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EXHIBIT 4.2
FORM OF SERIES B DEBENTURE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY ATTEMPTED
TRANSFER OF SECURITIES IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS
THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, AND
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
SECURITIES.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT: (A) THE PURCHASE AND HOLDING OF THE SECURITIES IS
COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR
84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) CNB AND THE ADMINISTRATORS ARE NOT
"FIDUCIARIES" WITHIN THE MEANING OF SECTION 3(21) OF ERISA AND THE REGULATIONS
THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST IN THE SECURITIES OR THE
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, AND (C) IN PURCHASING THE
CAPITAL
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SECURITIES SUCH PERSON APPROVES THE PURCHASE OF THE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURES AND THE APPOINTMENT OF THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE.
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CNB FINANCIAL CORP.
CUSIP No.: ____________
$______________
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE SEPTEMBER 30, 2029 Series B
CNB Financial Corp., a New York corporation (the "Corporation," which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to [ ] or its registered
assigns, the principal sum of $___________ on September 30, 2029 (the "Maturity
Date"), unless previously prepaid, and to pay interest on the outstanding
principal amount hereof from August 6, 1999, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing September 30, 1999 at the rate per annum, reset quarterly,
equal to 3-month LIBOR (as defined in the Indenture) plus 275 basis points until
the principal hereof shall have become due and payable, and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly ("Compounded
Interest"). The amount of interest payable on any Interest Payment Date shall be
computed on the basis of the actual number of days elapsed and a 360-day year.
In the event that any date on which the principal of or interest on this
Security is payable is not a Business Day (as defined in the Indenture), then
the payment payable on such date will be made on the next succeeding day that is
a Business Day, except that if such next succeeding Business Day falls in the
next succeeding calendar year such payment shall be made on the immediately
preceding Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on such date.
Pursuant to the Indenture, in certain circumstances the Corporation will be
required to pay Additional Sums (as defined in the Indenture) with respect to
this Security. Pursuant to the Registration Rights Agreement, in certain limited
circumstances the Corporation will be required to pay Liquidated Damages (as
defined in the Registration Rights Agreement) with respect to this Security.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be at the
close of business on the first day of the month in which the relevant Interest
Payment Date falls. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the holders on such regular
record date and may be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a special
record date
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to be fixed by the Debenture Trustee for the payment of such defaulted interest,
notice whereof shall be given to the holders of Securities not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
The principal of and interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on this Security shall
be payable at the office or agency of the Debenture Trustee maintained for that
purpose in any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Corporation
by (i) check mailed to the holder at such address as shall appear in the
Security Register or (ii) transfer to an account maintained by the Person
entitled thereto, provided that proper written transfer instructions have been
received by the relevant record date. Notwithstanding the foregoing, so long as
the holder of this Security is the Property Trustee of CNBF Capital Trust I, the
payment of the principal of and interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on this Security will
be made at such place and to such account as may be designated by such Property
Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full, of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Debenture Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Debenture Trustee
his or her attorney-in-fact for any and all such purposes. Each holder hereof,
by his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
or be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Debenture
Trustee.
The provisions of this Security are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
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IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed and sealed this ______ day of _________, 1999.
CNB FINANCIAL CORP.
By:
----------------------------
Xxxxx X. Xxxxx
Executive Vice President
and Chief Financial Officer
Attest:
By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Floating Rate Junior Subordinated Deferrable Interest
Debentures Series B, of CNB FINANCIAL CORP. referred to in the within-mentioned
Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Debenture Trustee
Dated: By:
------------------ ----------------------------
Authorized Signatory
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[FORM OF REVERSE OF SECURITY]
This Security is one of the Securities of the Corporation (herein sometimes
referred to as the "Securities"), specified in the Indenture, all issued or to
be issued under and pursuant to an Indenture, dated as of August 6, 1999 (the
"Indenture"), duly executed and delivered between the Corporation and Wilmington
Trust Company, as Debenture Trustee (the "Debenture Trustee"), to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Debenture
Trustee, the Corporation, the holders of Senior Indebtedness and the holders of
the Securities.
Upon the occurrence and continuation of a Special Event (as defined in the
Indenture) prior to September 30, 2009 (the "Initial Optional Redemption Date"),
the Corporation shall have the right, at any time within 90 days following the
occurrence of such Special Event, to prepay this Security in whole (but not in
part) at the Prepayment Price. "Prepayment Price" shall mean, with respect to
any prepayment of this Security, an amount in cash equal to 100% of the
principal amount of this Security to be prepaid plus any accrued and unpaid
interest (including Compounded Interest and Additional Sums, if any), if any,
thereon to the date of such prepayment.
In addition, the Corporation shall have the right to prepay this Security, in
whole or in part, at any time on or after the Initial Optional Redemption Date
(an "Optional Prepayment"), at the Prepayment Price.
The Prepayment Price shall be paid prior to 12:00 noon, Eastern time, on the
date of such prepayment or at such earlier time as the Corporation determines,
provided that the Corporation shall deposit with the Debenture Trustee an amount
sufficient to pay the Prepayment Price by 10:00 a.m., Eastern time, on the date
such Prepayment Price is to be paid. Any prepayment pursuant to this paragraph
will be made upon not less than 30 days' nor more than 60 days' prior written
notice.
If the Securities are only partially prepaid by the Corporation pursuant to an
Optional Prepayment, the particular Securities to be prepaid shall be selected
on a pro rata basis from the outstanding Securities not previously called for
prepayment; provided, however, that with respect to Securityholders that would
be required to hold Securities with an aggregate principal amount of less than
$100,000 but more than an aggregate principal amount of zero as a result of such
pro rata prepayment, the Corporation shall prepay Securities of each such
Securityholder so that after such prepayment such Securityholder shall hold
Securities either with an aggregate principal amount of at least $100,000 or
such Securityholder no longer holds any Securities and shall use such method
(including, without limitation, by lot) as the Corporation shall deem fair and
appropriate; provided, further, that any such proration may be made on the basis
of the aggregate principal amount of Securities held by each Securityholder
thereof and may be made by making such adjustments as the Corporation deems fair
and appropriate in order that only Securities in denominations of $1,000 or
integral multiples thereof shall be prepaid. In the event of prepayment of this
Security in part only, a new Security or Securities for the
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portion hereof that has not been prepaid will be issued in the name of the
holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any prepayment of Securities by the Corporation
shall be subject to the receipt of any and all required regulatory approvals.
In case an Event of Default (as defined in the Indenture) shall have occurred
and be continuing, the principal of all of the Securities may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the Debenture
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the Securities at the time outstanding (as defined in the Indenture),
to execute supplemental indentures for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of modifying in any manner the rights of the holders of the Securities;
provided, however, that no such supplemental indenture shall, without the
consent of each holder of Securities then outstanding and affected thereby, (i)
change the Maturity Date of any Security, or reduce the rate or extend the time
of payment of interest thereon (subject to Article XVI of the Indenture), or
reduce the principal amount thereof, or change any of the prepayment provisions
or make the principal thereof or any interest thereon payable in any coin or
currency other than U.S. dollars, or impair or affect the right of any holder of
Securities to institute suit for payment thereof, or (ii) reduce the aforesaid
percentage of Securities the holders of which are required to consent to any
such supplemental indenture. The Indenture also contains provisions permitting
the holders of a majority in aggregate principal amount of the Securities at the
time outstanding affected thereby, on behalf of all of the holders of the
Securities, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any of the Securities or a default in respect of any covenant or provision under
which the Indenture cannot be modified or amended without the consent of each
holder of Securities then outstanding. Any such consent or waiver by the holder
of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Security and of any Security issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and interest (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if any,
on this Security at the time and place and at the rate and in the money herein
prescribed.
So long as no Event of Default shall have occurred and be continuing, the
Corporation shall have the right, at any time and from time to time during the
term of the Securities, to
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defer payments of interest by extending the interest payment period (an
"Extended Interest Payment Period") of such Securities for a period not (i)
exceeding 20 consecutive quarterly periods, including the first such quarterly
period during such extension period, (ii) extending beyond the Maturity Date of
the Securities or (iii) ending on a date other than an Interest Payment Date, at
the end of which period the Corporation shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the Securities
to the extent that payment of such interest is enforceable under applicable
law). Before the termination of any such Extended Interest Payment Period, the
Corporation may further defer payments of interest by further extending such
Extended Interest Payment Period, provided that such Extended Interest Payment
Period, together with all such previous and further extensions within such
Extended Interest Payment Period, (i) shall not exceed 20 consecutive quarterly
periods including the first quarterly period during such Extended Interest
Payment Period, (ii) shall not end on any date other than an Interest Payment
Date, and (iii) shall not extend beyond the Maturity Date of the Securities.
Upon the termination of any such Extended Interest Payment Period and the
payment of all accrued and unpaid interest and any additional amounts then due,
the Corporation may commence a new Extended Interest Payment Period, subject to
the foregoing requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof, but the Corporation
may prepay at any time all or any portion of the interest accrued during an
Extended Interest Payment Period.
The Corporation has agreed that it will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Corporation's capital stock, (ii) make any payment
of principal of or interest or premium, if any, on or repay, repurchase or
redeem any debt securities (including other Debentures) of the Corporation that
rank pari passu with or junior in right of payment to the Securities or (iii)
make any guarantee payments with respect to any guarantee by the Corporation of
the debt securities of any Subsidiary of the Corporation (including Other
Guarantees) if such guarantee ranks pari passu with or junior in right of
payment to the Securities. Notwithstanding the foregoing, the Corporation may
make the following payments (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of, the
Corporation's capital stock (which includes Common Stock and preferred stock),
(b) any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Capital Securities Guarantee, as defined in the Indenture,
(d) as a result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the Corporation's capital stock
for another class or series of the Corporation's capital stock, (e) the purchase
of fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (f) redemptions or other acquisitors of shares
of capital stock of the corporation in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any one or
more employees, officers, directors or consultants, in connection with any of
the Corporations's dividend reinvestment or stockholder stock purchase plans, if
at such time (1) there shall have occurred any event
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of which the Corporation has actual knowledge that (a) is, or with the giving of
notice or lapse of time, or both, would be a Default or an Event of Default and
(b) in respect of which the Corporation shall not have taken reasonable steps to
cure, (2) if such Securities are held by the Trust, the Corporation shall be in
default with respect to its payment of any obligations under the Capital
Securities Guarantee or (3) the Corporation shall have given notice of its
election to exercise its right to commence an Extended Interest Payment Period,
and shall not have rescinded such Notice, and such Extended Interest Payment
Period or any extension thereof shall have commenced and be continuing.
Subject to the Corporation having received any required regulatory approvals and
the Administrators of CNBF Capital Trust I having received an opinion of counsel
to the effect that such distribution will not cause the holders of Capital
Securities to recognize gain or loss for federal income tax purposes, the
Corporation will have the right at any time to liquidate the Trust and, after
satisfaction of liabilities of creditors of the Trust as required by applicable
law, to cause the Securities to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
The Securities are issuable only in registered form without coupons in minimum
denominations of $100,000 and multiples of $1,000 in excess thereof. As provided
in the Indenture and subject to the transfer restrictions limitations as may be
contained herein and therein from time to time, this Security is transferable by
the holder hereof on the Security Register of the Corporation, upon surrender of
this Security for registration of transfer at the office or agency of the
Corporation in Wilmington, Delaware accompanied by a written instrument or
instruments of transfer in form satisfactory to the Corporation or the Debenture
Trustee duly executed by the holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be made for any
such registration of transfer, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Security, the
Corporation, the Debenture Trustee, any authenticating agent, any paying agent,
any transfer agent and the security registrar may deem and treat the holder
hereof as the absolute owner hereof (whether or not this Security shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the security registrar for the Securities) for the purpose of
receiving payment of or on account of the principal hereof and (subject to the
Indenture) interest due hereon and for all other purposes, and neither the
Corporation nor the Debenture Trustee nor any authenticating agent nor any
paying agent nor any transfer agent nor any security registrar shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest
(including Compounded Interest and Additional Sums, if any) or Liquidated
Damages, if any, on this Security, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, employee, officer or
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director, as such, past, present or future, as such, of the Corporation or of
any predecessor or successor Person to the Corporation, either directly or
through the corporation or any successor person to the Corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; if being expressly understood that all such
liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released as a condition of, and as a
consideration for, the executor of the Indenture and the issuance of the
securities.
All terms used in this Security that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES THEREOF.
