consent or waiver by the holder of this Security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Security and of any
Security issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of and interest
(including Compounded Interest and Additional Sums, if any) on this Security at
the time and place and at the rate and in the money herein prescribed.
So long as no Event of Default shall have occurred and be continuing,
the Corporation shall have the right, at any time and from time to time during
the term of the Securities, to defer payments of interest by extending the
interest payment period (an "Extended Interest Payment Period") of such
Securities for a period not (i) exceeding 20 consecutive quarterly periods,
including the first such quarterly period during such extension period, (ii)
extending beyond the Maturity Date of the Securities or (iii) ending on a date
other than an Interest Payment Date, at the end of which period the Corporation
shall pay all interest then accrued and unpaid (together with interest thereon
at the rate specified for the Securities to the extent that payment of such
interest is enforceable under
6
7
applicable law). Before the termination of any such Extended Interest Payment
Period, the Corporation may further defer payments of interest by further
extending such Extended Interest Payment Period, provided that such Extended
Interest Payment Period, together with all such previous and further extensions
within such Extended Interest Payment Period, (i) shall not exceed 20
consecutive quarterly periods including the first quarterly period during such
Extended Interest Payment Period, (ii) shall not end on any date other than an
Interest Payment Date, and (iii) shall not extend beyond the Maturity Date of
the Securities. Upon the termination of any such Extended Interest Payment
Period and the payment of all accrued and unpaid interest and any additional
amounts then due, the Corporation may commence a new Extended Interest Payment
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end thereof,
but the Corporation may prepay at any time all or any portion of the interest
accrued during an Extended Interest Payment Period.
The Corporation has agreed that if (1) there shall have occurred any
event of which the Corporation has actual knowledge that (a) is, or with the
giving of notice or the lapse of time, or both, would constitute, an Event of
Default and (b) in respect of which the Corporation shall not have taken
reasonable steps to cure, (2) if the Securities are held by the Property
Trustee of Hamilton Capital Trust I, the Corporation shall be in default with
respect to its payment of any obligations under the Capital Securities
Guarantee or (3) the Corporation shall have given notice of its election to
exercise its right to commence an Extended Interest Payment Period, and shall
not have rescinded such Notice, and such Extended Interest Payment Period or
any extension thereof shall have commenced and be continuing, it will not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the Corporation's capital
stock, (ii) make any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities (including other Debentures)
of the Corporation that rank pari passu with or junior in right of payment to
the Securities or (iii) make any guarantee payments with respect to any
guarantee by the Corporation of the debt securities of any Subsidiary of the
Corporation (including Other Guarantees) if such guarantee ranks pari passu
with or junior in right of payment to the Securities (other than (a) dividends
or distributions of Corporation's capital stock (which includes Common Stock
and preferred stock), (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Capital Securities Guarantee, as
defined in the Indenture, (d) as a result of a reclassification of the
Corporation's capital stock or the exchange or conversion of one class or
series of the Corporation's capital stock for another class or series of the
Corporation's capital stock, (e) the purchase of fractional interests in shares
of the Corporation's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
and (f) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Corporation's benefit or compensation plans for its
directors, officers or employees or any of the Corporation's dividend
reinvestment plans).
Subject to (i) the Corporation having received any required regulatory
approvals and (ii) the Administrative Trustees of Hamilton Capital Trust I
having received an opinion of counsel to the effect that such distribution will
not cause the holders of Capital Securities to recognize gain or loss for
federal income tax purposes, the Corporation will have the right at any time to
liquidate the Trust
7
8
and, after satisfaction of liabilities of creditors of the Trust as required by
applicable law, to cause the Securities to be distributed to the holders of the
Trust Securities in liquidation of the Trust.
The Securities are issuable only in registered form without coupons in
minimum denominations of $10 and multiples of $10 in excess thereof. As
provided in the Indenture and subject to the transfer restrictions limitations
as may be contained herein and therein from time to time, this Security is
transferable by the holder hereof on the Security Register of the Corporation,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in Wilmington, Delaware accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation
or the Debenture Trustee duly executed by the holder hereof or his or her
attorney duly authorized in writing, and thereupon one or more new Securities
of authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such registration of transfer, but the Corporation may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this
Security, the Corporation, the Debenture Trustee, any authenticating agent, any
paying agent, any transfer agent and the security registrar may deem and treat
the holder hereof as the absolute owner hereof (whether or not this Security
shall be overdue and notwithstanding any notice of ownership or writing hereon
made by anyone other than the security registrar for the Securities) for the
purpose of receiving payment of or on account of the principal hereof and
(subject to the Indenture) interest due hereon and for all other purposes, and
neither the Corporation nor the Debenture Trustee nor any authenticating agent
nor any paying agent nor any transfer agent nor any security registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest (including Compounded Interest and Additional Sums, if any) on this
Security, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture, against any incorporator, stockholder,
employee, officer or director, past, present or future, as such, of the
Corporation or of any predecessor or successor Person, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issuance hereof, expressly waived and
released.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES THEREOF.
8