As filed with the Securities and Exchange Commission on May 8, 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
COUNTY BANCORP, INC.
(Exact name of registrant as specified in its charter)
2400 S. 44th Street
Manitowoc, Wisconsin 54221
(920) 686-9998
Timothy J.
Schneider
President
2400 S. 44th Street
Manitowoc, Wisconsin 54221
(920) 686-9998
Copy to:
Robert
M. Fleetwood, Esq.
Abdul R. Mitha, Esq.
Barack Ferrazzano Kirschbaum & Nagelberg LLP
200 West Madison Street, Suite 3900
Chicago, Illinois 60606
(312) 984-3100
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the
only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☐
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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Smaller reporting company
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☒
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Emerging growth company
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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. ☐
CALCULATION OF REGISTRATION FEE
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Common Stock, $0.01 par value per share(2)
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Preferred Stock, $0.01 par value per share(2)
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Debt Securities(3)
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Warrants(4)
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Depositary Shares(5)
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Subscription Rights(6)
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Stock Purchase Contracts
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Stock Purchase Units
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Units
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TOTAL
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$100,000,000.00
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$12,980.00
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(1)
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Calculated in accordance with Rule 457(o) under the Securities Act of 1933. The proposed maximum offering price
per security will be determined from time to time by the registrant in connection with the issuance of the securities registered by this registration statement. The proposed maximum aggregate offering price has been estimated solely for the purpose
of calculating the registration fee. In no event will the maximum aggregate offering price of all securities issued under this registration statement exceed $100,000,000.00. The amount registered is not specified as to each class of securities to be
registered hereunder pursuant to General Instruction II.D. to Form S-3 under the Securities Act of 1933.
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(2)
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Shares of common stock or preferred stock may be issued in primary offerings, upon conversion of debt
securities or preferred stock registered hereby or upon the exercise of warrants or subscription rights to purchase preferred stock or common stock.
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(3)
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The debt securities registered hereunder will consist of one or more series of senior debt securities or
subordinated debt securities, or any combination thereof, as more fully described herein.
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(4)
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The warrants registered hereunder will be exercisable for common stock, preferred stock, depositary shares,
debt securities or other securities.
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(5)
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The depositary shares registered hereunder will be evidenced by depositary receipts issued pursuant to a
deposit agreement. If the registrant elects to offer to the public fractional interests in shares of preferred stock, then depositary receipts will be distributed to those persons purchasing the fractional interests and the shares will be issued to
the depositary under the deposit agreement.
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(6)
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The subscription rights registered hereunder will evidence the right to purchase common stock, preferred stock,
depositary shares, debt securities or other securities.
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The registrant hereby amends
this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may
determine.
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Debt
Securities
Warrants
Depositary Shares
Subscription Rights
Stock Purchase Contracts
Stock Purchase Units
Units
County Bancorp,
Inc., which we refer to as “we,” “us,” “our” or the “Company,” may offer and sell, at any time and from time to time, in one or more offerings, together or separately, any combination of the securities
described in this prospectus. The aggregate initial offering price of the securities that we offer will not exceed $100,000,000.
This
prospectus describes some of the general terms that may apply to these securities and the general manner in which they may be offered. Each time that we offer and sell securities using this prospectus, we will provide a supplement to this prospectus
that contains specific information about the securities and their terms and the manner in which we will offer them for sale. The prospectus supplement also may add or update information contained in this prospectus. You should carefully read this
prospectus and any supplement to this prospectus, as well as any documents we have incorporated into this prospectus by reference, before you invest in any of these securities. References herein to “prospectus supplement” are deemed to
refer to any pricing supplement or free writing prospectus describing the specific pricing or other terms of the applicable offering that we prepare and distribute.
We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous
or delayed basis. If an offering of securities involves any underwriters, dealers or agents, we will provide the names of any such underwriters, dealers or agents used in connection with the sale of any of these securities, as well as any fees,
commissions or discounts we may pay to such underwriters, dealers or agents in connection with the sale of these securities, in an applicable prospectus supplement.
Our common stock is listed on the NASDAQ Global Market under the symbol “ICBK”.
Our principal executive office is located at 2400 S. 44th Street, Manitowoc, Wisconsin,
and our telephone number is (920) 686-9998.
These securities are not bank deposits and are not
insured by the Federal Deposit Insurance Corporation or any other governmental agency, nor are they obligations of, or guaranteed by, a bank. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these
securities, in any state or jurisdiction where the offer or sale is not permitted.
Investing in
our securities involves risks. You should refer to the section entitled “Risk Factors” on page 3 of this prospectus, as well as the risk factors included in any applicable
prospectus supplement and certain of our periodic reports and other information that we file with the Securities and Exchange Commission, and carefully consider that information before buying our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This prospectus is
dated , 2020.
TABLE OF CONTENTS
Prospectus
i
About this Prospectus
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as the SEC,
using a shelf registration process. Under the shelf registration rules, we may sell from time to time, in one or more offerings, on a continuous or delayed basis, any combination of the securities described in this prospectus for an aggregate
offering price of up to $100,000,000. The registration statement that contains this prospectus (including the exhibits to the registration statement) contains additional information about us and the securities we are offering under this prospectus.
You can read that registration statement at the SEC website at http://www.sec.gov or at the SEC office mentioned under the heading “Where You Can Find More Information.”
This prospectus provides you with a general description of the securities we may offer. Each time we sell any of these securities, we will
provide one or more prospectus supplements that will contain specific information about the terms of that offering. Such prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus. If
there is any inconsistency between the information in this prospectus and an applicable prospectus supplement, you should rely on the information in the prospectus supplement. You should read this prospectus (including the documents incorporated by
reference) and any applicable prospectus supplement together with the additional information referred to under the heading “Where You Can Find More Information” before you invest.
You should rely only on the information contained or incorporated by reference in this prospectus and in any supplement to this prospectus. We
have not authorized anyone to provide you with different or additional information. We are not making an offer to sell or soliciting an offer to buy these securities in any jurisdiction in which the offer or solicitation is not authorized or in
which the person making the offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make the offer or solicitation. You should assume that the information contained or incorporated by reference in this prospectus or
any prospectus supplement is accurate as of its date only.
Any of the securities described in this prospectus and in a prospectus
supplement may be convertible or exchangeable into, or exercisable for, other securities that are described in this prospectus or will be described in a prospectus supplement, and may be issued separately, together or as part of a unit consisting of
two or more securities, which may or may not be separate from one another. The securities offered hereby may include new or hybrid securities developed in the future that combine features of any of the securities described in this prospectus.
The registration statement that contains this prospectus, including the exhibits to the registration statement, also contains additional
information about us and the securities offered under this prospectus. You can find the registration statement at the SEC’s website or at the SEC office mentioned under the heading “Where You Can Find More Information.”
Special Note Regarding Forward-Looking Statements
This prospectus, any related prospectus supplement and the documents we incorporate by reference in this prospectus and any related prospectus
supplement contain, and future oral and written statements of the Company and its management may contain, statements that constitute forward-looking statements within the meaning of the safe harbor provisions for forward-looking statements contained
in the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, which we refer to as the Securities Act, and Section 21E if the Securities Exchange Act of 1934, as amended, which we refer to
as the Exchange Act, with respect to the financial condition results of operations, plans, objectives, future performance and business of the Company. Forward-looking statements, which may be based upon beliefs, expectations and assumptions of the
Company’s management and on information available to management at the time the statements are made, can generally be identified by the use of words such as “estimate,” “project,” “predict,” “believe,”
“intend,” “anticipate,” “assume,” “plan,” “seek,” “expect,” “may,” “might,” “should,” “indicate,” “will,” “would,”
“could,” “contemplate,” “continue,” “intend,” “target” and words of similar meaning. These forward-looking statements are not historical facts and include statements of our goals, intentions,
expectations, business plans, and operating strategies.
Forward-looking statements are subject to significant risks and uncertainties, and our actual
results may differ materially from the results discussed in such forward-looking statements. The following factors, among others, could cause actual results to differ materially from the anticipated results or other expectations expressed in the
forward-looking statements:
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adverse changes in the economic conditions of our market area and of the agriculture market generally, dairy in
particular;
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adverse changes in the financial services industry and national and local real estate markets (including real
estate values);
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the effects of severe weather, natural disasters, acts of war or terrorism, widespread disease or pandemics
(including Coronavirus Disease 2019, which we refer to as COVID-19), or other external events that could cause economic deteriorations or instability in credit markets;
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competition among depository and other financial institutions, as well as fintech companies and other non-traditional competitors;
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risks related to a high concentration of dairy-related collateral located in our market area;
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credit risks of lending activities, including changes in the level and trend of loan delinquencies and write-offs
and the sufficiency of our allowance for loan losses and provision for loan losses;
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the failure of assumptions and estimates underlying the establishment of allowances for loan losses, including
the effects of the implementation of the Current Expected Credit Loss, which we refer to as CECL, accounting standard, and estimation of values of collateral and various financial assets and liabilities;
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interest rate risks associated with our business;
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fluctuations in the values of the securities held in our securities portfolio;
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changes in U.S. monetary and fiscal policies, the level and volatility of interest rates, the capital markets and
other market conditions that may affect, among other things, our liquidity, our net interest margin, our funding sources and the value of our assets and liabilities;
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our success in introducing new financial products;
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our ability to attract and maintain deposits;
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fluctuations in the demand for loans, which may be affected by numerous factors, including commercial conditions
in our market areas and by declines in the value of real estate in our market areas;
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changes in consumer spending, borrowing and saving habits that may affect deposit levels;
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costs or difficulties related to the integration of the business of acquired entities and the risk that the
anticipated benefits, cost savings and any other savings from such transactions may not be fully realized or may take longer than expected to realize;
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our ability to successfully enter new markets, capitalize on growth opportunities, execute or strategic plan, and
manage our growth;
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any negative perception of our reputation or financial strength;
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our ability to raise additional capital on acceptable terms when needed;
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changes in laws or government regulations or policies affecting financial institutions, including changes in
banking, consumer protection, securities, trade, and tax laws and regulations, and any increased costs of compliance with such laws and regulations;
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changes in accounting policies and practices, such as the implementation of the CECL accounting standard;
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our ability to attract and retain key members of our senior management team;
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our ability to successfully manage liquidity risk;
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the effectiveness of our risk management framework;
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the occurrence of fraudulent activity, breaches or failures of our information security controls or
cybersecurity-related incidents and our ability to identify and address such incidents;
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interruptions involving our information technology and telecommunications systems or third-party servicers;
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changes in benchmark interest rates used to price our loans and deposits, including the expected elimination of
the London Interbank Offered Rate;
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the extensive regulatory framework that applies to us and our compliance with governmental and regulatory
requirements relating to banking, consumer protection, securities and tax matters;
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rapid technological change in the financial services industry;
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the impact of any claims, legal actions, litigation, and other legal proceedings and regulatory actions against
us, including any effect on our reputation;
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the effect of tariffs, trade agreements, and other domestic or international governmental policies impacting the
value of the agricultural or other products of our borrowers;
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each of the factors and risks identified in the “Risk Factors” section included under Item 1A. of Part
I of our Annual Report on Form 10-K for the year ended December 31, 2019; and
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each of the factors and risks identified in the “Risk Factors” section included under Item 1A. of Part
II of our Quarterly Report on Form 10-Q for the quarter ended March 31, 2020.
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These statements are only current predictions and are subject to known and unknown risks, uncertainties and other factors that may cause our
or our industry’s actual results, levels of activity, performance or achievements to be materially different from those anticipated by the forward-looking statements. You should not rely upon forward-looking statements as predictions of future
events.
Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future
results, levels of activity, performance or achievements. Forward-looking statements are made only as of the date of this report, and the Company undertakes no obligation to update any forward-looking statements contained in this report to reflect
new information or events or conditions after the date hereof.
Risk Factors
An investment in our securities involves a high degree of risk. Before making an investment decision, you should carefully read and consider
the risk factors incorporated by reference in this prospectus, as well as those contained in any applicable prospectus supplement, as the same may be updated from time to time by our future filings with the SEC. You should also refer to other
information contained or incorporated by reference in this prospectus and any applicable prospectus supplement, including our financial statements and the related notes incorporated by reference herein. Our business, financial condition 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 and documents incorporated by
reference in this prospectus 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. Additional risks and uncertainties not known to us or that we deem immaterial may also materially and adversely affect our business and operations.
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County Bancorp, Inc.
The Company is a Wisconsin corporation founded in May of 1996 and is registered as a bank holding company under the Bank Holding Company Act of
1956, as amended, which we refer to as the BHCA. Our primary activities consist of holding the stock of our wholly-owned subsidiary bank, Investors Community Bank, which we refer to as the Bank, and providing a wide range of banking and related
business activities through the Bank and our other subsidiaries. At March 31, 2020, we had total assets of approximately $1.4 billion, deposits of $1.0 billion and shareholders’ equity of $165.0 million.
The Bank is a Wisconsin state bank originally chartered in 1997, and headquartered in Manitowoc, Wisconsin. The Bank is an independent
community bank offering a full range of financial services focusing on the needs of agricultural businesses statewide, with a primary focus on dairy-related lending with lending relationships in 56 of Wisconsin’s 72 counties. We also serve
business customers throughout Wisconsin but primarily are focused in northeastern and central Wisconsin. Our customers are served from our full-service branches in Manitowoc, Appleton, Green Bay, and Stevens Point, and our loan production offices in
Darlington, Eau Claire, Fond du Lac, and Sheboygan.
In addition to the Bank, we have three wholly-owned subsidiaries, County Bancorp
Statutory Trust II, County Bancorp Statutory Trust III, and Fox River Valley Trust I, which are Delaware statutory trusts. The Bank is the sole member of Investor Insurance Services, LLC and ABS 1, LLC, which are both Wisconsin limited liability
companies.
The Bank provides a wide range of consumer and commercial banking services to individuals, businesses, and industries. The
basic services offered by the Bank include: demand interest bearing and noninterest bearing accounts, money market deposit accounts, NOW accounts, time deposits, mobile banking, remote merchant deposit capture, internet banking, cash management
services, safe deposit services, credit cards, debit cards, direct deposits, notary services, night depository, cashier’s checks, drive-in tellers, banking by mail, and certain consumer loans, both
collateralized and uncollateralized. In addition, the Bank makes secured and unsecured commercial loans as well as loans secured by residential and commercial real estate, and issues stand-by letters of
credit. The Bank provides access to ATM cards and is a member of the Pulse and Cirrus ATM networks thereby enabling customers to utilize the convenience of ATM access nationwide and internationally.
Our principal executive office is located at 2400 S. 44th Street, Manitowoc, Wisconsin,
and our telephone number is (920) 686-9998.
Additional information about us is included in our
filings with the SEC, which are incorporated by reference into this prospectus. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” in this prospectus.
Use of Proceeds
Unless an applicable prospectus supplement states otherwise, we will use the net proceeds we receive from the sale of the securities offered
hereby for general corporate purposes, which may include, among other things, investments in or advances to our subsidiaries, working capital, capital expenditures, stock repurchases, debt repayment or the financing of possible acquisitions. The
applicable prospectus supplement relating to a particular offering of securities by us will identify the particular use of proceeds for that offering. Until we use the net proceeds from an offering, we may place the net proceeds in temporary
investments or hold the net proceeds in deposit accounts at the Bank or another depository institution.
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Description of Securities We May Offer
This prospectus contains summary descriptions of the common stock, preferred stock, debt securities, warrants, depositary shares, subscription
rights, stock purchase contracts, stock purchase units and units that we may offer and sell from time to time. When one or more of these securities are offered in the future, a prospectus supplement will explain the particular terms of the
securities and the extent to which these general provisions may apply. These summary descriptions and any summary descriptions in any applicable prospectus supplement do not purport to be complete descriptions of the terms and conditions of each
security and are qualified in their entirety by reference to our Third Amended and Restated Articles of Incorporation, which we refer to as our Articles of Incorporation, our Third Amended and Restated Bylaws, which we refer to as our Bylaws, the
Wisconsin Business Corporation Law, which we refer to as the WBCL, and any other documents referenced in such summary descriptions and from which such summary descriptions are derived. If any particular terms of a security described in an applicable
prospectus supplement differ from any of the terms described in this prospectus, then the terms described in this prospectus will be deemed superseded by the terms set forth in that prospectus supplement.
We may issue securities in book-entry form through one or more depositaries, such as The Depository Trust Company, Euroclear or Clearstream,
named in the applicable prospectus supplement. Each sale of a security in book-entry form will settle in immediately available funds through the applicable depositary, unless otherwise stated. We will issue the securities in registered form, without
coupons, although we may issue the securities in bearer form if so specified in an applicable prospectus supplement. If any securities are to be listed or quoted on a securities exchange or quotation system, an applicable prospectus supplement will
say so.
Description of Capital Stock
The following is a summary of the material terms, limitations, voting powers and relative rights of our capital stock as contained in our
Articles of Incorporation, which is incorporated by reference herein. This summary does not purport to be a complete description of the terms and conditions of our capital stock in all respects and is subject to and qualified in its entirety by
reference to our Articles of Incorporation, our Bylaws, the WBCL and any other documents referenced in the summary descriptions and from which the summary descriptions are derived. Although we believe this summary covers the material terms and
provisions of our capital stock set forth in our Articles of Incorporation, it may not contain all of the information that is important to you.
Authorized Shares of Capital Stock
Our
Articles of Incorporation provide that we are authorized to issue, without shareholder action, a total of 50,000,000 shares of common stock, par value $0.01 per share, and 600,000 shares of preferred stock, par value $0.01 per share. Our Articles of
Incorporation currently designate 15,000 shares of preferred stock as Series B Nonvoting Noncumulative Perpetual Preferred Stock, which we refer to as the Series B Preferred Stock, and 585,000 shares of preferred stock are not classified. As of
March 31, 2020, we had 7,196,360 shares of common stock issued and 6,496,790 shares of common stock outstanding and 8,000 shares of Series B Nonvoting Noncumulative Perpetual Preferred Stock issued and outstanding.
Common Stock
General. Our common stock is listed for trading on the Nasdaq Global Market under the symbol “ICBK.”
Rights and Preferences. Holders of the Company’s common stock have no preemptive, conversion or subscription rights,
and there are no redemption or sinking fund provisions applicable to the Company’s common stock. The rights, preferences and privileges of the holders of the Company’s common stock are subject to and may be adversely affected by the rights
of the holders of shares of any series of the Company’s preferred stock that the Company may designate in the future and the Series B Preferred Stock.
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Fully Paid and Nonassessable. All outstanding shares of the Company common
stock are fully paid and non-assessable.
Voting Rights. Each
share of common stock is entitled to one vote per share on all matters with respect to which shareholders are entitled to vote. Under the Company’s Articles of Incorporation and the WBCL, shareholder approval is required for various matters,
including the election of directors, and other “extraordinary” corporate decisions and transactions, such as the amendment of the Articles of Incorporation to authorize additional shares of common stock or to make certain changes to the
corporate name, a merger with another company, the dissolution of the Company, or a sale of substantially all of the Company’s assets. The Company’s Articles of Incorporation and Bylaws provide for a classified board of directors
consisting of three classes, as nearly equal as possible, with each class serving staggered three-year terms.
Liquidation
Rights. In the event of the liquidation or dissolution of the Company (whether voluntary or involuntary), each holder of common stock would be entitled to recover, after payment of all of the Company’s debts and
liabilities, and subject to any liquidation preferences established for any shares of preferred stock that are outstanding or might be issued in the future, a pro rata portion of all assets of the Company available for distribution to holders of
common stock.
Dividend Rights. Subject to the rights and preferences of any shares of preferred stock that have been
issued or might be issued in the future, holders of shares of common stock are entitled to receive such dividends as may be declared by the board of directors out of funds legally available for that purpose.
Series B Nonvoting Noncumulative Perpetual Preferred Stock
Voting Rights. Shares of Series B Preferred Stock are not entitled to any voting rights, except for those voting rights that may
not be denied under the WBCL. Under the WBCL, Series B Preferred Stock would be entitled to vote on, among other items, increases and decreases in the number of authorized shares of Series B Preferred Stock, any change that is prejudicial to the
holders of outstanding Series B Preferred Stock, and any exchange or reclassification of all or part of the shares of Series B Preferred Stock into shares of another class.
Dividends. Shares of Series B Preferred Stock are entitled to non-cumulative dividends
equal to the sum of the “Prime rate” (the highest quoted base rate on corporate loans at large U.S. money center commercial banks) and 0.50%, but in no case will the dividend rate be less than 4.00% per annum. Dividends payable with
respect to Series B Preferred Stock have no preference in right of payment over dividends payable with respect to common stock or any other class or series of the Company’s capital stock.
Liquidation and Rank. In the event of a liquidation, dissolution, or winding up of the Company (whether voluntary or
involuntary), holders of shares of Series B Preferred Stock would be entitled to receive $1,000 per share of Series B Preferred Stock, plus any declared but unpaid dividend from the preceding quarter, and any unpaid and accumulated quarterly
dividend prorated from the first day of the calendar quarter in which the liquidation, dissolution, or winding up occurs to the effective date of such liquidation or dissolution. Shares of Series B Preferred Stock are entitled to this payment upon
liquidation or dissolution before any payment can be made or any assets distributed to the holders of common stock or any other class or series of the Company’s capital stock.
Conversion. Each share of Series B Preferred Stock is convertible into share(s) of common stock upon the occurrence of one of
two events: (i) the Company fails to pay a quarterly dividend in full within 15 calendar days of the applicable payment date on eight separate occasions, or (ii) the Company pays a dividend on any other class or series of common or
preferred stock after it has omitted payment of four dividends on the Series B Preferred Stock. The conversion feature on the Series B Preferred Stock is triggered regardless of whether: (i) the omitted dividends occur with respect to
consecutive or non-consecutive payment dates; or (ii) subsequent to the 15th calendar day referred to in this paragraph the Company pays such dividend. When converted, each share of
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Series B Preferred Stock will be exchanged for that number of shares of common stock having an aggregate value equal to the sum of: (i) $1,000; (ii) any declared but unpaid dividend from the
preceding quarter; and (iii) the unpaid and accumulated quarterly dividend prorated from the first day of the calendar quarter in which the conversion right was exercised to the issuance of the common stock. For purposes of converting Series B
Preferred Stock, the per-share value of the common stock would be the most recent per-share appraised value of the common stock on an undiluted basis. However, if no
appraisal has been performed within the 18 months next preceding the date of valuation, then the per share value of the common stock is calculated by multiplying the ratio that the most recent per-share
appraised value bears to per-share book value as of the date of such appraisal, by per share book value based on the Company’s audited financial statements as of the
year-end next preceding the year in which the valuation occurs. Any holder of Series B Preferred Stock who exercises conversion rights is required to exercise such rights as to all of the holder’s shares
of Series B Preferred Stock. However, the amount of common stock issued to any individual can never exceed 10% or more of the then-issued and outstanding shares of common stock, unless any required regulatory approval is obtained; provided, however,
that in lieu of seeking and obtaining such regulatory approval, such holder of Series B Preferred Stock may elect to convert only a portion of the share of Series B Preferred Stock held, and shall retain ownership of the remainder and have an
ongoing right to exercise the conversion right to those remaining shares of Series B Preferred Stock.
Redemption. Subject
to approval by the Federal Reserve, but otherwise at the Company’s election and in the Company’s exclusive discretion, the Company has the right to redeem any or all of the shares of Series B Preferred Stock upon 30 days’ prior
written notice to the holder(s) of such shares. Upon redemption, each share of Series B Preferred Stock would be exchanged for: (i) one-thousand dollars ($1,000); plus (ii) any declared but unpaid
quarterly dividend; plus (iii) the unpaid and accumulated quarterly dividend prorated for the then current calendar quarter.
Fully Paid and Non-Assessable. The outstanding shares of Series B Preferred
Stock are fully paid and non-assessable.
Preferred Stock—Not Classified
General. The unclassified preferred stock may be issued in one or more series and with such terms and conditions, at such times
and for such consideration as our board of directors may determine. Our board of directors, without further approval of our shareholders, has the authority to fix the dividend rights and terms, conversion rights, voting rights, redemption rights and
terms, liquidation preferences, sinking funds and any other rights, preferences, privileges and restrictions applicable to each series of preferred stock. The issuance of preferred stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes, could, among other things, adversely affect the voting power of the holders of our common stock.
We will describe the particular terms of any series of preferred stock being offered in the applicable prospectus supplement relating to that
series of preferred stock. Those terms may include:
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the number of shares being offered;
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the title and liquidation preference per share;
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the dividend rate or method for determining that rate;
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the dates on which dividends will be paid;
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whether dividends will be cumulative or noncumulative and, if cumulative, the dates from which dividends will
begin to accumulate;
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any applicable redemption or sinking fund provisions;
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any applicable conversion provisions;
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whether we have elected to offer depositary shares with respect to that series of preferred stock; and
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any additional dividend, liquidation and other rights and restrictions applicable to that series of preferred
stock.
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The shares of preferred stock will, when issued against full payment of their purchase price, be fully paid and
nonassessable.
Dividend Rights. If you purchase preferred stock being offered by use of this prospectus and an applicable
prospectus supplement, you will be entitled to receive, when, as and if declared by our board of directors, dividends at the rates and on the dates set forth in that prospectus supplement. Dividend rates may be fixed, variable or both. The nature,
amount, rates, timing and other details of dividend rights for a series of preferred stock will be described in the applicable prospectus supplement for such series of preferred stock and will be payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of our stock, as described in such applicable prospectus supplement. We are subject to various regulatory policies and requirements relating to the payment of dividends, including
requirements to maintain adequate capital above regulatory minimums.
Voting Rights. The voting rights of preferred stock of
any series being offered will be described in the applicable prospectus supplement for such series of preferred stock.
Liquidation
Rights. In the event that we liquidate, dissolve or wind-up our affairs, either voluntarily or involuntarily, holders of our preferred stock will be entitled to receive liquidating distributions
in the amount set forth in an applicable prospectus supplement, plus accrued and unpaid dividends, if any, before we make any distribution of assets to the holders of our common stock or any junior preferred stock. If we fail to pay in full all
amounts payable with respect to preferred stock being offered by us and any stock having the same rank as that series of preferred stock, the holders of the preferred stock and of that other stock will share in any distribution of assets in
proportion to the full respective preferential amounts to which they are entitled. After the holders of each series of preferred stock and any stock having the same rank as the preferred stock are paid in full, they will have no right or claim to
any of our remaining assets. For any series of preferred stock being offered by this prospectus and an applicable prospectus supplement, neither the sale of all or substantially all of our property or business nor a merger or consolidation by us
with any other corporation will be considered a dissolution, liquidation or winding-up of our business or affairs.
Redemption. The terms, if any, on which shares of a series of preferred stock being offered may be redeemed will be described in
an applicable prospectus supplement. The preferred stock of a series may be redeemed in such amount or amounts, and at such time or times, if any, as may be provided in respect of that particular series of preferred stock. Preferred stock may be
redeemed by the Company only to the extent legally permissible.
Conversion Rights. The applicable prospectus
supplement for a particular series of preferred stock will state the terms, if any, on which shares of a series of preferred stock being offered are convertible into shares of our common stock or another series of our preferred stock.
Anti-Takeover Provisions
General. Certain provisions of the Company’s Articles of Incorporation and Bylaws and of the WBCL
discussed below may delay or make more difficult acquisitions or changes of control of the Company unless they are approved by the board of directors. These provisions could have the effect of discouraging third parties from making proposals which
shareholders may otherwise consider to be in their best interests. These provisions may also make it more difficult for third parties to replace the Company’s current management without the concurrence of the board of directors. Management of
the Company may consider proposing additional provisions, either by way of amendments to the Articles of Incorporation or Bylaws, or otherwise, for adoption at
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a shareholders’ meeting, which could contain further limitations on unsolicited takeover attempts. The Company presently has no proposals under consideration for additional antitakeover
provisions.
Articles of Incorporation; Bylaws. These provisions of our Articles of Incorporation and our Bylaws include the
following:
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Number of Directors; Vacancies; Removal. The Company’s board of directors is divided into
three classes serving staggered three-year terms. As a result, at least two shareholders’ meetings will generally be required for shareholders to change a majority of the directors. The board of directors is authorized to create new
directorships and to fill the positions it creates. The board of directors (or its remaining members, even though less than a quorum) is also empowered to fill vacancies on the board of directors occurring for any reason. Any director appointed to
fill a vacancy or to a newly created directorship will hold office until the next election for the class of directors to which the new director has been appointed. Shareholders may remove directors for cause at a special shareholders’ meeting
called for that purpose at which a quorum is present and a majority of the votes are cast in favor of removal of the director. These provisions of the Bylaws could prevent shareholders from removing incumbent directors without cause and filling the
resulting vacancies with their own nominees;
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Limitations on Right to Call Special Meetings; Shareholder Proposal Notice Requirements. The
Company’s Bylaws provide that shareholders may act at a meeting of shareholders. The chairman of the board, the president or the board of directors may call special meetings of shareholders and are required to call special meetings upon written
demand by holders of common stock with at least 10% of the votes entitled to be cast at the special meeting. Additionally, our Bylaws require that shareholder proposals meet certain advanced notice and minimum informational requirements. These
provisions could have the effect of delaying until the next annual shareholders’ meeting shareholder actions which are favored by the holders of a majority of our outstanding voting securities;
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Amendments to the Articles of Incorporation. The WBCL allows amendments to the Articles of Incorporation
at any time to add or change a provision that is required or permitted to be included in a corporation’s articles of incorporation or to delete a provision that is not required to be included in the articles of incorporation. The board of
directors may propose one or more amendments to the Company’s Articles of Incorporation for submission to shareholders and may condition its submission of the proposed amendment on any basis if the board of directors notifies each shareholder,
whether or not entitled to vote, of the related shareholders’ meeting and includes certain information regarding the proposed amendment in that meeting notice;
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Amendments to the Bylaws. The shareholders may amend or repeal the existing Bylaws and adopt new bylaws by
a majority vote of the shareholders in attendance and constituting a quorum at a shareholders’ meeting. The Bylaws also provide that the board of directors may amend or repeal the existing Bylaws and adopt new bylaws by the vote of at least a
majority of the directors present at a meeting at which a quorum is present. However, the board of directors may not amend, repeal or readopt any bylaw adopted by shareholders if that bylaw so provides, and the board of directors may not amend or
repeal a bylaw adopted or amended by shareholders that fixes a greater or lower quorum requirement or a greater voting requirement for the board of directors than otherwise is provided in the WBCL, unless the bylaws expressly provide that it may be
amended or repealed by a specified vote of the board of directors. Further, a bylaw that fixes a greater or lower quorum requirement or a greater voting requirement for shareholders or voting groups of shareholders than otherwise is provided in the
WBCL may not be adopted, amended or repealed by the board of directors. Action by the board of directors that changes the quorum or voting requirement for the board of directors must meet the same quorum requirement and be adopted by the same vote
required to take action under the quorum and voting requirement then in effect, except where a different voting requirement is specified in the bylaws. In addition, the board of directors may not amend, alter or repeal a bylaw if the Articles of
Incorporation, the particular bylaw or the WBCL reserve this power exclusively to the shareholders; and
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Authorized Shares of Capital Stock. Authorized but unissued shares of our common stock and preferred stock
under our Articles of Incorporation could (within the limits imposed by applicable law and Nasdaq Marketplace Rules) be issued in one or more transactions that could make a change of control of us more difficult, and therefore more unlikely. The
additional authorized shares could be used to discourage persons from attempting to gain control of us by diluting the voting power of shares then outstanding or increasing the voting power of persons who would support the board of directors in a
potential takeover situation, including by preventing or delaying a proposed business combination that is opposed by the board of directors although perceived to be desirable by some shareholders.
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Wisconsin Law. The Company is subject to Sections 180.1140 to 180.1144 of the WBCL, which prohibit a Wisconsin
corporation from engaging in a “business combination” with an interested shareholder for a period of three years following the interested shareholder’s stock acquisition date, unless before such date, the board of directors of the
corporation approved either the business combination or the purchase of stock made by the interested shareholder on that stock acquisition date.
The Company may engage in a business combination with an interested shareholder after the expiration of the three-year period with respect to
such shareholder only if one or more of the following is satisfied:
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the Company’s board of directors approved the acquisition of stock before such shareholder’s
acquisition date;
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the business combination is approved by a majority of the outstanding voting stock not beneficially owned by such
shareholder; or
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the consideration to be received by shareholders meets certain fair price requirements of the statute with
respect to form and amount.
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Section 180.1140 defines a business combination between a “resident domestic
corporation” and an “interested stockholder” to include the following:
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a merger or share exchange with an interested stockholder or a corporation that is, or after the merger or share
exchange would be, an affiliate or associate of an interested shareholder;
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a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets to or with an interested
stockholder or affiliate or associate of an interested stockholder equal to 5% or more of the aggregate market value of the assets or outstanding stock of the resident domestic corporation or 10% of its earning power or income;
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the issuance or transfer of stock or rights to purchase stock with an aggregate market value equal to 5% or more
of the outstanding stock of the resident domestic corporation; and
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certain other transactions involving an interested stockholder.
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Section 180.1140(8)(a) defines an “interested stockholder” as a person who beneficially owns, directly or indirectly, at least
10% of the voting power of the outstanding voting stock of a resident domestic corporation or who is an affiliate or associate of the resident domestic corporation and beneficially owned at least 10% of the voting power of the then outstanding
voting stock within the last three years.
Section 180.1140(9)(a) defines a “resident domestic corporation” as a Wisconsin
corporation that, as of the relevant date, satisfies any of the following: (i) its principal offices are located in Wisconsin; (ii) it has significant business operations located in Wisconsin; (iii) more than 10% of the holders of
record of its shares are residents of Wisconsin; or (iv) more than 10% of its shares are held of record by residents in Wisconsin. The Company is a resident domestic corporation for purposes of these statutory provisions.
Wisconsin Fair Price Statute. Sections 180.1130 to 180.1133 of the WBCL provide that certain mergers, share exchanges or sales, leases,
exchanges or other dispositions of assets in a transaction involving a “significant
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shareholder” require a supermajority vote of shareholders in addition to any approval otherwise required, unless shareholders receive a fair price for their shares that satisfies a statutory
formula. A “significant shareholder” for this purpose is defined as a person or group who beneficially owns, directly or indirectly, 10% or more of the voting stock of the corporation, or is an affiliate of the corporation and beneficially
owned, directly or indirectly, 10% or more of the voting stock of the corporation within the last two years. Any business combination to which the statute applies must be approved by 80% of the voting power of the corporation’s stock and at
least two-thirds of the voting power of the corporation’s stock not beneficially owned by the significant shareholder who is a party to the relevant transaction or any of its affiliates or associates, in
each case voting together as a single group, unless the following standards have been met:
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the aggregate value of the per share consideration is at least equal to the highest of:
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the highest per share price paid for any shares of the same class of common stock of the corporation by the
significant shareholder either in the transaction in which it became a significant shareholder or within two years before the date of the business combination, whichever is higher;
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the market value per share of the same class of the corporation’s common stock on the date of commencement
of any tender offer by the significant shareholder, the date on which the person became a significant shareholder or the date of the first public announcement of the proposed business combination, whichever is higher; or
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the highest preferential amount per share of the same class or series of common stock in a liquidation or
dissolution to which holders of the shares would be entitled; and
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either cash, or the form of consideration used by the significant shareholder to acquire the largest number of
shares, is offered.
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Wisconsin Control Share Voting Restrictions Statute. Pursuant to Section 180.1150 of
the WBCL, unless otherwise provided in the articles of incorporation or otherwise specified by the board of directors, the voting power of shares of a resident domestic corporation held by any person, including shares issuable upon conversion of
convertible securities or upon exercise of options or warrants, in excess of 20% of the voting power in the election of directors is limited to 10% of the full voting power of those shares. The Company is governed by the provisions of this section
because neither the Company’s Articles of Incorporation, nor any resolution adopted by the Company’s board of directors, provides or specifies otherwise.
Wisconsin Defensive Action Restrictions. Section 180.1134 of the WBCL provides that, in addition to the vote otherwise required by
law or the articles of incorporation of a resident domestic corporation, the approval of the holders of a majority of the shares entitled to vote on the proposal is required before such corporation can take certain actions while a takeover offer is
being made or after a takeover offer has been publicly announced and before it is concluded. This statute requires shareholder approval for the corporation to do either of the following: (i) acquire more than 5% of its outstanding voting shares
at a price above the market value from any individual or organization that owns more than 3% of the voting shares and has held such shares for less than two years, unless the resident domestic corporation makes at least an equal offer to acquire all
voting shares and all securities that may be converted into voting shares; or (ii) sell or option assets of the resident domestic corporation that amount to at least 10% of the market value of the resident domestic corporation, unless the
corporation has at least three directors who are not officers or employees of the resident domestic corporation and a majority of the directors who are not officers or employees of the resident domestic corporation vote not to have this provision
apply to the resident domestic corporation. The Company has more than three directors who are not officers or employees of the Company.
Constituency or Stakeholder Provision. Pursuant to Section 180.0827 of the WBCL, in discharging his or her duties to the Company
and in determining what he or she believes to be in the Company’s best interests, a director or officer may, in addition to considering the effects of any action on shareholders, consider the effects of the action on employees, suppliers,
customers, the communities in which the Company operates and any other factors that the director or officer considers pertinent.
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Banking Laws. The ability of a third party to acquire our stock is also
limited under applicable U.S. banking laws, including regulatory approval requirements. The BHCA requires any “bank holding company” to obtain the approval of the Federal Reserve before acquiring, directly or indirectly, more than 5% of
our outstanding common stock. Any person other than a bank holding company is required to obtain prior approval of the Federal Reserve to acquire 10% or more of our common stock under the Change in bank Control Act of 1978. Federal law also
prohibits any person or company from acquiring “control” of an FDIC-insured depository institution or its holding company without prior notice to the appropriate federal bank regulator. “Control” is conclusively presumed to exist
upon the acquisition of 25% or more of the outstanding voting securities of a bank or bank holding company but may arise under certain circumstances between 10% and 24.99% ownership. For purposes of calculating ownership thresholds under these
banking regulations, bank regulators would likely at least take the position that the minimum number of shares, and could take the position that the maximum number of shares, of the Company’s common stock that a holder is entitled to receive
pursuant to securities convertible into or settled in the Company’s common stock, including pursuant to the Company’s warrants to purchase the Company’s common stock held by such holder, must be taken into account in calculating a
shareholder’s aggregate holdings of the Company’s common stock.
Sole and Exclusive Forum
Our Bylaws provide that, unless we consent in writing to an alternative forum, the courts of the State of Wisconsin shall be the sole and
exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee, or agent of the Company to the Company
or the Company’s shareholders, (iii) any action asserting a claim arising pursuant to any provision of the WBCL, the Articles of Incorporation or the Bylaws of the Company, or (iv) any action asserting a claim governed by the internal
affairs doctrine, in each case subject to said courts having personal jurisdiction over the indispensable parties named as defendants therein. However, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought
to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act or any
other claim for which the federal courts have exclusive jurisdiction. In addition, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by
the Securities Act or the rules and regulations thereunder. As a result, there is uncertainty as to whether a court would enforce such a provision, and our shareholders will not be deemed to have waived our compliance with the federal securities
laws and the rules and regulations thereunder.
Any person or entity purchasing or otherwise acquiring any interest in any shares of our
capital stock shall be deemed to have notice of and to have consented to this provision of our Bylaws. The exclusive forum provision, if enforced, may limit a shareholder’s ability to bring a claim in a judicial forum that it finds favorable
for disputes with us or our directors, officers or other employees, which may discourage such lawsuits. The enforceability of similar exclusive forum provisions in other companies’ charter documents has been challenged in legal proceedings, and
it is possible that, in connection with one or more actions or proceedings described above, a court could find the provision of our Bylaws to be inapplicable or unenforceable.
Description of Debt Securities
General
The debt securities that we may
offer using this prospectus consist of notes, debentures or other evidences of indebtedness. Any debt securities that we offer and sell will be our direct obligations. Debt securities may be issued in one or more series. All debt securities of any
one series need not be issued at the same time, and unless otherwise provided, a series of debt securities may be reopened, without the consent of the holders of outstanding debt securities, for issuance of additional debt securities of that series
or to establish additional terms of that series of debt securities (with such additional terms applicable only to unissued or additional debt securities of
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that series). As required by the Trust Indenture Act of 1939, as amended, for all debt securities that are publicly offered, our debt securities will be governed by a document called an
indenture. The form of indenture is subject to any amendments or supplements that we may enter into with the trustee(s) setting forth the specific terms and conditions of the debt securities being issued. The indenture is filed as an exhibit to the
registration statement of which this prospectus forms a part. The material terms of the indenture are summarized below and we refer you to the indenture for a detailed description of these material terms. Additional or different provisions that are
applicable to a particular series of debt securities will, if material, be described in a prospectus supplement relating to the offering of debt securities of that series. These provisions may include, among other things and to the extent
applicable, the following:
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the title of the debt securities, including, as applicable, whether the debt securities will be issued as senior
debt securities, senior subordinated debt securities, subordinated debt securities or junior subordinated debt securities, and any subordination provisions particular to the series of debt securities;
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any limit on the aggregate principal amount of the debt securities;
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if other than 100% of the aggregate principal amount, the percentage of the aggregate principal amount at which
we will sell the debt securities (i.e., original issuance discount);
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the date or dates, whether fixed or extendable, on which the principal of the debt securities will be payable;
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the rate or rates, which may be fixed or variable, 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 we will pay any such interest, the basis upon which interest will be calculated if other than that of a 360-day year
consisting of twelve 30-day months, and, in the case of registered securities, the record dates for the determination of holders to whom interest is payable;
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any provisions relating to the issuance of the debt securities of the series at an original issue discount;
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the place or places where the principal of, and any premium or interest on, the debt securities will be payable
and, if applicable, where the debt securities may be surrendered for conversion or exchange;
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whether we may, at our option, redeem, repurchase or repay the debt securities, and if so, the price or prices at
which, the period or periods within which, and the terms and conditions upon which, we may redeem, repurchase or repay the debt securities, in whole or in part, pursuant to any sinking fund or otherwise;
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if other than 100% of the aggregate principal amount thereof, the portion of the principal amount of the debt
securities which will be payable upon declaration of acceleration of the maturity date thereof or provable in bankruptcy, or, if applicable, which is convertible or exchangeable;
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any obligation we may have to redeem, purchase or repay the debt securities pursuant to any sinking fund or
analogous provisions or at the option of a holder of debt securities, and the price or prices at which, the currency in which and the period or periods within which, and the other terms and conditions upon which, the debt securities will be
redeemed, purchased or repaid, in whole or in part, pursuant to any such obligation, and any provision for the remarketing of the debt securities;
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whether the debt securities will be registered securities or unregistered securities or both, and the rights of
the holders of the debt securities to exchange unregistered securities for registered securities, or vice-versa, and the circumstances under which any such exchanges, if permitted, may be made;
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the denominations, which may be in U.S. dollars or in any foreign currency, in which the debt securities will be
issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated debt securities, and if so, the form of
the debt securities (or forms thereof if unregistered and registered securities are issuable in that series), including the legends required by law or as we deem necessary or appropriate, the form of any coupons or temporary global security which
may be issued and the forms of any other certificates
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which may be required under the indenture or which we may require in connection with the offering, sale, delivery or exchange of the debt securities;
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if other than U.S. dollars, the currency or currencies in which payments of principal, interest and other amounts
payable with respect to the debt securities will be denominated, payable, redeemable or repurchasable, as the case may be;
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whether the debt securities may be issuable in tranches;
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the obligations, if any, we may have to permit the conversion or exchange of the debt securities into common
stock, preferred stock or other capital stock or property, or a combination thereof, and the terms and conditions upon which such conversion or exchange will be effected (including the conversion price or exchange ratio), and any limitations on the
ownership or transferability of the securities or property into which the debt securities may be converted or exchanged;
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any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to
the debt securities;
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if the debt securities do not bear interest, the applicable dates required under the indenture for furnishing
information to the trustee regarding the holders of the debt securities;
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any deletions from, modifications of or additions to (a) the events of default with respect to the debt
securities or (b) the rights of the trustee or the holders of the debt securities in connection with events of default;
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any deletions from, modifications of or additions to the covenants with respect to the debt securities;
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if the amount of payments of principal of, and make-whole amount, if any, and interest on the debt securities may
be determined with reference to an index, the manner in which such amount will be determined;
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whether the debt securities will be issued in whole or in part in the global form of one or more debt securities
and, if so, the depositary for such debt securities, the circumstances under which any such debt security may be exchanged for debt securities registered in the name of, and under which any transfer of debt securities may be registered in the name
of, any person other than such depositary or its nominee, and any other provisions regarding such debt securities;
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whether, under what circumstances and the currency in which, we will pay additional amounts on the debt
securities to any holder of the debt securities who is not a U.S. person in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem such debt securities rather than pay such additional amounts (and
the terms of any such option);
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whether the debt securities, in whole or specified parts, will be defeasible, and, if the securities may be
defeased, in whole or in specified part, any provisions to permit a pledge of obligations other than certain government obligations to satisfy the requirements of the indenture regarding defeasance of securities and, if other than by resolution of
our board of directors, the manner in which any election to defease the debt securities will be evidenced;
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whether the debt securities will be secured by any property, assets or other collateral and, if so, a general
description of the collateral and the terms of any related security, pledge or other agreements;
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the persons to whom any interest on the debt securities will be payable, if other than the registered holders
thereof on the regular record date therefor;
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the dates on which interest, if any, will be payable and the regular record dates for interest payment dates;
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any restrictions, conditions or requirements for transfer of the debt securities; and
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any other material terms or conditions upon which the debt securities will be issued.
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Unless otherwise indicated in an applicable prospectus supplement, we will issue debt securities
in fully registered form without coupons and in denominations of $1,000 and in integral multiples of $1,000, and interest will be computed on the basis of a 360-day year of twelve 30-day months. If any interest payment date or the maturity date falls on a day that is not a business day, then the payment will be made on the next business day without additional interest and with the same effect
as if it were made on the originally scheduled date.
Unless otherwise indicated in an applicable prospectus supplement, the trustee will
act as paying agent and registrar for the debt securities under the indenture. We may also act as paying agent under the indenture.
An
applicable prospectus supplement will contain a description of U.S. federal income tax consequences relating to the debt securities, to the extent applicable.
Covenants
An applicable prospectus
supplement will describe any covenants, such as restrictive covenants restricting us or any of our subsidiaries from incurring, issuing, assuming or guarantying any indebtedness or restricting us or any of our subsidiaries from paying dividends or
acquiring any of our or its capital stock.
Consolidation, Merger and Transfer of Assets
Unless we indicate otherwise in an applicable prospectus supplement, the indenture will permit a consolidation or merger between us and another
entity and/or the sale, conveyance or lease by us of all or substantially all of our property and assets; provided, however, that:
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we are the surviving or continuing entity, or the resulting or acquiring entity, if other than us, is organized
and existing under the laws of a U.S. jurisdiction and assumes, pursuant to a supplemental indenture, all of our responsibilities and liabilities under the indenture, including the payment of all amounts due on the debt securities and performance of
the covenants in the indenture;
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immediately after the transaction, and giving effect to the transaction, no event of default under the indenture
exists; and
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we have delivered to the trustee an officers’ certificate stating that the transaction and, if a
supplemental indenture is required in connection with the transaction, the supplemental indenture, comply with the indenture and that all conditions precedent to the transaction contained in the indenture have been satisfied.
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If we consolidate or merge with or into any other entity, or sell or lease all or substantially all of our assets in compliance with the terms
and conditions of the indenture, the resulting or acquiring entity will be substituted for us in the indenture and the debt securities with the same effect as if it had been an original party to the indenture and the debt securities. As a result,
such successor entity may exercise our rights and powers under the indenture and the debt securities, in our name, and, except in the case of a lease, we will be released from all our liabilities and obligations under the indenture and under the
debt securities.
Notwithstanding the foregoing, we may transfer all of our property and assets to another entity if, immediately after
giving effect to the transfer, such entity is our wholly owned subsidiary. The term “wholly owned subsidiary” means any subsidiary in which we and/or our other wholly owned subsidiaries own all of the outstanding capital stock.
Modification and Waiver
Unless we
indicate otherwise in an applicable prospectus supplement, under the indenture, some of our rights and obligations and some of the rights of the holders of the debt securities may be modified or amended
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with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities affected by the modification or amendment. However, the following
modifications and amendments will not be effective against any holder without its consent:
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a change in the stated maturity date of any payment of principal or interest;
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a reduction in the principal amount of, or interest on, any debt securities;
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an alteration or impairment of any right to convert at the rate or upon the terms provided in the indenture;
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a change in the currency in which any payment on the debt securities is payable;
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an impairment of a holder’s right to sue us for the enforcement of payments due on the debt securities; or
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a reduction in the percentage of outstanding debt securities required to consent to a modification or amendment
of the indenture or required to consent to a waiver of compliance with certain provisions of the indenture or certain defaults under the indenture.
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Under the indenture, the holders of not less than a majority in aggregate principal amount of the outstanding debt securities may, on behalf
of all holders of the debt securities:
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waive compliance by us with certain restrictive provisions of the indenture; and
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waive any past default under the indenture in accordance with the applicable provisions of the indenture, except
a default in the payment of the principal of, or interest on, any series of debt securities.
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Finally, we and the
indenture trustee may, from time to time, amend the indenture without the consent of holders of the debt securities for certain purposes, including but not limited to the following:
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to evidence the succession of another entity to us or successive successions and the assumption by such entity of
our covenants, agreements and obligations under the indenture;
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to add additional events of default for the protection of the holders of debt securities;
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to add covenants for the protection of the holders of debt securities; and
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to make certain other administrative modifications which do not materially and adversely affect the interests of
the holders of debt securities.
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Events of Default
Unless we indicate otherwise in an applicable prospectus supplement, “event of default” under the indenture will mean, with respect
to any series of debt securities, any of the following:
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failure to pay interest on any debt security for 30 days after the payment is due;
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failure to pay the principal of any debt security when due, either at maturity, upon redemption, by declaration
or otherwise;
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failure on our part to observe or perform any other covenant or agreement in the indenture that applies to the
debt securities for 90 days after we have received written notice of the failure to perform in the manner specified in the indenture; and
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certain events of bankruptcy, insolvency or reorganization.
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If an event of default occurs and continues, the trustee or the holders of not less than 25% in aggregate principal amount of the outstanding
debt securities of such series may declare the entire principal of all the debt securities to be due and payable immediately, except that, if the event of default is caused by certain events of
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bankruptcy, insolvency or reorganization, the entire principal of all of the debt securities of such series will become due and payable immediately without any act on the part of the trustee or
holders of the debt securities. If such a declaration occurs, the holders of a majority of the aggregate principal amount of the outstanding debt securities of such series can, subject to conditions, rescind the declaration.
The indenture requires us to furnish to the trustee, not less often than annually, a certificate from our principal executive officer,
principal financial officer or principal accounting officer, as the case may be, as to such officer’s knowledge of our compliance with all conditions and covenants under the indenture. The trustee may withhold notice to the holders of debt
securities of any default, except defaults in the payment of principal of, or interest on, any debt securities if the trustee in good faith determines that the withholding of notice is in the best interests of the holders. For purposes of this
paragraph, “default” means any event which is, or after notice or lapse of time or both would become, an event of default under the indenture.
The trustee is not obligated to exercise any of its rights or powers under the indenture at the request, order or direction of any holders of
debt securities, unless the holders offer the trustee satisfactory security or indemnity. If satisfactory security or indemnity is provided, then, subject to other rights of the trustee, the holders of a majority in aggregate principal amount of the
outstanding debt securities may direct the time, method and place of:
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conducting any proceeding for any remedy available to the trustee; or
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exercising any trust or power conferred upon the trustee.
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The holder of a debt security will have the right to begin any proceeding with respect to the indenture or for any remedy only if:
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the holder has previously given the trustee written notice of a continuing event of default;
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the holders of not less than a majority in aggregate principal amount of the outstanding debt securities have
made a written request of, and offered reasonable indemnity to, the trustee to begin such proceeding;
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the trustee has not started such proceeding within 60 days after receiving the request; and
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no direction inconsistent with such written request has been given to the trustee under the indenture.
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However, the holder of any debt security will have an absolute right to receive payment of principal of, and interest
on, the debt security when due and to institute suit to enforce payment.
Satisfaction and Discharge; Defeasance
Satisfaction and Discharge of Indenture. Unless otherwise indicated in an applicable prospectus supplement, if at any time,
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we have paid the principal of and interest on all the debt securities of any series, except for debt securities
which have been destroyed, lost or stolen and which have been replaced or paid in accordance with the indenture, as and when the same has become due and payable;
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we have delivered to the trustee for cancellation all debt securities of any series theretofore authenticated,
except for debt securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in the indenture; or
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all the debt securities of such series not theretofore delivered to the trustee for cancellation have become due
and payable, or are by their terms are to become due and payable within one year or are to be called for redemption within one year, and we have deposited with the trustee, in trust, sufficient money or government obligations, or a combination
thereof, to pay the principal, any interest and any other sums due on the debt securities, on the dates the payments are due or become due under the indenture and the terms of the debt securities;
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then the indenture shall cease to be of further effect with respect to the debt securities of such series, except
for (a) rights of registration of transfer and exchange, and our right of optional redemption, (b) substitution of mutilated, defaced, destroyed, lost or stolen debt securities, (c) rights of holders to receive payments of principal
thereof and interest thereon upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if any, (d) the rights, obligations and immunities of the
trustee under the indenture, and (e) the rights of the holders of such series of debt securities as beneficiaries thereof with respect to the property so deposited with the trustee payable to all or any of them.
Defeasance and Covenant Defeasance. Unless otherwise indicated in an applicable prospectus supplement, we may elect with respect
to any debt securities of any series either:
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to defease and be discharged from all of our obligations with respect to such debt securities, which we refer to
as defeasance, with certain exceptions described below; or
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to be released from our obligations with respect to such debt securities under such covenants as may be specified
in an applicable prospectus supplement, and any omission to comply with those obligations will not constitute a default or an event of default with respect to such debt securities, which we refer to as covenant defeasance.
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We must comply with the following conditions before the defeasance or covenant defeasance can be effected:
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we must irrevocably deposit with the indenture trustee or other qualifying trustee, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the trustee, trust funds in trust solely for the benefit of the holders of such debt securities, sufficient money or government obligations, or a combination thereof, to pay the
principal, any interest and any other sums on the due dates for those payments; and
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we must deliver to the trustee an opinion of counsel to the effect that the holders of such debt securities will
not recognize income, gain or loss for federal income tax purposes as a result of such defeasance or covenant defeasance, as the case may be, to be effected with respect to such debt securities and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would be the case if such defeasance or covenant defeasance, as the case may be, had not occurred.
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In connection with defeasance, any irrevocable trust agreement contemplated by the indenture must include, among other things, provision for
(a) payment of the principal of and interest on such debt securities, if any, appertaining thereto when due (by redemption, sinking fund payments or otherwise), (b) the payment of the expenses of the trustee incurred or to be incurred in
connection with carrying out such trust provisions, (c) rights of registration, transfer, substitution and exchange of such debt securities in accordance with the terms stated in the indenture, and (d) continuation of the rights,
obligations and immunities of the trustee as against the holders of such debt securities as stated in the indenture.
The accompanying
prospectus supplement may further describe any provisions permitting or restricting defeasance or covenant defeasance with respect to the debt securities of a particular series.
Global Securities
Unless otherwise
indicated in an applicable prospectus supplement, each debt security offered by this prospectus will be issued in the form of one or more global debt securities representing all or part of that series of debt securities. This means that we will not
issue certificates for that series of debt securities to the holders. Instead, a global debt security representing that series will be deposited with, or on behalf of, a securities depositary and registered in the name of the depositary or a nominee
of the depositary. Any such depositary must be a clearing agency registered under the Exchange Act. We will describe the specific terms of the depositary arrangement with respect to a series of debt securities to be represented by a global security
in an applicable prospectus supplement.
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Notices
We will give notices to holders of the debt securities by mail at the addresses listed in the security register. In the case of notice in
respect of unregistered securities or coupon securities, we may give notice by publication in a newspaper of general circulation in New York, New York.
Governing Law
The indenture and the debt
securities will be governed by, and construed in accordance with, the laws of the State of New York, except to the extent the Trust Indenture Act of 1939, as amended, is applicable.
Regarding the Trustee
General. We
will enter into the indenture with a trustee that is qualified to act under the Trust Indenture Act of 1939, as amended, and with any other trustees chosen by us and appointed in a supplemental indenture for a particular series of debt securities.
Resignation or Removal of Trustee. If the trustee has or acquires a conflicting interest within the meaning of the Trust Indenture
Act, the trustee must either eliminate its conflicting interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and the indenture. Any resignation will require the appointment of a
successor trustee under the indenture in accordance with the terms and conditions of the indenture.
The trustee may resign or be removed
by us with respect to one or more series of debt securities and a successor trustee may be appointed to act with respect to any such series. The holders of a majority in aggregate principal amount of the debt securities of any series may remove the
trustee with respect to the debt securities of such series.
Annual Trustee Report to Holders of Debt Securities. The trustee will
be required to submit certain reports to the holders of the debt securities regarding, among other things, the trustee’s eligibility to serve as such, the priority of the trustee’s claims regarding advances made by it, and any action taken
by the trustee materially affecting the debt securities.
Certificates and Opinions to Be Furnished to Trustee. The indenture
provides that, in addition to other certificates or opinions specifically required by other provisions of the indenture, every application by us for action by the trustee must be accompanied by a certificate from one or more of our officers and an
opinion of counsel (who may be our counsel) stating that, in the opinion of the signers, all conditions precedent to such action have been complied with by us.
Certain Relationships in the Ordinary Course. From time to time, we may maintain deposit accounts and conduct other banking
transactions with the trustee to be appointed under the indenture or its affiliates in the ordinary course of business.
Description of Warrants
We may issue warrants for the purchase of debt securities, preferred stock, common stock, other securities
of the Company or any combination of the foregoing. Warrants may be issued alone or together with securities offered by any prospectus supplement and may be attached to, or separate from, those securities. The particular terms of any warrants will
be described more specifically in the prospectus supplement relating to such warrants.
The prospectus supplement relating to any warrants
we are offering will include specific terms relating to the offering. We will file the form of any warrant agreement with the SEC, and you should read the warrant
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agreement for provisions that may be important to you. The prospectus supplement will include some or all of the following information:
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the title and specific designation of the warrants;
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the aggregate number of warrants offered;
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the amount of warrants outstanding, if any;
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the designation, number and terms of the securities purchasable upon exercise of the warrants, and procedures
that will result in the adjustment of those numbers;
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the exercise price or prices of the warrants;
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the dates or periods during which the warrants are exercisable;
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the designation and terms of any securities with which the warrants are issued;
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if the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and
the other security will be separately transferable;
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if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency
in which the exercise price is denominated;
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any minimum or maximum amount of warrants that may be exercised at any one time;
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the anti-dilution, redemption or call provisions of the warrants, if any;
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if applicable, the identity of the warrant agent for the warrants and of any other depositaries, execution or
paying agents, transfer agents, registrars or other agents;
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any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; and
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any other material terms of the warrants.
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Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding-up, or to exercise voting rights, if any.
Description of Depositary Shares
This following is a summary of the general terms of the deposit agreement to govern any depositary shares we may offer representing fractional
interests in shares of our preferred stock, the depositary shares themselves and the related depositary receipts. This summary does not purport to be complete in all respects and is subject to and qualified entirely by reference to the relevant
deposit agreement and depositary receipt with respect to the depositary shares relating to any particular series of preferred stock. A copy of the deposit agreement and form of depositary receipt relating to any depositary shares we issue will be
filed with the SEC as an exhibit to the registration statement of which this prospectus is a part or as an exhibit to a filing incorporated by reference in the registration statement. The specific terms of any depositary shares we may offer will be
described in an applicable prospectus supplement. If so described in such applicable prospectus supplement, the terms of that series of depositary shares may differ from the general description of terms presented below.
General
We may offer fractional
interests in shares of our preferred stock, rather than full shares of preferred stock, most likely in the event that our then authorized but yet undesignated shares of preferred stock is not sufficient to offer full shares of preferred stock. If we
do, we will provide for the issuance by a depositary to the public of receipts for depositary shares, each of which will represent a fractional interest in a share of a particular series of preferred stock.
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The shares of any series of preferred stock underlying the depositary shares will be deposited
under a separate deposit agreement between us and a bank or trust company having its principal office in the United States and having a combined capital and surplus of such amount as may be set forth in an applicable prospectus supplement, which we
refer to in this section as the depositary. We will name the depositary in such applicable prospectus supplement. Subject to the terms of the deposit agreement, each owner of a depositary share will have a fractional interest in all the rights and
preferences of the preferred stock underlying the depositary share. Those rights include any dividend, voting, redemption, conversion and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under the deposit agreement. Purchasers of fractional interests in
shares of the related series of preferred stock will receive depositary receipts as described in an applicable prospectus supplement.
Unless we specify otherwise in an applicable prospectus supplement, purchasers will not be entitled to receive the whole shares of preferred
stock underlying the depositary shares.
Dividend Rights
The depositary will distribute all cash dividends or other cash distributions in respect of the preferred stock underlying the depositary
shares to each record holder of depositary shares based on the number of the depositary shares owned by that holder on the relevant record date. The depositary will distribute only that amount which can be distributed without attributing to any
holder of depositary shares a fraction of one cent, and any balance not so distributed will be added to and treated as part of the next sum received by the depositary for distribution to record holders of depositary shares.
If there is a distribution other than in cash, the depositary will distribute property to the entitled record holders of depositary shares,
unless the depositary determines that it is not feasible to make that distribution. In that case the depositary may, with our approval, adopt the method it deems equitable and practicable for making that distribution, including any sale of property
and distribution of the net proceeds from this sale to the applicable holders.
The deposit agreement will also contain provisions
relating to how any subscription or similar rights offered by us to holders of the preferred stock will be made available to the holders of depositary shares.
Voting Rights
When the depositary
receives notice of any meeting at which the holders of the preferred stock may vote, the depositary will mail information about the meeting contained in the notice, and any accompanying proxy materials, to the record holders of the depositary shares
relating to the preferred stock. Each record holder of such depositary shares on the record date, which will be the same date as the record date for the preferred stock, will be entitled to instruct the depositary as to how the preferred stock
underlying the holder’s depositary shares should be voted.
Conversion or Exchange Rights
If any series of preferred stock underlying the depositary shares is subject to conversion or exchange, an applicable prospectus supplement
will describe the rights or obligations of each record holder of depositary receipts to convert or exchange the depositary shares.
Redemption
If the series of the preferred stock underlying the depositary shares is subject to redemption, all or a part of the depositary shares will be
redeemed from the redemption proceeds of that series of the preferred stock held by
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the depositary. The redemption price per depositary share will bear the same relationship to the redemption price per share of preferred stock that the depositary share bears to the underlying
preferred stock. Whenever we redeem preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing the preferred stock redeemed. If less than all the depositary shares
are to be redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as determined by the depositary.
After the date fixed for redemption, the depositary shares called for redemption will no longer be outstanding. When the depositary shares are
no longer outstanding, all rights of the holders will cease, except the right to receive money or other property that the holders of the depositary shares were entitled to receive upon the redemption. Payments will be made when holders surrender
their depositary receipts to the depositary.
Taxation
Owners of depositary shares will be treated for U.S. federal income tax purposes as if they were owners of the preferred stock represented by
the depositary shares. If necessary, an applicable prospectus supplement will provide a description of U.S. federal income tax consequences relating to the purchase and ownership of the depositary shares and the preferred stock represented by the
depositary shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be amended by agreement between
us and the depositary at any time. However, certain amendments as specified in an applicable prospectus supplement will not be effective unless approved by the record holders of at least a majority of the depositary shares then-outstanding. A
deposit agreement may be terminated by us or the depositary only if:
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all outstanding depositary shares relating to the deposit agreement have been redeemed; or
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there has been a final distribution on the preferred stock of the relevant series in connection with our
liquidation, dissolution or winding up of our business and the distribution has been distributed to the holders of the related depositary shares.
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Charges of Depositary
We will pay all
transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay associated charges of the depositary for the initial deposit of the preferred stock and any redemption of the preferred
stock. Holders of depositary shares will pay transfer and other taxes and governmental charges and any other charges that are stated to be their responsibility in the deposit agreement.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering notice to us. We may also remove the depositary at any time. Resignations or removals will
take effect when a successor depositary is appointed and it accepts the appointment.
Description of
Subscription Rights
This following is a summary of the general terms of the subscription rights to purchase common stock or other
securities that we may offer to shareholders using this prospectus. This summary does not purport to be complete in all respects and is subject to and qualified entirely by reference to the applicable forms of subscription agent agreement and
subscription certificate for a full understanding of all terms of any series of
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subscription rights. The forms of the subscription agent agreement and the subscription certificate will be filed with the SEC as an exhibit to the registration statement of which this prospectus
is a part or as an exhibit to a filing incorporated by reference in the registration statement. See “Where You Can Find More Information” for information on how to obtain copies.
Subscription rights may be issued independently or together with any other security and may or may not be transferable. As part of any
subscription rights offering, we may enter into a standby underwriting or other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such subscription rights offering. If we issue
subscription rights, they will be governed by a separate subscription agent agreement that we will sign with a bank or trust company, as rights agent, that will be named in an applicable prospectus supplement. The rights agent will act solely as our
agent and will not assume any obligation to any holders of subscription rights certificates or beneficial owners of subscription rights.
The prospectus supplement relating to any subscription rights we offer will describe the specific terms of the offering and the subscription
rights, including the record date for shareholders entitled to the subscription rights distribution, the number of subscription rights issued and the number of shares of common stock or other securities that may be purchased upon exercise of the
subscription rights, the exercise price of the subscription rights, the date on which the subscription rights will become effective and the date on which the subscription rights will expire, and any material U.S. federal income tax considerations.
In general, a subscription right entitles the holder to purchase for cash a specific number of shares of common stock or other securities
at a specified exercise price. The rights are normally issued to shareholders as of a specific record date, may be exercised only for a limited period of time and become void following the expiration of such period. If we determine to issue
subscription rights, we will accompany this prospectus with a prospectus supplement that will describe, among other things:
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the record date for shareholders entitled to receive the subscription rights;
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the number of shares of common stock or other securities that may be purchased upon exercise of each subscription
right;
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the exercise price of the subscription rights;
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whether the subscription rights are transferable;
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the period during which the subscription rights may be exercised and when they will expire;
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the steps required to exercise the subscription rights;
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whether the subscription rights include “oversubscription rights” so that the holder may purchase more
securities if other holders do not purchase their full allotments; and
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whether we intend to sell the shares of common stock or other securities that are not purchased in the rights
offering to an underwriter or other purchaser under a contractual “standby” commitment or other arrangement.
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If fewer than all of the subscription rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to
persons other than shareholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in an applicable prospectus supplement. After the close of business on
the expiration date of a subscription rights offering, all unexercised subscription rights will become void.
Description of Stock Purchase Contracts and Stock Purchase Units
We may issue stock purchase contracts, including contracts obligating holders to purchase from us, and us to sell to the holders, a specified
number of shares of our common stock or preferred stock at a future date or
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dates, which we refer to as the Stock Purchase Contracts. The price per share, and number of shares, of our common stock or preferred stock may be fixed at the time the Stock Purchase Contracts
are issued or may be determined by reference to a specific formula set forth in the Stock Purchase Contracts. The Stock Purchase Contracts may be issued separately or as a part of units consisting of a Stock Purchase Contract and our debt securities
or debt obligations of third parties, including Treasury securities, securing the holders’ obligations to purchase the shares of our common stock under the Stock Purchase Contracts, which we refer to in this prospectus as Stock Purchase Units.
The Stock Purchase Contracts may require holders to secure their obligations thereunder in a specified manner. The Stock Purchase Contracts also may require us to make periodic payments to the holders of the Stock Purchase Units or vice-versa and
such payments may be unsecured or prefunded on some basis.
An applicable prospectus supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units. The description in the prospectus supplement will not necessarily be complete, and reference will be made to the Stock Purchase Contracts, and, if applicable, collateral or depositary arrangements,
relating to the Stock Purchase Contracts or Stock Purchase Units. Material U.S. federal income tax considerations applicable to the Stock Purchase Units and the Stock Purchase Contracts will also be discussed in an applicable prospectus supplement.
Description of Units
As specified in an applicable prospectus supplement, we may issue units consisting of one or more debt securities, shares of common stock,
shares of preferred stock, depositary shares, warrants or other securities, or any combination of such securities, including guarantees of any securities.
A prospectus supplement and any other offering materials relating to any units issued under the registration statement containing this
prospectus will specify the terms of the units, including:
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•
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the terms of the units and of any of the debt securities, common stock, preferred stock, depositary shares,
warrants and guarantees comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;
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•
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a description of the terms of any unit agreement governing the units; and
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•
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a description of the provisions for the payment, settlement, transfer or exchange of the units.
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Plan of Distribution
We may sell the securities covered by this prospectus from time to time at market prices prevailing at the time of sale, at prices related to
such prevailing market prices at the time of sale, at negotiated prices or at fixed prices, which may change from time to time. We may sell the securities directly to one or more purchasers, through agents, to dealers, through underwriters, brokers
or dealers, or through a combination of any of these sales methods or through any other method permitted by law (including in “at the market” equity offerings as defined in Rule 415 of the Securities Act). We reserve the right to
accept or reject, in whole or in part, any proposed purchase of securities, whether the purchase is to be made directly or through agents.
Each time that we use this prospectus to sell our securities, we will also provide a prospectus supplement, if required, that contains the
specific terms of the offering, including:
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•
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the name or names of the underwriters, dealers or agents, if any, and the types and amounts of securities
underwritten or purchased by each of them;
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the public offering price of the securities and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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24
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•
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any agency fees or underwriting discounts or other items constituting agents’ or underwriters’
compensation;
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•
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any discounts, commissions or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which the securities may be listed.
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Only underwriters that we have named in a prospectus supplement will be underwriters of the securities offered by that prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable
underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to
purchase all of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time
to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of
securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must
pay for solicitation of these contracts in an applicable prospectus supplement.
We may provide agents and underwriters with
indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in
transactions with, or perform services for, us in the ordinary course of business.
All securities we may offer, other than common stock
or other outstanding securities, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time
without notice. We cannot guarantee the liquidity of the trading markets for any securities.
Any underwriter may engage in
over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchases of the securities, either through
exercise of the over-allotment option or in the open market after the distribution is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the
dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the
activities at any time.
25
Under the securities laws of some states, to the extent applicable, the securities may be sold in
such states only through registered or licensed brokers or dealers. In addition, if our common stock is no longer listed on the NASDAQ Global Select Market or another national securities exchange, in some states the securities may not be sold unless
such securities have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
Legal Matters
Certain legal matters in connection with any offering of securities made by this prospectus will be passed upon for us by our counsel, Barack
Ferrazzano Kirschbaum & Nagelberg LLP of Chicago, Illinois. If the securities are being distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by counsel identified in the related prospectus
supplement.
Experts
The consolidated financial statements of the County Bancorp, Inc. and subsidiaries as of December 31, 2019 and 2018, and for each of the
years in the two-year period ended December 31, 2019 incorporated in this prospectus by reference from the County Bancorp, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2019
have been audited by Plante & Moran, PLLC, an independent registered public accounting firm, as stated in their reports thereon incorporated by reference herein, and have been incorporated in this prospectus and registration statement in
reliance upon such reports and upon the authority of said firm as experts in accounting and auditing.
Where
You Can Find More Information
We are subject to the informational requirements of the Exchange Act and file with the SEC proxy
statements, Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
required of a U.S. listed company. Our SEC filings are also available to the public from the SEC’s web site at www.sec.gov or on our website at www.investorscommunitybank.com. However, other than our available SEC filings, the information on,
or that can be accessible through, our website does not constitute a part of, and is not incorporated by reference in, this prospectus. Written requests for copies of the documents we file with the SEC should be directed to County
Bancorp, Inc., 2400 S. 44th Street, Manitowoc, Wisconsin 54221, Attention: Secretary, telephone: (920) 686-9998.
This prospectus is part of a registration statement on Form S-3 filed by us with the SEC under
the Securities Act. As permitted by the SEC, this prospectus does not contain all the information in the registration statement filed with the SEC. For a more complete understanding of this offering, you should refer to the complete registration
statement, including exhibits, on Form S-3 that may be obtained as described above. Statements contained in this prospectus about the contents of any contract or other document are not necessarily
complete. If we have filed any contract or other document as an exhibit to the registration statement or any other document incorporated by reference in the registration statement, you should read the exhibit for a more complete understanding of the
contract or other document or matter involved. Each statement regarding a contract or other document is qualified in its entirety by reference to the actual contract or other document.
Incorporation of Certain Information By Reference
The SEC allows us to incorporate by reference the information that we file with it into this prospectus, which means that we can disclose
important information to you by referring you to other documents. The information incorporated by reference is an important part of this prospectus. We incorporate by reference the following documents and any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of the offering covered by this prospectus, as well as any filings made after the date of this registration statement of which
this prospectus forms a part and prior to the effectiveness of such registration statement, but excluding, in each case, information
26
“furnished” rather than “filed” and information that is modified or superseded by subsequently filed documents prior to the termination of this offering:
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our Annual Report on
Form 10-K for the year ended December 31, 2019, filed with the SEC on March 13, 2020;
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•
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our Quarterly Report on Form
10-Q for the quarter ended March 31, 2020, filed with the SEC on May 8, 2020;
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the description of the Company’s common stock contained in the Registration Statement filed with the SEC on
January 13, 2015, pursuant to Section 12 of the Exchange Act on Form 8-A (File No. 001-36808), including any amendment or report filed for the purpose of updating such description.
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Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus shall
be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in any subsequently filed document which also is, or is deemed to be, incorporated by reference in this prospectus modifies or supersedes
such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide without charge, upon written or oral request, a copy of any or all of the documents that are incorporated by reference into
this prospectus and a copy of any or all other contracts or documents which are referred to in this prospectus. Requests should be directed to:
County Bancorp, Inc.
Attention:
Secretary
2400 S. 44th Street
Manitowoc, Wisconsin 54221
Telephone number: (920) 686-9998
27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth our estimated expenses to be incurred in connection with the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions. We will pay all of these expenses.
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SEC Registration Fee
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$
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12,980.00
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Trustee Fees
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*
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Printing Expenses
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*
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Rating Agency Fees
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*
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Legal Fees and Expenses
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*
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Accounting 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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These fees are not presently known and cannot be estimated at this time, as they will be based upon, among
other things, the amount and type of security being offered as well as the number of offerings.
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Item 15. Indemnification of
Directors and Officers
Wisconsin Law. Sections 180.0850 to 180.0859 of the WBCL require a corporation to indemnify any
director or officer who is a party to any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local
law and which is brought by or in the right of the corporation or by any other person. A corporation’s obligation to indemnify any such person includes the obligation to pay any judgment, settlement, forfeiture or fine, including any excise tax
assessed with respect to an employee benefit plan, and all reasonable expenses, including fees, costs, charges, disbursements, attorney’s fees and other expenses except in those cases in which liability was incurred as a result of the breach or
failure to perform a duty that the director or officer owes to the corporation and the breach or failure to perform constitutes: (i) a willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which
the director or officer has a material conflict of interest; (ii) a violation of criminal law, unless the person has reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was
unlawful; (iii) a transaction from which the person derived an improper personal profit; or (iv) willful misconduct.
An officer
or director seeking indemnification is entitled to indemnification if approved in any of the following manners: (i) by a majority vote of a disinterested quorum of the board of directors, or if such quorum of disinterested directors cannot be
obtained, by a majority vote of a committee of two or more disinterested directors; (ii) by independent legal counsel; (iii) by a panel of three arbitrators; (iv) by an affirmative vote of disinterested shareholders; (v) by a
court; or (vi) with respect to any additional right to indemnification granted, by any other method permitted in Section 180.0858 of the WBCL.
Reasonable expenses incurred by a director or officer who is a party to a proceeding may be reimbursed by a corporation at such time as the
director or officer furnishes to the corporation written affirmation of his good faith belief that he has not breached or failed to perform his duties and a written undertaking to repay any amounts advanced if it is determined that indemnification
by the corporation is not required.
The indemnification provisions of Sections 180.0850 to 180.0859 of the WBCL are not exclusive. A
corporation may expand an officer’s or director’s right to indemnification (i) in its articles of incorporation or bylaws; (ii) by written agreement between the director or officer and the corporation; (iii) by resolution of
its board of directors; or (iv) by a resolution adopted, after notice, by a majority of all of the corporation’s voting shares then issued and outstanding.
II-1
Articles of Incorporation. Article IX of our Articles of Incorporation provide for
the mandatory indemnification of our directors and officers to the fullest extent permitted or required by Sections 180.0850 to 180.0859 of the WBCL.
Bylaws. As permitted by Section 180.0858 of the WBCL, the Company has adopted indemnification provisions in its Bylaws.
The Bylaws contain provisions that are substantially similar to the statutory indemnification provisions of the WBCL. In particular,
Article X of the Bylaws provides, among other things, that the Company will indemnify an officer or director, to the extent he or she has been successful on the merits or otherwise in the defense of proceeding, for all reasonable expenses incurred
in the proceeding if the director or officer was a party because he or she is a director or officer of the Company. The Bylaws further provide, among other things, that the Company shall indemnify a director or officer against all liabilities and
expenses incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is a director or officer of the Company, unless liability was incurred because the director or officer breached or failed to
perform a duty he or she owes to the Company and the breach or failure to perform constitutes any of the following: (i) a willful failure to deal fairly with the Company or its shareholders in connection with a matter in which the director or
officer has a material conflict of interest; (ii) a violation of criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was
unlawful; (iii) a transaction from which the director or officer derived an improper personal profit; or (iv) willful misconduct.
The foregoing description of the Company’s Bylaws is qualified in its entirety by reference to such document, which is listed as Exhibit
3.2 hereto.
Liability Insurance. As permitted by Section 180.0857 of the WBCL, the Company has purchased director and
officer liability insurance.
Item 16. Exhibits
II-2
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To be filed either by amendment or as an exhibit to a report filed under the Exchange Act, and incorporated
herein by reference.
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**
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To be filed separately under the electronic form type “305B2” pursuant to Section 305(b)(2) of
the Trust Indenture Act of 1939, as amended, if applicable.
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Item 17. Undertakings
The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this
registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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 the
volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table
in the effective registration statement; and
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(iii)
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to include any material information with respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in this registration statement;
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provided, however,
that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act, that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
II-3
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(2)
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That, for the purpose of determining any liability under the Securities Act, 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.
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(3)
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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.
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(4)
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That, for the purpose of determining liability under the Securities Act to any purchaser:
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(i)
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each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(ii)
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each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(5)
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That, for the purpose of determining liability of the registrant under the Securities Act 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 the 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:
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(i)
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any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
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(ii)
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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;
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(iii)
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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
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(iv)
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any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(6)
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That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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II-4
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(7)
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To file an application for the purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of 1939.
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the indemnification provisions described in Item 15 above, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
II-5
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 Manitowoc, state of
Wisconsin, on the 8th day of May, 2020.
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COUNTY BANCORP, INC.
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By:
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/s/ Timothy J. Schneider
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Timothy J. Schneider
President
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of Timothy J. Schneider and Glen L. Stiteley his or her true
and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, to sign on his or her behalf, individually and in each capacity
stated below, all amendments and post-effective amendments to this registration statement on Form S-3 (including any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and
all amendments thereto) and to file the same, with all exhibits thereto and any other documents in connection therewith, with the SEC under the Securities Act of 1933, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as
each might or could do in person, hereby ratifying and confirming each act that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in
the capacities indicated on May 8, 2020.
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Signature
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Title
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/s/ Timothy J. Schneider
Timothy J. Schneider
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President and Director
(principal executive officer)
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/s/ Glen L. Stiteley
Glen L. Stiteley
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Chief Financial Officer and Treasurer
(principal financial officer and principal accounting officer)
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/s/ William C. Censky
William C. Censky
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Chairman of the Board and Director
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Mark R. Binversie
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Director
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/s/ Lynn D. Davis
Lynn D. Davis
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Director
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/s/ Jacob B. Eisen
Jacob B. Eisen
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Director
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/s/ Edson P. Foster, Jr.
Edson P. Foster, Jr.
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Director
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II-6
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/s/ Vicki L. Leinbach
Vicki L. Leinbach
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Director
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/s/ Robert E. Matzke
Robert E. Matzke
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Director
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Wayne D. Mueller
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Director
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/s/ Patrick J. Roe
Patrick J. Roe
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Director
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/s/ Kathi P. Seifert
Kathi P. Seifert
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Director
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/s/ Andrew J. Steimle
Andrew J. Steimle
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Director
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/s/ Gary J. Ziegelbauer
Gary J. Ziegelbauer
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Director
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II-7
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