EXHIBIT 4.3
[Face of Security]
THIS JUNIOR SUBORDINATED DEBENTURE IS A GLOBAL CERTIFICATE WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY.
THIS JUNIOR SUBORDINATED DEBENTURE IS EXCHANGEABLE FOR JUNIOR SUBORDINATED
DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE ONLY IN THE CIRCUMSTANCES DESCRIBED IN THE JUNIOR SUBORDINATED
INDENTURE AND NO TRANSFER OF THIS JUNIOR SUBORDINATED DEBENTURE (OTHER THAN A
TRANSFER OF THIS JUNIOR SUBORDINATED DEBENTURE AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS JUNIOR SUBORDINATED DEBENTURE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (55 WATER STREET, NEW YORK) TO SILICON
VALLEY BANCSHARES OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY JUNIOR SUBORDINATED DEBENTURE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
SILICON VALLEY BANCSHARES
8.25% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE JUNE 15, 2028
CUSIP NO.: 827064 AA 4
REGISTERED NO. 1 PRINCIPAL AMOUNT: $41,237,125
Silicon Valley Bancshares, a corporation organized and existing under
the laws of California (hereinafter called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Wilmington Trust Company, as
Property Trustee, for the benefit of Cede & Co., as the nominee of the
Depositary Trust Company and the registered owner of this Debenture, the
principal sum of $41,237,125 on June 15, 2028; provided that the Company may
shorten the Stated Maturity of the principal of this Security to a date not
earlier than June 15, 2003. The Company further promises to pay interest on
said principal sum from the date of original issuance or from the most recent
interest payment date (each such date, an "Interest Payment Date") on which
interest has been paid or duly provided for, quarterly (subject to deferral
as set forth herein) in arrears on the
15th day of March, June, September and December of each year commencing
September 15, 1998 at the rate of 8.25% per annum, until the principal hereof
shall have become due and payable, plus Additional Interest, if any, until
the principal hereof is paid or duly provided for or made available for
payment 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 rate of 8.25% per annum,
compounded quarterly. The amount of interest payable for any period shall be
computed on the basis of twelve 30-day months and a 360-day year. The amount
of interest payable for any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day months. In the
event that any date on which interest is payable on this Security is not a
Business Day, then a payment of the interest payable on such date will be
made on the next succeeding day which is a 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 the date the payment was originally payable. A
"Business Day" shall mean any day other than a Saturday or Sunday or a day on
which banking institutions in the State of California are authorized or
required by law or executive order to remain closed or on a day on which the
Corporate Trust Office of the Trustee, or the principal office of the
Property Trustee under the Trust Agreement (hereinafter referred to) is
closed for business. 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) is registered at the close of business on the
Regular Record Date for such interest installment, which shall be the next
Business Day preceding such Interest Payment Date. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either 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
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in
said Indenture.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Security to
defer payment of interest on this Security, at any time or from time to time,
for up to 20 consecutive quarterly interest payment periods with respect to
each deferral period (each an "Extension Period"), (during which Extension
Periods the Company shall have the right to make partial payments of interest
on any Interest Payment Date, and at the end of which the Company shall pay
all interest then accrued and unpaid (together with Additional Interest
thereon to the extent permitted by applicable law)); provided, however, that
no Extension Period shall extend beyond the Stated Maturity of the principal
of this Security; provided, further, that during any such Extension Period,
the Company shall not, and shall not permit any Subsidiary of the Company to,
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
capital stock (which includes common and preferred stock), (ii) make any
payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt security of the Company (including Securities
issued by the Company pursuant to the
Indenture other than the Securities represented by this certificate) that
ranks PARI PASSU with or junior in interest to this Security, (iii) make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiaries of the Company (if such guarantee ranks PARI
PASSU in all respects with or junior in interest to this Security) (other
than (a) dividends or distributions in capital stock of the Company (which
includes common 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
Silicon Valley Bancshares Guarantee related to the Trust Preferred Securities
issued by SVB Capital I, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees) or (iv) redeem, purchase or acquire
less than all of the Securities represented by this certificate or any of the
Preferred Securities. Prior to the termination of any such Extension Period,
the Company may further extend such Extension Period, provided that such
extension does not cause such Extension Period to exceed 20 consecutive
interest payment periods or to extend beyond the Stated Maturity. Upon the
termination of any such Extension Period and upon the payment of all amounts
then due on any Interest Payment Date, and subject to the foregoing
limitation, the Company may elect to begin a new Extension Period. No
interest shall be due and payable during an Extension Period except at the
end thereof. The Company shall give the Trustee, the Property Trustee and
the Administrative Trustees of SVB Capital I notice of its election to begin
any Extension Period at least one Business Day prior to the earlier of (i)
the date on which Distributions on the Trust Preferred Securities would be
payable except for the election to begin such Extension Period, (ii) the date
the Administrative Trustees are required to give notice to the New York Stock
Exchange, the Nasdaq National Market or other applicable stock exchange or
automated quotation system on which the Preferred Securities are then listed
or quoted or to holders of such Preferred Securities of the record date, or
(iii) the date such Distributions are payable, but in any event not less than
one Business Day prior to such record date. The Trustee shall give notice of
the Company's election to begin a new Extension Period to the holders of the
Preferred Securities. There is no limitation on the number of times that the
Company may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Trustee or at the office
of such paying agent or paying agents as the Company may designate from time
to time, maintained for that purpose in the United States, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made (i) by check mailed
to the address of the person entitled thereto as such address shall appear in
the Securities Register of (ii) by transfer to an account maintained by the
person entitled thereto, in immediately available funds, at such place and to
such account as may be designated by the Person entitled thereto as specified
in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, unsecured and will rank junior and subordinate and subject
in right of payments to the prior payment in full of all Senior and
Subordinated Debt, 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 Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided, and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes. Each Holder hereof, by his acceptance hereof, waives all
notice of the acceptance of the subordination provisions contained herein and
in the Indenture by each holder of Senior and Subordinated Debt, whether now
outstanding or hereafter incurred, and waives reliance by each such holder
upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
SILICON VALLEY BANCSHARES
By: /s/ John C. Dean
------------------------------
Name: John C. Dean
Title: President and Chief Executive
Officer
Attest:
By: A. Catherine Ngo
------------------------------
Name: A. Catherine Ngo
Title: Executive Vice President
and Secretary
This is one of the Securities referred to in the within mentioned
Indenture.
Dated: May 22, 1998
WILMINGTON TRUST COMPANY
as Trustee
By: /s/ Denise M. Geran
------------------------------
Authorized Officer
[Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under a Junior Subordinated Indenture, dated as of May 22, 1998
(herein called the "Indenture"), between the Company and Wilmington Trust
Company, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $41,237,125.
All terms used in this Security that are defined in the Indenture and in
the Amended and Restated Trust Agreement, dated as of May 22, 1998, as
amended (the "Trust Agreement"), for SVB Capital I among Silicon Valley
Bancshares, as Depositor, and the Trustees named therein, shall have the
meanings assigned to them in the Indenture or the Trust Agreement, as the
case may be.
The Company may at any time, at its option, on or after June 15, 2003,
and subject to the terms and conditions of Article XI of the Indenture, and
subject to the Company having received any necessary regulatory approval to
do so if then required under applicable capital guidelines or policies,
redeem this Security in whole at any time or in part from time to time,
without premium or penalty, at a redemption price equal to the accrued and
unpaid interest on the Security so redeemed to the Redemption Date, plus 100%
of the principal amount thereof.
Upon the occurrence and during the continuation of a Tax Event,
Investment Company Event or Capital Treatment Event, the Company may, at its
option, at any time within 90 days of the occurrence of such Tax Event,
Investment Company Event or Capital Treatment Event redeem this Security, in
whole but not in part, subject to the provisions of Section 11.7 and the
other provisions of Article XI of the Indenture, at a redemption price equal
to the accrued and unpaid interest on the Security so redeemed to the
Redemption Date, plus 100% of the principal amount thereof.
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the portion hereof not redeemed will be
issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose
of modifying in any manner the rights and obligations of the Company and of
the Holders of the Securities, with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Securities of each
series to be affected by such supplemental indenture. The Indenture also
contains provisions permitting Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange therefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series may declare the principal amount of all the
Securities of this series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided
that, in the case of the Securities of this series issued to Cede & Co. for
the benefit of SVB Capital I, if upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding
Securities of this series fails to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of
at least 25% in aggregate Liquidation Amount of the Trust Preferred
Securities then outstanding shall have such right by a notice in writing to
the Company and the Trustee; and upon any such declaration the principal
amount of and the accrued interest (including any Additional Interest) on all
the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the extent provided
in Article XIII of the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the
Indenture duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing and thereupon one or more new Securities of this series, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall
be made for any such registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of minimum denominations of $25 and any
integral multiples of $25 in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of this
series are exchangeable for a like aggregate principal amount of Securities
of such series of a different authorized denomination, as requested by the
Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and
local tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.