As filed with the Securities and Exchange
Commission on May 31, 2017
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUSSEX BANCORP
(Exact name of registrant as specified
in its charter)
New Jersey
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22-3475473
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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100 Enterprise Dr., Suite 700
Rockaway, New Jersey 07866
Telephone: (844) 256-7328
(Address, including zip code, and telephone
number, including area code, of registrants’ principal executive offices)
Anthony Labozzetta
President and Chief Executive Officer
Sussex Bancorp
100 Enterprise Drive, Suite 700
Rockaway, New Jersey 07866
Telephone: (844) 256-7328
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Richard A. Schaberg, Esq.
Gregory F. Parisi, Esq.
Hogan Lovells
US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
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.
x
If this form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering.
¨
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):
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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x
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Emerging growth company
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¨
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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.
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CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Security(1)
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Proposed
Maximum
Aggregate
Offering Price(1)
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Amount of
Registration Fee(1)(2)
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Sussex Bancorp:
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Common Stock, no par value
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(3)
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(3)
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(3)
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(3)
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Preferred Stock, no par value
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(3)
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(3)
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(3)
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(3)
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Depositary Shares
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(3)
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(3)
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(3)
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(3)
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Debt Securities(4)
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(3)
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(3)
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(3)
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(3)
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Purchase Contracts
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(3)
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(3)
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(3)
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(3)
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Units
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(3)
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(3)
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(3)
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(3)
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Warrants exercisable for debt securities, common stock or preferred stock
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$
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75,000,000
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$
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8,692.50
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(5)
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(1)
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An unspecified aggregate initial offering price and number of securities of each identified class is being registered as may from time to time be offered at unspecified prices. Also includes an indeterminate number of shares of common stock, preferred stock, depositary shares, purchase contracts, units, warrants, and such indeterminate principal amount of debt securities as may be issued by the registrant upon exercise, conversion or exchange of any securities that provide for such issuance, or that may from time to time become issuable by reason of any stock split, stock dividend or similar transaction, for which no separate consideration will be received by registrant. In no event will the aggregate offering price of all types of securities issued by the registrant pursuant to this registration statement exceed $75,000,000. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. Includes an indeterminate number of depositary shares evidenced by depositary receipts as may be issued in the event that Sussex Bancorp elects to offer fractional interests in its preferred stock registered hereby. Pursuant to Rule 457(n), no additional registration fee is payable in respect of the registration of the guarantee.
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(2)
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Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(o) of the rules and regulations under the Securities Act of 1933, as amended, and based upon the maximum aggregate offering price of all securities being registered.
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(3)
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Omitted pursuant to General Instruction II.D of Form S-3 under the Securities Act of 1933, as amended.
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(4)
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This registration statement covers senior and subordinated debt securities of Sussex Bancorp.
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(5)
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Calculated pursuant to Rule 457(o) of the Securities Act of 1933, based on the maximum aggregate offering price of all securities registered hereunder.
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The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any state where such offer or sale is not permitted.
Subject To Completion,
Dated May 31, 2017
PROSPECTUS
SUSSEX BANCORP
Common Stock, Preferred Stock, Depositary
Shares, Debt Securities,
Purchase Contracts, Units and Warrants
By this prospectus, we may offer from time to time:
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warrants exercisable for debt securities, common stock or preferred stock.
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This prospectus provides a general description of the securities
we may offer. When Sussex Bancorp Inc. offers securities, it will provide you with a prospectus supplement describing the specific
terms of the securities, including the price.
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.
Investing in our securities involves risks. See “
Risk
Factors
” in our most recent annual report on Form 10-K, which is incorporated herein by reference, and in any of our
subsequently filed quarterly and current reports that are incorporated herein by reference and any applicable prospectus supplement.
You should read this prospectus and any prospectus supplement
carefully before you decide to invest. This prospectus may not be used to sell securities unless it is accompanied by a prospectus
supplement that further describes the securities being delivered to you.
Sussex Bancorp’s common stock is listed for trading on
the NASDAQ Global Market under the symbol “SBBX.” We have not yet determined whether any of the other securities that
may be offered by this prospectus will be listed on any exchange, or included in any inter-dealer quotation system or over-the-counter
market. If we decide to seek the listing or inclusion of any such securities upon issuance, the prospectus supplement relating
to those securities will disclose the exchange, quotation system or market on or in which the securities will be listed or included.
The offered securities are not deposits or obligations of
a bank or savings associations and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental
agency.
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.
The date of this prospectus is May 31,
2017.
No dealer, salesperson or other person is authorized to give
any information or to represent anything not contained in this prospectus or any accompanying prospectus supplement. You must not
rely on any unauthorized information or representations. This prospectus and any prospectus supplement together are an offer to
sell only the securities offered hereby and thereby, but only under circumstances and in jurisdictions where it is lawful to do
so. The information contained herein and in any accompanying prospectus supplement is current only as of its date.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under
this shelf registration statement, we may sell, either separately or together, common stock, preferred stock, debt securities,
depositary shares, purchase contracts, units and warrants.
Each time we sell securities, we will provide a prospectus supplement
containing specific information about the terms of the securities being offered. The prospectus supplement may include a discussion
of any risk factors or other special considerations that apply to those securities. The prospectus supplement may also add, update
or change the information in this prospectus. If there is any inconsistency between the information in this prospectus (including
the information incorporated by reference herein) and any prospectus supplement, you should rely on the information in the applicable
prospectus supplement. You should read both this prospectus and any prospectus supplement together with additional information
described under the heading “Where You Can Find More Information.”
We have not authorized anyone to provide you with different
information. You should not assume that the information in this prospectus, or any supplement to this prospectus, is accurate at
any date other than the date indicated on the cover page of these documents.
References in this prospectus to “Sussex Bancorp,”
“the Corporation,” “the Company,” “we,” “us” and “our” are to Sussex
Bancorp. In this prospectus, we sometimes refer to the debt securities, common stock, preferred stock, depository shares, purchase
contracts, units, and warrants collectively as “offered securities.”
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Because our common stock trades on the NASDAQ Global Market under the symbol “SBBX,”
those materials can also be inspected and copied at the offices of that organization. Here are ways you can review and obtain copies
of this information:
What is Available
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Where to
Get it
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Paper copies of information
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SEC’s Public Reference Room
100 F Street, N.E.
Washington, D.C. 20549
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On-line information, free of charge
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SEC’s Internet website at www.sec.gov
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Information about the SEC’s Public Reference Room
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Call the SEC at 1-800-SEC-0330
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We have filed with the SEC a registration statement on Form S-3
under the Securities Act of 1933, as amended (the “Securities Act”), relating to the securities covered by this prospectus.
The registration statement, including the attached exhibits and schedules, contains additional relevant information about us and
the securities. This prospectus does not contain all of the information set forth in the registration statement. Whenever a reference
is made in this prospectus to a contract or other document, the reference is only a summary and you should refer to the exhibits
that form a part of the registration statement for a copy of the contract or other document. You can get a copy of the registration
statement, at prescribed rates, from the sources listed above. The registration statement and the documents referred to below under
“Incorporation of Certain Documents by Reference” are also available on our Internet website,
www.sussexbank.com
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Other than any documents expressly incorporated by reference herein, the information contained on our website does not constitute
a part of this prospectus.
You can also obtain these documents from us, without charge (other than exhibits, unless the exhibits
are specifically incorporated by reference), by requesting them in writing or by telephone at the following address:
Sussex Bancorp
100 Enterprise Dr., Suite 700
Rockaway, New Jersey 07866
(844) 256-7328
Attn: Corporate Secretary
Internet Website: www.sussexbank.com
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC allows us to “incorporate by reference”
information into this prospectus. This means that we can disclose important information to you by referring you to another document
filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by other information that is included in or incorporated by reference into this document.
This prospectus incorporates by reference the documents listed
below that we have previously filed with the SEC. These documents contain important information about us:
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our Annual Report on Form 10-K for the year ended December 31, 2016 filed on March 17, 2017 (including information incorporated
by reference in the Form 10-K from our definitive proxy statement for the 2017 annual meeting of shareholders, which was filed
on March 23, 2017);
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our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2017, filed with the SEC on May 10, 2017;
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our Current Reports on Form 8-K filed with the SEC on January 27, 2017, January 31, 2017, April 11, 2017, April 27, 2017 and
April 28, 2017 (except for portions of such report which were deemed to be furnished and not filed); and
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the description of our common stock contained in our Registration Statement on Form 8-A, including any amendments or reports
filed for the purpose of updating such description.
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We incorporate by reference any additional documents that we
may file with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (other than
those furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K or other information “furnished” to the
SEC), from the date of the registration statement of which this prospectus is part until the termination of the offering of the
securities. These documents may include annual, quarterly and current reports, as well as proxy statements. Any material that we
later file with the SEC will automatically update and replace the information previously filed with the SEC. These documents are
available to you without charge. See “Where You Can Find More Information.”
For purposes of this registration statement, any statement contained
in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the
extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such statement in such document.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the information included or incorporated
by reference in it include “forward-looking statements” within the meaning of the Private Securities Litigation Reform
Act of 1995. These statements may be identified by the use of such words as “believe,” “expect,” “anticipate,”
“should,” “planned,” “estimated” and “potential.” Examples of forward-looking statements
include, but are not limited to, estimates with respect to our financial condition, results of operation and business that are
subject to various factors which could cause actual results to differ materially from these estimates. These factors include, but
are not limited to:
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changes in the interest rate environment that reduce margins;
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changes in the regulatory environment;
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the highly competitive industry and market area in which we operate;
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general economic conditions, either nationally or regionally, resulting in, among other things, a deterioration in credit quality;
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changes in business conditions and inflation;
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changes in credit market conditions;
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changes in the securities markets which affect investment management revenues;
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increases in Federal Deposit Insurance Corporation deposit insurance premiums and assessments could adversely affect our financial
condition;
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changes in technology used in the banking business;
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the soundness of other financial services institutions which may adversely affect our credit risk;
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our controls and procedures may fail or be circumvented;
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new lines of business or new products and services which may subject us to additional risks;
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changes in key management personnel which may adversely impact our operations;
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the effect on our operations of recent legislative and regulatory initiatives that were or may be enacted in response to the
ongoing financial crisis;
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severe weather, natural disasters, acts of war or terrorism and other external events which could significantly impact our
business; and
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other factors detailed from time to time in our filings with the SEC.
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Although we believe that the expectations reflected in such
forward-looking statements are reasonable, actual results may differ materially from the results discussed in these forward-looking
statements. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date
hereof. We do not undertake any obligation to republish revised forward-looking statements to reflect events or circumstances after
the date hereof or to reflect the occurrence of unanticipated events.
ABOUT SUSSEX BANCORP
2
We are a a bank holding company under the Bank Holding Company
Act of 1956, as amended and was incorporated under the laws of the State of New Jersey in January 1996. The Company is the parent
company of Sussex Bank. The only significant asset of Sussex Bancorp is its investment in Sussex Bank, which is a commercial bank
formed under the laws of the State of New Jersey in 1975 and is regulated by the New Jersey Department of Banking and Insurance
and the Federal Deposit Insurance Corporation.
Sussex Bank’s wholly owned subsidiaries are SCB Investment
Company, Inc., SCBNY Company, Inc., ClassicLake Enterprises, LLC, PPD Holding Company, LLC and Tri-State Insurance Agency, Inc.
(“Tri-State”). SCB Investment Company, Inc. and SCBNY Company, Inc. hold portions of Sussex Bank’s investment
portfolio. ClassicLake Enterprises, LLC and PPD Holding Company, LLC hold certain foreclosed properties. Tri-State provides insurance
agency services mostly through the sale of property and casualty insurance policies.
Sussex Bank’s service area primarily consists of Sussex,
Morris and Bergen Counties in New Jersey and Queens County, New York; although we make loans throughout New Jersey and the New
York metropolitan markets. Sussex Bank operates from its corporate office in Rockaway, New Jersey, its eleven branch offices located
in Andover, Augusta, Franklin, Hackettstown, Montague, Newton, Oradell, Sparta, Vernon, and Wantage, New Jersey, and in Astoria,
New York, its regional office and corporate center in Wantage, New Jersey and its insurance agency offices in Augusta and Oradell,
New Jersey. In addition, Sussex Bank provides online banking services through its website located at www.sussexbank.com.
Our common stock is traded on the NASDAQ Global Stock Market
under the symbol “SBBX.” Our principal executive offices are located at 100 Enterprise Drive, Suite 700, Rockaway,
New Jersey 07866. Our telephone number is (844) 256-7328. Our website is www.sussexbank.com. References to our website are not
intended to be active links and the information on such website is not, and shall not be considered, a part of this prospectus.
Recent Developments
On April 11, 2017, we announced the signing of a definitive
merger agreement to acquire Community Bank of Bergen County, NJ, a New Jersey-chartered bank (“Community”) in an all-stock
transaction (the “Merger”). Pursuant to the terms of the plan of bank merger to be entered into by the Sussex
Bank and Community, Community will be merged with and into Sussex Bank, with Sussex Bank surviving. Under the terms of the merger
agreement, each outstanding share of Community common stock will be converted into the right to receive 0.97 shares of our common
stock. The transaction is expected to close in the third quarter of 2017, subject to customary closing conditions, including receipt
of regulatory approvals and the approvals of our shareholders and those of Community.
2
NTD: Revisit this section to determine if updates are needed based on changes to draft S-4.
RISK FACTORS
We have included discussions of cautionary factors describing
risks relating to our business and an investment in our securities in our Annual Report on Form 10-K for the year ended
December 31, 2016, as well as the risks, uncertainties and additional information set forth in the other documents incorporated
by reference in this prospectus. For a description of these reports and documents, and information about where you can find them,
see “Where You Can Find More Information” and “Incorporation of Certain Documents By Reference.” Additional
risks related to our securities may also be described in a prospectus supplement. Before purchasing our securities, you should
carefully consider the risk factors we describe in any prospectus supplement or in any report incorporated by reference into this
prospectus or such prospectus supplement. Although we discuss key risks in those risk factor descriptions, additional risks not
currently known to us or that we currently deem immaterial also may impair our business. Our subsequent filings with the SEC may
contain amended and updated discussions of significant risks. We cannot predict future risks or estimate the extent to which they
may affect our financial performance.
RATIOS OF EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
Our historical ratios of earnings to fixed charges for the periods
indicated are set forth in the table below. As of May 26, 2017, we had no shares of preferred stock outstanding and no shares of
preferred stock have been issued within the past five years. Therefore, the ratio of earnings to fixed charges and preferred stock
dividends is the same as the ratio of earnings to fixed charges.
The ratio of earnings to fixed charges is computed by dividing
(1) income from continuing operations before income taxes and fixed charges by (2) total fixed charges. The ratios are
presented in two separate calculations – one including, and one excluding, interest expense on deposits. For purposes of
computing these ratios:
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earnings consist of income before income taxes plus fixed charges;
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fixed charges, excluding interest on deposits, include interest expense (other than on deposits) and the estimated portion
of rental expense attributable to interest; and
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fixed charges, including interest on deposits, include all interest expense and the estimated portion of rental expense attributable
to interest.
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Ratio of Earnings to Combined Fixed Charges
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Three Months Ended
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Year Ended
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March 31,
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December 31,
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2017
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2016
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2015
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2014
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2013
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2012
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Including interest on deposits
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2.87
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2.75
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2.50
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2.09
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1.49
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1.11
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Excluding interest on deposits
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4.54
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4.61
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3.97
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3.19
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2.14
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1.31
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USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement,
we expect to use the net proceeds from the sale of offered securities for general corporate purposes, including:
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refinancing, reduction or repayment of debt;
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redeeming outstanding securities;
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funding investments in, or extensions of credit to, our banking subsidiary and our other subsidiaries as regulatory capital;
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financing of possible acquisitions;
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expansion of the business;
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investments at the holding company level; and
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The prospectus supplement with respect to an offering of offered
securities may identify different or additional uses for the proceeds of that offering.
Except as otherwise stated in an applicable prospectus supplement,
pending the application of the net proceeds, we expect to temporarily invest the proceeds from the sale of offered securities in
short-term obligations.
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplements, summarize certain material terms and provisions of the various types of securities
that we may offer. The particular material terms of the securities offered by a prospectus supplement will be described in that
prospectus supplement. If indicated in the applicable prospectus supplement, the terms of the offered securities may differ from
the terms summarized below. The prospectus supplement will also contain information, where applicable, about material U.S. federal
income tax considerations relating to the offered securities, and the securities exchange, if any, on which the offered securities
will be listed. The descriptions herein and in the applicable prospectus supplement do not contain all of the information that
you may find useful or that may be important to you. You should refer to the provisions of the actual documents whose terms are
summarized herein and in the applicable prospectus supplement, because those documents, and not the summaries, define your rights
as holders of the relevant securities. For more information, please review the forms of these documents, which are or will be filed
with the SEC and will be available as described under the heading “Where You Can Find More Information” above.
We may offer and sell from time to time, in one or more offerings,
the following:
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warrants exercisable for debt securities, common stock or preferred stock.
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DESCRIPTION OF COMMON STOCK
The following description is a general summary of the terms
of our common stock. The description below does not purport to be complete and is subject to and qualified in its entirety by reference
to our Restated Certificate of Incorporation and Amended and Restated By-laws, referred to herein as our “certificate of
incorporation” and “bylaws,” respectively. The description herein does not contain all of the information that
you may find useful or that may be important to you. You should refer to the provisions of our certificate of incorporation
and bylaws because they, and not the summaries, define the rights of holders of shares of our common stock. You can obtain copies
of our certificate of incorporation and bylaws by following the directions under the heading “Where You Can Find More Information.”
General
Our certificate of incorporation authorizes us to issue 11,000,000
shares of stock, 10,000,000 of which is common stock, no par value; and 1,000,000 of which is preferred stock, issued in one or
more classes or series, no par value. As of May 26, 2017, there were 4,791,003 shares of common stock issued and we had outstanding
stock options and restricted stock units granted to directors, officers and other employees for 158,800 shares of our common stock.
Each share of our common stock has the same relative rights
and is identical in all respects to each other share of our common stock. Our common stock is non-withdrawable capital, is not
of an insurable type and is not insured by the Federal Deposit Insurance Corporation or any other governmental entity.
Voting Rights
Holders of our common stock are entitled to one vote for each
such share standing in such holder’s name on each matter properly submitted to shareholders for their vote, including the
election of directors. Holders of our common stock do not have the right to cumulate their votes for the election of directors.
Subject to certain exceptions, whenever any corporate action is to be taken by a vote of the shareholders, it will be authorized
by the affirmative vote of a majority of the votes cast by all shareholders entitled to vote thereon. Directors receiving a plurality
of the votes cast shall be elected.
Liquidation Rights
The board of directors of the Company is expressly authorized
to determine, among other rights, the rights of the shares of the class or series in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Company.
Dividends
To the extent permitted by law, the board of directors shall
have full power and discretion, subject to the provisions of the certificate of incorporation and the terms of any other corporate
document or instrument binding upon the Company, to determine the amount of any dividends or distributions which shall be declared
and paid or made. Under New Jersey law, the Company may, by resolution of the board of directors, pay dividends on its shares in
cash, in its own shares, in its bonds or in other property, provided, that any such dividend or distribution is not permitted if,
after giving effect to such dividend or distribution, the Company would be unable to pay its debts as they become due in the usual
course of business or the Company’s total assets would be less than its total liabilities. As a holding company, our ability
to pay distributions is affected by the ability of our subsidiaries to pay dividends. The ability of our bank subsidiary, and our
ability, to pay dividends in the future is, and could in the future be further, influenced by bank regulatory requirements and
capital guidelines.
Miscellaneous
The holders of our common stock have no preemptive or conversion
rights for any shares that may be issued. Our common stock is not subject to additional calls or assessments, and all shares of
our common stock currently outstanding are fully paid and non-assessable. All shares of common stock offered pursuant to a prospectus
supplement, or issuable upon conversion, exchange or exercise of any preferred stock or other convertible securities, will, when
issued, be fully paid and non-assessable, which means that the full purchase price of the shares will have been paid and the holders
of the shares will not be assessed any additional monies for the shares.
Certain Certificate of Incorporation and Bylaw Provisions
Our certificate of incorporation and bylaws provide for the
division of our board of directors into three classes of directors, each class as nearly as equal as possible, with each serving
staggered terms. Our bylaws may be made, altered or repealed by the board of directors, subject to the rights of the shareholders
as provided for in New Jersey corporate law, to alter or repeal any bylaw made by the board of directors. Additionally, under New
Jersey law, the affirmative vote of at least majority of the outstanding shares of each class entitled to vote is required to effect
a merger or consolidation of the Company into another company that is not a wholly owned subsidiary of the Company.
Some of the foregoing provisions, as well as certain other provisions
in our certificate of incorporation, applicable New Jersey corporate law and applicable banking laws, may have the effect of deterring
hostile takeovers or delaying changes in control or management of us.
Our certificate of incorporation provides that any vacancy for
any reason, and any directorships resulting from any increase in the number of directors, may be filled by the board of directors,
acting by a majority of the directors then in office, and such elected directors hold office until the next election of the class
for which such directors shall have been chosen and until their successors shall be elected and qualified. Our bylaws provide that
any vacancy in the board of directors, however caused, and newly created directorships resulting from an increase in the number
of directors may be filled by the vote of a majority of the directors then in office, or by a sole remaining director, and such
elected directors hold office until the next election of the class for which such directors shall have been chosen and until their
successors shall be elected and qualified. The new director will hold the office until the next annual meeting.
The classification of our board of directors and the limitations
on removal of directors and filling of vacancies could have the effect of making it more difficult for a third party to acquire,
or of discouraging a third party from, acquiring us.
Our bylaws also provide that:
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any action required or permitted to be taken by the shareholders at an annual meeting or special meeting of shareholders may
only be taken if it is properly brought before such meeting; and
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special meetings of the shareholders can be called for any purpose by: (i) the chairman of the board of directors; (ii) the
majority of the board of directors, by written request; (iii) the chief executive officer (“CEO”); (iv) the President;
or (v) by the CEO or Secretary in response to a written request from holder(s) of the majority of the outstanding stock entitled
to vote. The written request must specify the purpose of the special meeting. The required notice for a special meeting is the
same as other shareholder meetings.
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Our bylaws provide that, in order for any shareholder for business
(including, but not limited to, any nominations for director) to be properly brought before an annual meeting by a shareholder,
such shareholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely,
a shareholder’s notice to the Secretary must be delivered to or mailed and received at our principal executive offices not
less than 90 days nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting of shareholders;
provided
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that in the event that the annual meeting is called for a date that is not within 30 days before or after such anniversary
date, notice by the shareholder in order to be timely must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
Our bylaws also provide that subject to the rights of holders
of any class or series of capital stock then outstanding, nominations for the election or re-election of directors at a meeting
of the shareholders may be made by any shareholder entitled to vote in the election of directors generally who complies with the
procedures set forth in our bylaws and who is a shareholder of record (i) on the date of the giving of the notice provided as required
by the bylaws and (ii) on the record date for the determination of shareholders entitled to vote at such meeting. Notice delivered
by such shareholder must be timely and delivered to our principal executive officers.
The purpose of requiring shareholders to give us advance notice
of nominations and other shareholder business is to afford our board of directors a meaningful opportunity to consider the qualifications
of the proposed nominees and the advisability of the other proposed business and, to the extent deemed necessary or desirable by
our board of directors, to inform shareholders and make recommendations about such qualifications or business, as well as to provide
a more orderly procedure for conducting meetings of shareholders. Although our bylaws do not give our board of directors any power
to disapprove shareholder nominations for the election of directors or proposals for action, they may have the effect of precluding
a contest for the election of directors or the consideration of shareholder proposals if proper procedures are not followed and
of discouraging or deterring a third party from conducting a solicitation of proxies to elect its own slate of directors or to
approve its own proposal without regard to whether consideration of such nominees or proposals might be harmful or beneficial to
us and our shareholders. These provisions could also delay shareholder actions which are favored by the holders of a majority of
our outstanding voting securities until the next shareholders’ meeting.
Since the terms of our certificate of incorporation and bylaws,
may differ from the general information we are providing, you should only rely on the actual provisions of our certificate of incorporation
and bylaws. If you would like to read our certificate of incorporation and bylaws, you may request a copy from us by following
the directions under the heading “Where You Can Find More Information.”
NASDAQ Listing
Our common stock is listed on the NASDAQ Global Market under
the symbol “SBBX.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American
Stock Transfer & Trust Company, LLC.
DESCRIPTION OF PREFERRED STOCK
The following description is a general summary of the terms
of the preferred stock which we may issue. The description below and in any prospectus supplement does not purport to be complete
and is subject to and qualified in its entirety by reference to our certificate of incorporation, and the applicable certificate
of designation to our certificate of incorporation, determining the terms of the related series of preferred stock and our bylaws,
each of which we will make available upon request. The descriptions herein and in the applicable prospectus supplement do not contain
all of the information that you may find useful or that may be important to you. You should refer to the provisions of our certificate
of incorporation, the applicable certificate of designation and our bylaws because they, and not the summaries, define your rights
as holders of shares of our common stock.
General
We are authorized to issue 1,000,000 shares of preferred stock,
no par value. As of May 26, 2017, no shares of preferred stock were issued and outstanding. Our certificate of incorporation, subject
to limitations prescribed in our certificate of incorporation and subject to limitations prescribed by New Jersey law, authorizes
the board of directors, from time to time to adopt and to cause to be executed and filed without further approval of the shareholders,
amendments to the certificate of incorporation authorizing the issuance of shares of preferred stock, in one or more series, for
such consideration as the board of directors may fix.
Terms of the Preferred Stock That We May Offer and Sell
to You
Prior to the issuance of a new series of preferred stock, we
will further amend our restated certificate of incorporation, as amended, designating the stock of that series and the terms of
that series. The issuance of any preferred stock could adversely affect the rights of the holders of common stock and, therefore,
reduce the value of the common stock. The ability of our board of directors to issue preferred stock could discourage, delay or
prevent a takeover or other corporate action.
You should refer to the prospectus supplement relating to the
class or series of preferred stock being offered for the specific terms of that class or series, including:
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the designation, stated value and liquidation preference of such preferred stock and the amount of stock offered;
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the dividend rate or rates (or method of calculation), the date or dates from which dividends shall accrue, and whether such
dividends shall be cumulative or noncumulative and, if cumulative, the dates from which dividends shall commence to cumulate;
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any redemption or sinking fund provisions;
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the amount that shares of such series shall be entitled to receive in the event of our liquidation, dissolution or winding-up;
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the terms and conditions, if any, on which shares of such series shall be convertible or exchangeable for shares of our stock
of any other class or classes, or other series of the same class;
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the voting rights, if any, of shares of such series;
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the status as to reissuance or sale of shares of such series redeemed, purchased or otherwise reacquired, or surrendered to
us on conversion or exchange;
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the conditions and restrictions, if any, on the payment of dividends or on the making of other distributions on, or the purchase,
redemption or other acquisition by us or any subsidiary, of the common stock or of any other class of our shares ranking junior
to the shares of such series as to dividends or upon liquidation;
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the conditions and restrictions, if any, on the creation of indebtedness by us or by any subsidiary, or on the issuance of
any additional stock ranking on a parity with or prior to the shares of such series as to dividends or upon liquidation; and
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any additional dividend, liquidation, redemption, sinking or retirement fund and other rights, preferences, privileges, limitations
and restrictions of such preferred stock.
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The description of the terms of a particular series of preferred
stock in the applicable prospectus supplement will not be complete. You should refer to the applicable amendment to our restated
certificate of incorporation, as amended, for complete information regarding a series of preferred stock.
The preferred stock will, when issued against payment of the
consideration payable therefor, be fully paid and non-assessable. Unless otherwise specified in the applicable prospectus supplement,
each series of preferred stock will, upon issuance, rank senior to the common stock and on a parity in all respects with each other
outstanding series of preferred stock. The rights of the holders of our preferred stock will be subordinate to that of our general
creditors.
DESCRIPTION OF DEPOSITARY SHARES
The following description, together with the applicable prospectus
supplements, summarizes certain terms and provisions of the depositary shares that we may offer under this prospectus and the related
deposit agreements and depositary receipts. The following summary relates to terms and conditions applicable to these types of
securities generally. The particular terms of any series of depositary shares will be those set forth in the applicable deposit
agreement and summarized in the applicable prospectus supplement. If indicated in the applicable prospectus supplement, the terms
of any series may differ from the terms summarized below.
Specific deposit agreements and depositary receipts will contain
additional important terms and provisions and will be incorporated by reference into the registration statement which includes
this prospectus before we issue any depositary shares. The descriptions herein and in the applicable prospectus supplement do not
restate those agreements and receipts in their entirety and do not contain all of the information that you may find useful or that
may be important to you. You should refer to the provisions of the applicable deposit agreement and deposit certificate because
they, and not the summaries, define your rights as holders of the depositary shares. For more information, please review the forms
of these documents, which will be filed with the SEC promptly after the offering of depositary shares or depositary share units
and will be available as described under the heading “Where You Can Find More Information” above.
General
We may elect to offer fractional shares of preferred stock rather
than full shares of preferred stock. If so, we will issue “depositary receipts” for these “depositary shares.”
Each depositary share will represent a fraction of a share of a particular series of preferred stock. Each holder of a depositary
share will be entitled, in proportion to the fraction of preferred stock represented by that depositary share, to the rights and
preferences of the preferred stock, including dividend, voting, redemption, conversion and liquidation rights, if any. We will
enter into a deposit agreement with a depositary, which will be named in the related prospectus supplement.
In order to issue depositary shares, we will issue preferred
stock and immediately deposit these shares with the depositary. The depositary will then issue and deliver depositary receipts
to the persons who purchase depositary shares. Each whole depositary share issued by the depositary may represent a fraction of
a share held by the depositary. The depositary will issue depositary receipts in a form that reflects whole depositary shares,
and each depositary receipt may evidence any number of whole depositary shares.
Pending the preparation of definitive engraved depositary receipts,
a depositary may, upon our written order, issue temporary depositary receipts, which will temporarily entitle the holders to all
the rights pertaining to the definitive depositary receipts. We will bear the costs and expenses of promptly preparing definitive
depositary receipts and of exchanging the temporary depositary receipts for definitive depositary receipts.
Dividends and Other Distributions
The depositary will distribute all cash and non-cash dividends
and distributions it receives with respect to the underlying preferred stock to the record holders of depositary shares in proportion
to the number of depositary shares they hold. In the case of non-cash distributions, the depositary may determine that it is not
feasible to make the distribution. If so, the depositary may, with our approval, sell the property and distribute the net proceeds
from the sale to the holders. The amounts distributed by the depositary will be reduced by any amount required to be withheld by
us or the depositary on account of taxes.
Redemption of Depositary Shares
If we redeem the series of preferred stock that underlies the
depositary shares, the depositary will redeem the depositary shares from the proceeds it receives from the redemption of the preferred
stock it holds. The depositary will redeem the number of depositary shares that represent the amount of underlying preferred stock
that we have redeemed. The redemption price for depositary shares will be in proportion to the redemption price per share that
we paid for the underlying preferred stock. If we redeem less than all of the depositary shares, the depositary will select which
depositary shares to redeem by lot, or some substantially equivalent method.
After a redemption date is fixed, the depositary shares to be
redeemed no longer will be considered outstanding. The rights of the holders of the depositary shares will cease, except for the
rights to receive money or other property upon redemption. In order to redeem their depositary shares, holders will surrender their
depositary receipts to the depositary.
Voting the Preferred Stock
We will notify the depositary about any meeting at which the
holders of preferred stock are entitled to vote, and the depositary will mail the information to the record holders of depositary
shares related to that preferred stock. Each record holder of depositary shares on the record date will be entitled to instruct
the depositary on how to vote the shares of preferred stock represented by that holder’s depositary shares. The depositary
will vote the preferred stock represented by the depositary shares in accordance with these instructions, provided the depositary
receives these instructions sufficiently in advance of the meeting. If the depositary does not receive instructions from the holders
of the depositary shares, the depositary will abstain from voting the preferred stock that underlies those depositary shares.
Withdrawal of Preferred Stock
When a holder surrenders depositary receipts at the corporate
trust office of the depositary, and pays any necessary taxes, charges or other fees, the holder will be entitled to receive the
number of whole shares of the related series of preferred stock, and any money or other property, if any, represented by the holder’s
depositary shares. Once a holder exchanges depositary shares for whole shares of preferred stock, that holder cannot “re-deposit”
these shares of preferred stock with the depositary, or exchange them for depositary shares. If a holder delivers depositary receipts
that represent a number of depositary shares that exceeds the number of whole shares of related preferred stock the holder seeks
to withdraw, the depositary will issue a new depositary receipt to the holder that evidences the excess number of depositary shares.
Amendment and Termination of the Deposit Agreement
Sussex Bancorp and the depositary can agree, at any time, to
amend the form of depositary receipt and any provisions of the depositary receipt and any provisions of the deposit agreement.
However, if an amendment has a material adverse effect on the rights of the holders of related depositary shares, the holders of
at least a majority of the depositary shares then outstanding must first approve the amendment. Every holder of a depositary receipt
at the time an amendment becomes effective will be bound by the amended deposit agreement. However, subject to any conditions in
the deposit agreement or applicable law, no amendment can impair the right of any holder of a depositary share to receive shares
of the related preferred stock, or any money or other property represented by the depositary shares, when they surrender their
depositary receipts.
We can terminate the deposit agreement at any time, as long
as the depositary mails notice of termination to the record holders of depositary shares then outstanding at least 30 days prior
to the date fixed for termination. Upon termination, the depositary shall deliver to each holder of depositary receipts, upon surrender
of the depositary receipts held by such holder, such number of whole or fractional shares of preferred stock as are represented
by the depositary shares evidenced by such depositary receipts, together with any other property held by the depositary with respect
to such depositary receipt.
Charges of Depositary
We will pay all transfer and other taxes and the government
charges that relate solely to the depositary arrangements. We will also pay the charges of each depositary, including charges in
connection with the initial deposit of the related series of preferred stock, the initial issuance of the depositary shares, and
all withdrawals of shares of the related series of preferred stock. However, holders of depositary receipts will pay the fees and
expenses of the depositary for any duties requested by such holders to be performed which are outside of those expressly provided
for in the deposit agreement.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering written
notice of its decision to us. We may remove the depositary at any time. Any resignation or removal will take effect when we appoint
a successor depositary. We must appoint the successor depositary within 60 days after delivery of the notice of resignation or
removal. The successor depositary must be a bank or trust company that has its principal office in the United States and has a
combined capital and surplus of at least $50,000,000.
Miscellaneous
We will be required to furnish certain information to the holders
of the preferred stock underlying any depositary shares. The depositary, as the holder of the underlying preferred stock, will
forward any report or information it receives from us to the holders of depositary shares.
Neither the depositary nor Sussex Bancorp will be liable if
its ability to perform its obligations under the deposit agreement is prevented or delayed by law or any circumstance beyond its
control. Both Sussex Bancorp and the depositary will be obligated to use their best judgment and to act in good faith in performing
their respective duties under the deposit agreement. Each of Sussex Bancorp and the depositary will be liable only for gross negligence
and willful misconduct in performing their duties under the deposit agreement. They will not be obligated to appear in, prosecute
or defend any legal proceeding with respect to any depositary receipts, depositary shares or preferred stock unless they receive
what they, in their sole discretion, determine to be a satisfactory indemnity from one or more holders of the depositary shares.
Sussex Bancorp and the depositary will evaluate any proposed indemnity in order to determine whether the financial protection afforded
by the indemnity is sufficient to reduce each party’s risk to a satisfactory and customary level. Sussex Bancorp and the
depositary may rely on the advice of legal counsel or accountants of their choice. They may also rely on information provided by
persons they believe, in good faith, to be competent, and on documents they believe, in good faith, to be genuine.
The applicable prospectus supplement will identify the depositary’s
corporate trust office. Unless the prospectus supplement indicates otherwise, the depositary will act as transfer agent and registrar
for depositary receipts, and if we redeem shares of preferred stock, the depositary will act as redemption agent for the corresponding
depositary receipts.
Title
Sussex Bancorp, each depositary and any agent of Sussex Bancorp
or the applicable depositary may treat the registered owner of any depositary share as the absolute owner of the depositary shares
for all purposes, including making payment, regardless of whether any payment in respect of the depositary share is overdue and
regardless of any notice to the contrary.
DESCRIPTION OF DEBT SECURITIES
Description of Senior Debt Securities and Subordinated Debt
Securities
General
We may issue senior debt securities and/or subordinated debt
securities, which in each case will be unsecured, direct, general obligations of Sussex Bancorp.
The senior debt securities will rank equally with all our other
unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in priority of payment to senior
debt securities of Sussex Bancorp, as described below under “–Subordination of Subordinated Debt Securities”
and in the prospectus supplement applicable to any subordinated debt securities that we may offer. For purposes of the descriptions
under the heading “–Description of Senior Debt Securities and Subordinated Debt Securities,” we may refer to
the senior debt securities and the subordinated debt securities collectively as the “debt securities.” The debt securities
will be effectively subordinated to the creditors and preferred equity holders of our subsidiaries.
We will issue senior debt securities under a senior debt indenture
and subordinated debt securities under a separate subordinated debt indenture. Provisions relating to the issuance of debt securities
may also be set forth in a supplemental indenture to either of the indentures. For purposes of the descriptions under the heading
“–Description of Senior Debt Securities and Subordinated Debt Securities,” we may refer to the senior debt indenture
and the subordinated debt indenture and any related supplemental indentures, as “an indenture” or, collectively, as
“the indentures.” The indentures will be qualified under and governed by the Trust Indenture Act of 1939.
Each indenture will be between Sussex Bancorp and a trustee
that meets the requirements of the Trust Indenture Act. We expect that each indenture will provide that there may be more than
one trustee under that indenture, each with respect to one or more series of debt securities. Any trustee under an indenture may
resign or be removed with respect to one or more series of debt securities and, in that event, we may appoint a successor trustee.
Except as otherwise provided in the indenture or supplemental indenture, any action permitted to be taken by a trustee may be taken
by that trustee only with respect to the one or more series of debt securities for which it is trustee under the applicable indenture.
The descriptions under the heading “–Description
of Senior Debt Securities and Subordinated Debt Securities” relating to the debt securities and the indentures are summaries
of their provisions. The summaries are not complete and are qualified in their entirety by reference to the actual indentures and
debt securities and the further descriptions in the applicable prospectus supplement. A form of the senior debt indenture and a
form of the subordinated debt indenture under which we may issue our senior debt securities and subordinated debt securities, respectively,
and the forms of the debt securities, have been filed with the SEC as exhibits to the registration statement that includes this
prospectus and will be available as described under the heading “Where You Can Find More Information” above. Whenever
we refer in this prospectus or in any prospectus supplement to particular sections or defined terms of an indenture, those sections
or defined terms are incorporated by reference in this prospectus or in the prospectus supplement, as applicable. You should refer
to the provisions of the indentures for provisions that may be important to you.
The terms and conditions described under this heading are terms
and conditions that apply generally to the debt securities. The particular terms of any series of debt securities will be summarized
in the applicable prospectus supplement. Those terms may differ from the terms summarized below.
Except as set forth in the applicable indenture or in a supplemental
indenture and described in an applicable prospectus supplement, the indentures do not limit the amount of debt securities we may
issue under the indentures. We are not required to issue all of the debt securities of one series at the same time and, unless
otherwise provided in the applicable indenture or supplemental indenture and described in the applicable prospectus supplement,
we may, from time to time, reopen any series and issue additional debt securities under that series without the consent of the
holders of the outstanding debt securities of that series. Additional notes issued in this manner will have the same terms and
conditions as the outstanding debt securities of that series, except for their original issue date and issue price, and will be
consolidated with, and form a single series with, the previously outstanding debt securities of that series.
Terms of Debt Securities to be Included in the Prospectus
Supplement
The prospectus supplement relating to any series of debt securities
that we may offer will set forth the price or prices at which the debt securities will be offered, and will contain the specific
terms of the debt securities of that series. These terms may include, without limitation, the following:
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the title of the debt securities and whether they are senior debt securities or subordinated debt securities;
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the amount of debt securities issued and any limit on the amount that may be issued;
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the price(s) (expressed as a percentage of the principal amount) at which the debt securities will be issued;
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if other than the principal amount of those debt securities, the portion of the principal amount payable upon declaration of
acceleration of the maturity of those debt securities;
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the maturity date or dates, or the method for determining the maturity date or dates, on which the principal of the debt securities
will be payable and any rights of extension;
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the rate or rates, which may be fixed or variable, or the method of determining the rate or rates at which the debt securities
will bear interest, if any;
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the date or dates from which any interest will accrue and the date or dates on which any interest will be payable, the regular
related record dates and whether we may elect to extend or defer such interest payment dates;
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the place or places where payments will be payable, where the debt securities may be surrendered for registration of transfer
or exchange and where notices or demands to or upon us may be served;
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the period or periods within which, the price or prices at which and the other terms and conditions upon which the debt securities
may be redeemed, in whole or in part, at our option, if we are to have such an option;
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our obligation, if any, to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision
or at the option of a holder of the debt securities, and the period or periods within which, or the date and dates on which, the
price or prices at which and the other terms and conditions upon which the debt securities will be redeemed, repaid or purchased,
in whole or in part, pursuant to that obligation;
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the currency or currencies in which the debt securities may be purchased, are denominated and are payable, which may be a foreign
currency or units of two or more foreign currencies or a composite currency or currencies, and the related terms and conditions,
including whether we or the holders of any such debt securities may elect to receive payments in respect of such debt securities
in a currency or currency unit other than that in which such debt securities are stated to be payable;
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whether the amount of payments of principal of and premium, if any, or interest, if any, on the debt securities may be determined
with reference to an index, formula or other method, which index, formula or method may, but need not be, based on a currency,
currencies, currency unit or units or composite currency or currencies or with reference to changes in prices of particular securities
or commodities, and the manner in which the amounts are to be determined;
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any additions to, modifications of or deletions from the terms of the debt securities with respect to events of default, amendments,
merger, consolidation and sale or covenants set forth in the applicable indenture;
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whether the debt securities will be issued in certificated or book-entry form;
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whether the debt securities will be in registered or bearer form or both and, if in registered form, their denominations, if
other than $1,000 and any integral multiple thereof, and, if in bearer form, their denominations, if other than $5,000, and the
related terms and conditions;
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if the debt securities will be issuable only in global form, the depository or its nominee with respect to the debt securities
and the circumstances under which the global security may be registered for transfer or exchange in the name of a person other
than the depository or its nominee;
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the applicability, if any, of the defeasance and covenant defeasance provisions of the indenture and any additional or different
terms on which the series of debt securities may be defeased;
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whether and the extent to which the debt securities will be guaranteed, any guarantors and the form of any guarantee;
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whether the debt securities can be converted into or exchanged for other securities of Sussex Bancorp, and the related terms
and conditions;
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in the case of subordinated debt securities, provisions relating to any modification of the subordination provisions described
elsewhere in this prospectus;
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whether the debt securities will be sold as part of units consisting of debt securities and other securities;
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if the debt securities are to be issued upon the exercise of warrants, the time, manner and place for the debt securities to
be authenticated and delivered;
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any trustee, depositary, authenticating agent, paying agent, transfer agent, registrar or other agent with respect to the debt
securities; and
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any other terms of the debt securities.
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Unless otherwise specified in the applicable prospectus supplement,
the debt securities will not be listed on any securities exchange.
We may offer and sell our debt securities at a substantial discount
below their stated principal amount. These debt securities may be original issue discount securities, which means that less than
the entire principal amount of the original issue discount securities will be payable upon declaration of acceleration of their
maturity. Special federal income tax, accounting and other considerations applicable to original issue discount securities will
be described in the applicable prospectus supplement.
We may issue debt securities with a fixed interest rate or a
floating interest rate. Any material federal income tax considerations applicable to any discounted debt securities or to debt
securities issued at par that are treated as having been issued at a discount for federal income tax purposes will be described
in the applicable prospectus supplement.
Except as set forth in the applicable indenture or in a supplemental
indenture, the applicable indenture will not contain any provisions that would limit our ability to incur indebtedness or that
would afford holders of debt securities protection in the event of a highly leveraged or similar transaction involving Sussex Bancorp.
The applicable indenture may contain provisions that would afford debt security holders protection in the event of a change of
control. You should refer to the applicable prospectus supplement for information with respect to any deletions from, modifications
of or additions to the events of default or covenants of Sussex Bancorp that are described below, including any addition of a covenant
or other provision providing event risk or similar protection.
For purposes of the descriptions under the heading “–Description
of Senior Debt Securities and Subordinated Debt Securities”:
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“subsidiary” means a corporation or a partnership or a limited liability company a majority of the outstanding
voting stock or partnership or membership interests, as the case may be, of which is owned or controlled, directly or indirectly,
by Sussex Bancorp or by one or more other subsidiaries of Sussex Bancorp. For the purposes of this definition, “voting stock”
means stock having voting power for the election of directors, or trustees, as the case may be, whether at all times or only so
long as no senior class of stock has voting power by reason of any contingency; and
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“significant subsidiary” means any subsidiary of Sussex Bancorp that is a “significant subsidiary,”
within the meaning of Regulation S-X promulgated by the SEC under the Securities Act.
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Ranking
Senior Debt Securities
Payment of the principal of and premium, if any, and interest
on debt securities we issue under the senior debt indenture will rank equally with all of our unsecured and unsubordinated debt.
Subordination of Subordinated Debt Securities
To the extent provided in the subordinated debt indenture and
any supplemental indenture, and as described in the prospectus supplement describing the applicable series of subordinated debt
securities, the payment of the principal of and premium, if any, and interest on any subordinated debt securities, including amounts
payable on any redemption or repurchase, will be subordinated in right of payment and junior to senior debt, which is defined below.
If there is a distribution to creditors of Sussex Bancorp in a liquidation or dissolution of Sussex Bancorp, or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to Sussex Bancorp, the holders of senior debt will first
be entitled to receive payment in full of all amounts due on the senior debt (or provision shall be made for such payment in cash)
before any payments may be made on the subordinated debt securities. Because of this subordination, general creditors of Sussex
Bancorp may recover more, ratably, than holders of subordinated debt securities in the event of a distribution of assets upon insolvency.
The supplemental indenture will set forth the terms and conditions
under which, if any, we will not be permitted to pay principal, premium, if any, or interest on the related subordinated debt securities
upon the occurrence of an event of default or other circumstances arising under or with respect to senior debt.
The indentures will place no limitation on the amount of senior
debt that we may incur. We expect to incur from time to time additional indebtedness constituting senior debt, which may include
indebtedness that is senior to the subordinated debt securities but subordinate to our other obligations.
“Senior debt” means the principal of, and premium,
if any, and interest, including interest accruing after the commencement of any bankruptcy proceeding relating to Sussex Bancorp,
on, or substantially similar payments we will make in respect of the following categories of debt, whether that debt is outstanding
at the date of execution of the applicable indenture or thereafter incurred, created or assumed:
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other indebtedness of Sussex Bancorp evidenced by notes, debentures, or bonds or other securities issued under the provisions
of any indenture, fiscal agency agreement, note purchase agreement or other agreement, including the senior debt securities that
may be offered by means of this prospectus and one or more prospectus supplements;
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indebtedness of Sussex Bancorp for money borrowed or represented by purchase-money obligations, as defined below;
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our obligations as lessee under leases of property either made as part of a sale and leaseback transaction to which we are
a party or otherwise;
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indebtedness, obligations and liabilities of others in respect of which we are liable contingently or otherwise to pay or advance
money or property or as guarantor, endorser or otherwise or which we have agreed to purchase or otherwise acquire and indebtedness
of partnerships and joint ventures which is included in the Company’s consolidated financial statements;
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reimbursement and other obligations relating to letters of credit, bankers’ acceptances and similar obligations;
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obligations under various hedging arrangements and agreements, including interest rate and currency hedging agreements;
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all our obligations issued or assumed as the deferred purchase price of property or services, but excluding trade accounts
payable and accrued liabilities arising in the ordinary course of business; and
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deferrals, renewals or extensions of any of the indebtedness or obligations described in the eight clauses above.
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However, “senior debt” excludes:
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any indebtedness, obligation or liability referred to in the nine clauses above as to which, in the instrument creating or
evidencing that indebtedness, obligation or liability, it is expressly provided that the indebtedness, obligation or liability
is not senior in right of payment to subordinated debt securities or ranks equally with the subordinated debt securities;
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any indebtedness, obligation or liability which is subordinated to indebtedness of Sussex Bancorp to substantially the same
extent as or to a greater extent than the subordinated debt securities are subordinated, and, unless expressly provided in the
terms thereof; and
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any indebtedness of Sussex Bancorp to its subsidiaries.
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As used above, the term “purchase-money obligations”
means indebtedness, obligations or guarantees evidenced by a note, debenture, bond or other instrument, whether or not secured
by a lien or other security interest, and any deferred obligation for the payment of the purchase price of property but excluding
indebtedness or obligations for which recourse is limited to the property purchased, issued or assumed as all or a part of the
consideration for the acquisition of property or services, whether by purchase, merger, consolidation or otherwise, but does not
include any trade accounts payable. There will not be any restrictions in an indenture relating to subordinated debt securities
upon the creation of additional senior debt.
The applicable prospectus supplement may further describe the
provisions, if any, applicable to the subordination of the subordinated debt securities of a particular series. The applicable
prospectus supplement or the information incorporated by reference in the applicable prospectus supplement or in this prospectus
will describe as of a recent date the approximate amount of our senior debt outstanding as to which the subordinated debt securities
of that series will be subordinated.
Structural Subordination
Because Sussex Bancorp is a holding company, our cash flows
and consequent ability to service our obligations, including our debt securities, are dependent on distributions and other payments
of earnings and other funds by our subsidiaries to us. The payment of dividends and other distributions by our subsidiaries is
contingent on their earnings and is subject to the requirements of federal banking regulations and other restrictions. In addition,
the debt securities will be structurally subordinated to all indebtedness and other liabilities of Sussex Bancorp’s subsidiaries,
since any right of Sussex Bancorp to receive any assets of its subsidiaries upon their liquidation or reorganization, and the consequent
right of the holders of the debt securities to participate in those assets, will be effectively subordinated to the claims of that
subsidiary’s creditors. Sussex Bancorp itself is recognized as a creditor of that subsidiary, the claims of Sussex Bancorp
would still be subordinate to any security interest in the assets of that subsidiary and any indebtedness of that subsidiary senior
to that held by Sussex Bancorp. Claims from creditors (other than us), on subsidiaries may include long-term and medium-term debt
and substantial obligations related to deposit liabilities, federal funds purchased, securities sold under repurchase agreements
and other short-term borrowings. Any capital loans that we make to Sussex Bank would be subordinate in right of payment to deposits
and to other indebtedness of the bank.
Conversion or Exchange of Debt Securities
The applicable prospectus supplement will set forth the terms,
if any, on which a series of debt securities may be converted into or exchanged for our other securities. These terms will include
whether conversion or exchange is mandatory, or is at our option or at the option of the holder. We will also describe in the applicable
prospectus supplement how we will calculate the number of securities that holders of debt securities would receive if they were
to convert or exchange their debt securities, the conversion price and other terms related to conversion and any anti-dilution
protections.
Redemption of Securities
We may redeem the debt securities at any time, in whole or in
part, at the prescribed redemption price, at the times and on the terms described in the applicable prospectus supplement.
From and after notice has been given as provided in the indentures,
if we have made available funds for the redemption of any debt securities called for redemption on the applicable redemption date,
the debt securities will cease to bear interest on the date fixed for the redemption specified in the notice, and the only right
of the holders of the debt securities will be to receive payment of the redemption price.
Notice of any optional redemption by us of any debt securities
is required to be given to holders at their addresses, as shown in the security register
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The notice of redemption
will be required to specify, among other items, the redemption price and the principal amount of the debt securities held by the
holder to be redeemed.
If we elect to redeem debt securities, we will be required to
notify the trustee of the aggregate principal amount of debt securities to be redeemed and the redemption date. If fewer than all
the debt securities are to be redeemed, the trustee is required to select the debt securities to be redeemed equally, by lot or
in a manner it deems fair and appropriate.
Denomination, Interest, Registration and Transfer
Unless otherwise specified in the applicable prospectus supplement,
we will issue the debt securities (i) in denominations of $1,000 or integral multiples of $1,000 if the debt securities are
in registered form and (ii) in denominations of $5,000 if the debt securities are in bearer form.
Unless otherwise specified in the applicable prospectus supplement,
we will pay the principal of, and applicable premium, if any, and interest on any series of debt securities at the corporate trust
office of the trustee, the address of which will be stated in the applicable prospectus supplement
.
At our option,
we may pay interest by check mailed to the address of the person entitled to the interest payment as it appears in the register
for the applicable debt securities or by wire transfer of funds to that person at an account maintained within the United States.
Any defaulted interest, which means interest not punctually
paid or duly provided for on any interest payment date with respect to a debt security, will immediately cease to be payable to
the registered holder on the applicable regular record date by virtue of his having been the registered holder on such date. We
may pay defaulted interest either to the person in whose name the debt security is registered at the close of business on a special
record date for the payment of the defaulted interest to be fixed by the trustee, notice of which is to be given to the holder
of the debt security not less than ten days before the special record date, or at any time in any other lawful manner, all as more
completely described in the applicable indenture or supplemental indenture.
Subject to limitations imposed upon debt securities issued in
book-entry form, the holder may exchange debt securities of any series for other debt securities of the same series and of a like
aggregate principal amount and tenor of different authorized denominations upon surrender of the debt securities at the corporate
trust office of the applicable trustee. In addition, subject to limitations imposed upon debt securities issued in book-entry form,
the holder may surrender debt securities of any series for registration of transfer or exchange at the corporate trust office of
the applicable trustee. Every debt security surrendered for registration of transfer or exchange must be duly endorsed or accompanied
by a written instrument of transfer. No service charge will be imposed for any registration of transfer or exchange of any debt
securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection
with any registration of transfer or exchange of any debt securities. If the applicable prospectus supplement refers to any transfer
agent, in addition to the applicable trustee, initially designated by us with respect to any series of debt securities, we may
at any time rescind the designation of that transfer agent or approve a change in the location through which any transfer agent
acts, except that we will be required to maintain a transfer agent in each place of payment for that series. We may at any time
designate additional transfer agents with respect to any series of debt securities.
If we redeem the debt securities of any series, neither we nor
any trustee will be required to:
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issue, register the transfer of, or exchange debt securities of any series during a period beginning at the opening of business
15 days before any selection of debt securities of that series to be redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption;
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register the transfer of, or exchange any debt security, or portion of any debt security, called for redemption, except the
unredeemed portion of any debt security being redeemed in part; or
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issue, register the transfer of, or exchange any debt security that has been surrendered for repayment at the option of the
holder, except the portion, if any, of the debt security not to be repaid.
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Global Securities
We may issue the debt securities of a series in whole or in
part in the form of one or more global securities to be deposited with, or on behalf of, a depository or with a nominee for a depository
identified in the applicable prospectus supplement relating to that series. We may issue global securities in either registered
or bearer form and in either temporary or permanent form. The specific terms of the depository arrangement with respect to a series
of debt securities will be described in the prospectus supplement relating to that series.
Our obligations with respect to the debt securities, as well
as the obligations of the applicable trustee, run only to persons who are registered holders of debt securities. For example, once
we make payment to the registered holder, we have no further responsibility for that payment even if the recipient is legally required
to pass the payment along to an individual investor but fails to do so. As an indirect holder, an investor’s rights relating
to a global security will be governed by the account rules of the investor’s financial institution and of the depositary,
as well as general laws relating to transfers of debt securities.
An investor should be aware that when debt securities are issued
in the form of global securities:
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the investor cannot have debt securities registered in his or her own name;
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the investor cannot receive physical certificates for his or her debt securities;
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the investor must look to his or her bank or brokerage firm for payments on the debt securities and protection of his or her
legal rights relating to the debt securities;
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the investor may not be able to sell interests in the debt securities to some insurance or other institutions that are required
by law to hold the physical certificates of debt that they own;
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the depositary’s policies will govern payments, transfers, exchanges and other matters relating to the investor’s
interest in the global security; and
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the depositary will usually require that interests in a global security be purchased or sold within its system using same-day
funds.
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The prospectus supplement for a series of debt securities will
list the special situations, if any, in which a global security will terminate and interests in the global security will be exchanged
for physical certificates representing debt securities. After that exchange, the investor may choose whether to hold debt securities
directly or indirectly through an account at the investor’s bank or brokerage firm. In that event, investors must consult
their banks or brokers to find out how to have their interests in debt securities transferred to their own names so that they may
become direct holders. When a global security terminates, the depositary, and not us or one of the trustees, is responsible for
deciding the names of the institutions that will be the initial direct holders.
Merger, Consolidation or Sale of Assets
We will not be permitted to consolidate with or merge into any
other entity, or sell, lease, transfer or convey all or substantially all of our properties and assets, either in one transaction
or a series of transactions, to any other entity and no other entity will consolidate with or merge into us, or sell, lease, transfer
or convey all or substantially all of its properties and assets to us unless:
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Sussex Bancorp is the continuing entity, or
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the successor entity, if other than Sussex Bancorp, formed by or resulting from any consolidation or merger, or which has received
the transfer of Sussex Bancorp’s assets, expressly assumes payment of the principal of, and premium, if any, and interest
on all of the outstanding debt securities and the due and punctual performance and observance of all of the covenants and conditions
contained in the indentures, and
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(2)
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immediately after giving effect to the transaction and treating any indebtedness that becomes an obligation of Sussex Bancorp
or any subsidiary as a result of that transaction as having been incurred by Sussex Bancorp or a subsidiary at the time of the
transaction, no event of default under the indentures or supplemental indentures, and no event which, after notice or the lapse
of time, or both, would become an event of default, will have occurred and be continuing;
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provided, however, that the conditions described in (1) and
(2) above will not apply to the direct or indirect transfer of the stock, assets or liabilities of any of our subsidiaries
to another of our direct or indirect subsidiaries.
Except as provided in this prospectus or as may otherwise be
provided in the applicable prospectus supplement, the indenture and the terms of the debt securities will not contain any event
risks or similar covenants that are intended to afford protection to holders of any debt securities in the event of a merger, a
highly leveraged transaction or other significant corporate event involving us or our subsidiaries, whether or not resulting in
a change of control, which may adversely affect holders of the debt securities.
Additional Covenants and/or Modifications to the Covenant
Described Above
Any additional covenants of Sussex Bancorp and/or modifications
to the covenant described above with respect to any series of debt securities, including any covenants relating to limitations
on incurrence of indebtedness or other financial covenants, will be set forth in the applicable indenture or supplemental indenture
and described in the prospectus supplement relating to that series of debt securities.
Unless the applicable prospectus supplement indicates otherwise,
the subordinated indenture does not contain the restrictive covenant stated above, nor does it contain any other provision which
restricts us from, among other things:
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incurring or becoming liable on any secured or unsecured senior indebtedness or general obligations; or
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paying dividends or making other distributions on our capital stock; or
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purchasing or redeeming our capital stock; or
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creating any liens on our property for any purpose.
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Events of Default, Waiver and Notice
Events of Default.
The events of default with respect to any series of debt securities
issued under it, subject to any modifications or deletions provided in any supplemental indenture with respect to any specific
series of debt securities, include the following events:
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failure to pay any installment of interest or any additional amounts payable on any debt security of the series for 30 days;
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failure to pay principal of, or premium, if any, on, any debt security of the series when due, whether at maturity, upon redemption,
by declaration or acceleration of maturity or otherwise;
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default in making any sinking fund payment when due, for any debt security of the series;
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default in the performance or breach of any other covenant or warranty of Sussex Bancorp contained in the applicable indenture,
other than a covenant added to the indenture solely for the benefit of any other series of debt securities issued under that indenture,
continued for 90 days after written notice as provided in the applicable indenture;
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specific events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of Sussex
Bancorp or any significant subsidiary or either of their property; and
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any other event of default provided with respect to a particular series of debt securities.
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If an event of default under any indenture with respect to debt
securities of any series at the time outstanding occurs and is continuing, then in every case other than in the case described
in clause (5) above, in which case acceleration will be automatic, the applicable trustee or the holders of not less than
25% of the principal amount of the outstanding debt securities of that series will have the right to declare the principal amount,
or, if the debt securities of that series are original issue discount securities or indexed securities, the portion of the principal
amount as may be specified in the terms of that series, of all the debt securities of that series to be due and payable immediately
by written notice to us, and to the applicable trustee if given by the holders. At any time after a declaration of acceleration
has been made with respect to debt securities of a series, or of all debt securities then outstanding under any indenture, as the
case may be, but before a judgment or decree for payment of the money due has been obtained by the applicable trustee, however,
the holders of not less than a majority in principal amount of the outstanding debt securities of that series, or of all debt securities
then outstanding under the applicable indenture, as the case may be, may annul the declaration of acceleration and waive any default
in respect of those debt securities if:
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we have deposited with the applicable trustee all required payments due otherwise than by acceleration of the principal of,
and premium, if any, and interest on the debt securities of that series, or of all debt securities then outstanding under the applicable
indenture, as the case may be, plus specified fees, expenses, disbursements and advances of the applicable trustee, and
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all events of default, other than the non-payment of all or a specified portion of the accelerated principal, with respect
to debt securities of that series, or of all debt securities then outstanding under the applicable indenture, as the case may be,
have been cured or waived as provided in the applicable indenture.
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Waiver
Each indenture also will provide that the holders of not less
than a majority in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding
under the applicable indenture, as the case may be, may waive any past default with respect to that series and its consequences,
except a default:
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in the payment of the principal of, or premium, if any, or interest on any debt security of that series, or
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in respect of a covenant or provision contained in the applicable indenture that, by the terms of that indenture, cannot be
modified or amended without the consent of each affected holder of an outstanding debt security.
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Notice
Each trustee will be required to give notice to the holders
of the applicable debt securities within 90 days of a default under the applicable indenture unless the default has been cured
or waived; but the trustee may withhold notice of any default, except a default in the payment of the principal of, or premium,
if any, or interest on the debt securities or in the payment of any sinking fund installment in respect of the debt securities,
if specified responsible officers of the trustee consider the withholding to be in the interest of the holders.
The holders of debt securities of any series may not institute
any proceedings, judicial or otherwise, with respect to the indentures or for any remedy under the indentures, except in the case
of failure of the applicable trustee, for 60 days, to act after the trustee has received a written request to institute proceedings
in respect of an event of default from the holders of not less than 25% in principal amount of the outstanding debt securities
of that series, as well as an offer of indemnity reasonably satisfactory to the trustee, and provided that no direction inconsistent
with such written request has been given to the trustee during such 60-day period by the holders of a majority of the outstanding
debt securities of that series. However, any holder of debt securities is not prohibited from instituting suit for the enforcement
of payment of the principal of, and premium, if any, and interest on the debt securities at their respective due dates.
Subject to the trustee’s duties in case of default, no
trustee will be under any obligation to exercise any of its rights or powers under an indenture at the request or direction of
any holders of any series of debt securities then outstanding under that indenture, unless the holders offer to the trustee reasonable
security or indemnity. Subject to such provisions for the indemnification of the trustee, the holders of not less than a majority
in principal amount of the outstanding debt securities of any series, or of all debt securities then outstanding under an indenture,
as the case may be, will have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the applicable trustee, or of exercising any trust or power conferred upon the trustee. A trustee may refuse, however, to follow
any direction that is in conflict with any law or the applicable indenture that may involve the trustee in personal liability or
may be unduly prejudicial to the holders of debt securities of that series not joining in the direction.
Within 180 days after the end of each fiscal year, we will be
required to deliver to each trustee a certificate, signed by one of several specified officers, stating whether or not that officer
has knowledge of any default under the applicable indenture and, if so, specifying each default and the nature and status of the
default.
Modification of the Indentures
Except as otherwise specifically provided in the applicable
indenture, with the consent of the holders of not less than a majority in principal amount of all outstanding debt securities issued
under that indenture that are affected by the modification or amendment, we may enter into supplemental indentures with the trustee
for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of such indenture or
of modifying in any manner the rights of the holders under debt securities issued under such indenture. However, no modification
or amendment may, without the consent of the holder of each debt security affected by the modification or amendment:
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except as described in the prospectus supplement relating to such debt security:
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extend the stated maturity of the principal of, or any installment of interest or any additional amounts, or the premium, if
any, on, any debt security,
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reduce the principal amount of, or the rate or amount of interest on, or change the manner of calculating the rate, or any
premium payable on redemption of, any debt security, or reduce the amount of principal of an original issue discount security that
would be due and payable upon declaration of acceleration of its maturity or would be provable in bankruptcy, or adversely affect
any right of repayment of the holder of any debt security,
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extend the time of payment of interest on any debt security or any additional amounts,
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change any of the conversion, exchange or redemption provisions of any debt security,
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change the place of payment, or the coin or currency for payment, of principal, or premium, if any, including any amount in
respect of original issue discount or interest on any debt security,
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impair the right to institute suit for the enforcement of any payment on or with respect to any debt security or for the conversion
or exchange of any debt security in accordance with its terms,
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release any guarantors from their guarantees of the debt securities, or, except as contemplated in any supplemental indenture,
make any change in a guarantee of a debt security that would adversely affect the interests of the holders of those debt securities,
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in the case of subordinated debt securities, modify the ranking or priority of the securities,
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reduce the percentage of outstanding debt securities of any series necessary to modify or amend the applicable indenture, to
waive compliance with specific provisions of or certain defaults and consequences under the applicable indenture, or to reduce
the quorum or voting requirements set forth in the applicable indenture, or
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modify any of the provisions relating to the waiver of specific past defaults or specific covenants, except to increase the
required percentage to effect that action or to provide that specific other provisions may not be modified or waived without the
consent of the holder of that debt security.
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The holders of not less than a majority in principal amount
of the outstanding debt securities of each series affected by the modification or amendment will have the right to waive compliance
by Sussex Bancorp with specific covenants in the indenture.
Sussex Bancorp and the respective trustee may modify and amend
an indenture without the consent of any holder of debt securities for any of the following purposes:
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to evidence the succession of another person to Sussex Bancorp as obligor under the indenture or to evidence the addition or
release of any guarantor in accordance with the indenture or any supplemental indenture;
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to add to the covenants of Sussex Bancorp for the benefit of the holders of all or any series of debt securities or to surrender
any right or power conferred upon Sussex Bancorp in the indenture;
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to add events of default for the benefit of the holders of all or any series of debt securities;
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to add or change any provisions of the indenture to facilitate the issuance of, or to liberalize specific terms of, debt securities
in bearer form, or to permit or facilitate the issuance of debt securities in uncertificated form, provided that the action will
not adversely affect the interests of the holders of the debt securities of any series in any material respect;
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to change or eliminate any provisions of an indenture, if the change or elimination becomes effective only when there are no
debt securities outstanding of any series created prior to the change or elimination that are entitled to the benefit of the changed
or eliminated provision;
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to secure or provide for the guarantee of the debt securities;
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to establish the form or terms of debt securities of any series and any related coupons;
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to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under an
indenture by more than one trustee;
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to cure any ambiguity or correct any inconsistency in an indenture provided that the cure or correction does not adversely
affect the holders of the debt securities;
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to supplement any of the provisions of an indenture to the extent necessary to permit or facilitate defeasance and discharge
of any series of debt securities, provided that the supplement does not adversely affect the interests of the holders of the debt
securities of any series in any material respect;
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to make provisions with respect to the conversion or exchange terms and conditions applicable to the debt securities of any
series;
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to add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of debt
securities;
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to conform any provision in an indenture to the requirements of the Trust Indenture Act; or
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to make any change that does not adversely affect the legal rights under an indenture of any holder of debt securities of any
series issued under that indenture.
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In determining whether the holders of the requisite principal
amount of outstanding debt securities of a series have given any request, demand, authorization, direction, notice, consent or
waiver under the indenture or whether a quorum is present at a meeting of holders of debt securities:
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the principal amount of an original issue discount security that is deemed to be outstanding will be the amount of the principal
of that original issue discount security that would be due and payable as of the date of the determination upon declaration of
acceleration of the maturity of that original issue discount security;
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the principal amount of any debt security denominated in a foreign currency that is deemed outstanding will be the U.S. dollar
equivalent, determined on the issue date for that debt security, of the principal amount, or, in the case of an original issue
discount security, the U.S. dollar equivalent on the issue date of that debt security of the amount determined as provided in the
immediately preceding bullet point;
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the principal amount of an indexed security that is deemed outstanding will be the principal face amount of the indexed security
at original issuance, unless otherwise provided with respect to the indexed security under the applicable indenture; and
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debt securities owned by Sussex Bancorp or any other obligor upon the debt securities or any affiliate of Sussex Bancorp or
of any other obligor are to be disregarded.
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Discharge, Defeasance and Covenant Defeasance
Discharge
We may be permitted under the applicable indenture to discharge
specific obligations to holders of any series of debt securities (1) that have not already been delivered to the applicable
trustee for cancellation and (2) that either have become due and payable or will, within one year, become due and payable
or scheduled for redemption, by irrevocably depositing with the applicable trustee, in trust, money or funds certified to be sufficient
to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, on and interest on the
debt securities.
Defeasance and Covenant Defeasance
If the provisions in that indenture relating to defeasance and
covenant defeasance are made applicable to the debt securities of or within any series, we may elect either:
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defeasance, which means we elect to defease and be discharged from any and all obligations with respect to the debt securities,
except for the obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed,
lost or stolen debt securities, to maintain an office or agency in respect of the debt securities and to hold moneys for payment
in trust; or
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covenant defeasance, which means we elect to be released from our obligations with respect to the debt securities under specified
sections of the applicable indenture relating to covenants, as described in the applicable prospectus supplement and any omission
to comply with its obligations will not constitute an event of default with respect to the debt securities; in either case upon
the irrevocable deposit by us with the applicable trustee, in trust, of an amount, in currency or currencies or government obligations,
or both, sufficient without reinvestment to make scheduled payments of the principal of, and premium, if any, and interest on the
debt securities, when due, whether at maturity, upon redemption or otherwise, and any mandatory sinking fund or analogous payments.
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A trust will only be permitted to be established if, among other
things:
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we have delivered to the applicable trustee an opinion of counsel, as specified in the applicable indenture, to the effect
that the holders of the debt securities will not recognize income, gain or loss for federal income tax purposes as a result of
the defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if the defeasance or covenant defeasance had not occurred, and the opinion of counsel,
in the case of defeasance, will be required to refer to and be based upon a ruling of the Internal Revenue Service or a change
in applicable U.S. federal income tax law occurring after the date of the indenture;
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no event of default or any event which after notice or lapse of time or both would be an event of default has occurred;
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the defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under, the indenture
or any other material agreement or instrument to which Sussex Bancorp is a party or by which it is bound;
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certain other provisions set forth in the indenture are met;
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we will have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance have been complied with; and
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in the case of the subordinated debt indenture, no event or condition will exist that, pursuant to certain provisions described
under “—Subordination of Subordinated Debt Securities” would prevent Sussex Bancorp from making payments of principal
of and premium, if any, and interest on the subordinated debt securities at the date of the irrevocable deposit referred to above.
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In general, if we elect covenant defeasance with respect to
any debt securities and payments on those debt securities are declared due and payable because of the occurrence of an event of
default, the amount of money and/or government obligations on deposit with the applicable trustee would be sufficient to pay amounts
due on those debt securities at the time of their stated maturity, but may not be sufficient to pay amounts due on those debt securities
at the time of the acceleration resulting from the event of default. In that case, we would remain liable to make payment of the
amounts due on the debt securities at the time of acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting defeasance or covenant defeasance, including any modifications to the provisions described above,
with respect to the debt securities of or within a particular series.
Option to Extend Interest Payment Period
If indicated in the applicable prospectus supplement, we will
have the right, as long as no event of default under the applicable series of debt securities has occurred and is continuing, at
any time and from time to time during the term of the series of debt securities to defer the payment of interest on one or more
series of debt securities for the number of consecutive interest payment periods specified in the applicable prospectus supplement,
subject to the terms, conditions and covenants, if any, specified in the prospectus supplement, provided that no extension period
may extend beyond the stated maturity of the debt securities. Material United States federal income tax consequences and special
considerations applicable to these debt securities will be described in the applicable prospectus supplement. Unless otherwise
indicated in the applicable prospectus supplement, at the end of the extension period, we will pay all interest then accrued and
unpaid together with interest on accrued and unpaid interest compounded semiannually at the rate specified for the debt securities
to the extent permitted by applicable law. However, unless otherwise indicated in the applicable prospectus supplement, during
the extension period neither we nor any of our subsidiaries may:
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declare or pay dividends on, make distributions regarding, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of our capital stock, other than:
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purchases of our capital stock in connection with any employee or agent benefit plans or the satisfaction of our obligations
under any contract or security outstanding on the date of the event requiring us to purchase capital stock,
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in connection with the reclassifications of any class or series of our capital stock, or the exchange or conversion of one
class or series of our capital stock for or into another class or series of our capital stock,
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the purchase of fractional interests in shares of our capital stock in connection with the conversion or exchange provisions
of that capital stock or the security being converted or exchanged,
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dividends or distributions in our capital stock, or rights to acquire capital stock, or repurchases or redemptions of capital
stock solely from the issuance or exchange of capital stock, or
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any non-cash dividends declared in connection with the implementation of a shareholder rights plan by us;
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make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem, any debt securities issued by
us that rank equally with or junior to the debt securities; or
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make any guarantee payments regarding the foregoing.
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Prior to the termination of any extension period, as long as
no event of default under the applicable indenture has occurred and is continuing, we may further defer payments of interest, subject
to the above limitations set forth in this section, by extending the interest payment period; provided, however, that, the extension
period, including all previous and further extensions, may not extend beyond the maturity of the debt securities. Upon the termination
of any extension period and the payment of all amounts then due, we may commence a new extension period, subject to the terms set
forth in this section. No interest during an extension period, except at the end of the extension period, will be due and payable,
but we may prepay at any time all or any portion of the interest accrued during an extension period.
We do not currently intend to exercise our right to defer payments
of interest by extending the interest payment period on the senior debt securities or the subordinated debt securities. We will
give the holders of these debt securities notice of our selection of an extension period at least two business days before the
earlier of (a) the next succeeding interest payment date or (b) the date upon which we are required to give notice to
the NASDAQ, or other applicable self-regulatory organization, or to holders of such debt securities of the record or payment date
of the related interest payment.
Regarding the Trustees
We will designate the trustee under the senior and subordinated
indentures in a prospectus supplement. From time to time, we may enter into banking or other relationships with any of such trustees
or their affiliates.
There may be more than one trustee under each indenture, each
with respect to one or more series of debt securities. Any trustee may resign or be removed with respect to one or more series
of debt securities, and a successor trustee may be appointed to act with respect to such series.
If two or more persons are acting as trustee with respect to
different series of debt securities, each trustee will be a trustee of a trust under the indenture separate from the trust administered
by any other such trustee. Except as otherwise indicated in this prospectus, any action to be taken by the trustee may be taken
by each such trustee with respect to, and only with respect to, the one or more series of debt securities for which it is trustee
under the indenture.
Governing Law
The senior debt securities, the subordinated debt securities
and the related indentures will be governed by, and construed in accordance with, the internal laws of the State of New York.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase our debt securities, common
stock or preferred stock or units of two or more of these types of securities, which are collectively referred to in this prospectus
as “underlying warrant securities.” We may issue warrants independently or together with any underlying warrant securities
and such warrants may be attached to or separate from those underlying warrant securities. We will issue the warrants under warrant
agreements to be entered into between us and a bank or trust company, as warrant agent, as more fully described in the applicable
prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants of the series being offered
and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
As of May 26, 2017, there were no warrants to purchase any of our securities issued and outstanding.
The applicable prospectus supplement will contain a description
of the following terms:
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the title of the warrants;
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the designation, amount and terms of the underlying warrant securities for which the warrants are exercisable;
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the designation and terms of the underlying warrant securities, if any, with which the warrants are to be issued and the number
of warrants issued with each underlying warrant security;
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the price or prices at which the warrants will be issued;
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the aggregate number of warrants;
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise
price of the warrants;
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the price or prices at which the underlying warrant securities purchasable upon exercise of the warrants may be purchased;
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if applicable, the date on and after which the warrants and the underlying warrant securities purchasable upon exercise of
the warrants will be separately transferable;
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if applicable, a discussion of the material United States federal income tax considerations applicable to the exercise of the
warrants;
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the date on which the right to exercise the warrants will commence, and the date on which the right will expire;
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the currency or currencies (including composite currencies), and/or the securities (if any), in which the exercise price of
the warrants may be payable; and, if the exercise price is payable in whole or in part with securities, the basis for determining
the amount or number of such securities to be provided as such payment;
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the maximum or minimum number of warrants which may be exercised at any time;
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information with respect to book-entry procedures, if any; and
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any other terms, including terms, procedures and limitations relating to the exercise and exchange of the warrants.
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Exercise of Warrants
Each warrant will entitle its holder to purchase, for cash and/or
securities (as will be specified in the applicable prospectus supplement), the amount or number of debt securities, shares of preferred
stock, or shares of common stock, at the exercise price, as will in each case be set forth in, or be determinable as set forth
in, the applicable prospectus supplement. Holders may exercise warrants at any time up to the close of business on the expiration
date set forth in the prospectus supplement relating to the warrants offered thereby. After the close of business on the expiration
date, unexercised warrants will become void.
Holders of warrants may exercise their respective warrants as
set forth in the prospectus supplement relating to such warrants. Upon receipt of payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the underlying warrant securities purchasable upon exercise of the warrants.
If a holder exercises less than all of the warrants represented by the warrant certificate, the warrant agent will issue a new
warrant certificate for the remaining warrants.
Prior to the exercise of any warrants to purchase debt securities
or other securities, including shares of preferred stock or common stock, holders of the warrants will not have any of the rights
of holders of the debt securities or other securities, including shares of preferred stock or common stock purchasable upon exercise,
including:
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in the case of warrants for the purchase of debt securities, the right to receive payments of principal of, or any premium
or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants for the purchase of shares of preferred stock or shares of common stock, the right to vote or to receive
any payments of dividends on the shares of preferred stock or common stock purchasable upon exercise.
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The descriptions of the warrant agreements in this prospectus
and in any prospectus supplement are summaries of certain material provisions of the applicable warrant agreements. These descriptions
do not restate those agreements in their entirety and do not contain all of the information that you may find useful or that may
be important to you. You should refer to the provisions of the applicable warrant agreement and warrant certificate relating to
the warrants because they, and not the summaries, define your rights as holders of the warrants or any warrant units. For more
information, please review the forms of these documents, which will be filed with the SEC promptly after the offering of warrants
or warrant units and will be available as described under the heading “Where You Can Find More Information” above.
DESCRIPTION OF PURCHASE CONTRACTS
As may be specified in a prospectus supplement, we may issue
purchase contracts obligating holders to purchase from Sussex Bancorp, and obligating Sussex Bancorp to sell to the holders, a
number of debt securities, shares of our common stock, or preferred stock or depositary shares or warrants, at a future date or
dates. The price per purchase contract security may be fixed at the time the purchase contracts are issued or may be determined
by reference to a specific formula set forth in the purchase contracts. Under the purchase contracts, we may be required to make
periodic payments to the holders of the units or vice versa. These payments may be unsecured or prefunded on some basis to be specified
in the applicable prospectus supplement.
The purchase contracts may require holders to secure their obligations
under the contracts in a specified manner and, in specified circumstances, we may deliver newly issued prepaid purchase contracts,
or prepaid securities, when we transfer to a holder any collateral securing the holder’s obligations under the original purchase
contract.
The purchase contracts may be issued separately or as part of
units consisting of a purchase contract and one or more other securities, which may include debt securities, depositary shares,
preferred securities, common stock, warrants or debt obligations of Sussex Bancorp, or government securities, and which may secure
the holder’s obligations to purchase the purchase contract security under the purchase contract.
The prospectus supplement relating to any purchase contracts
we are offering will specify the material terms of the purchase contracts, whether they will be issued separately or as part of
units, and any applicable pledge or depository arrangements.
The descriptions of the purchase contracts and any applicable
underlying security or pledge or depository arrangements in this prospectus and in any prospectus supplement are summaries of certain
material provisions of the applicable agreements. These descriptions do not restate those agreements in their entirety and do not
contain all of the information that you may find useful or that may be important to you. You should refer to the provisions of
the applicable agreements because they, and not the summaries, define your rights as holders of the purchase contracts. We will
make copies of the relevant agreements available as described under the heading “Where You Can Find More Information”
above.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may
issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit may also
include debt obligations of third parties, such as U.S. Treasury securities. Each unit will be issued so that the holder of the
unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations
of a holder of each included security. The prospectus supplement will describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
the securities comprising the units may be held or transferred separately;
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a description of the terms of any unit agreement governing the units;
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a description of the provisions for the payment, settlement, transfer or exchange of the units; and
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whether the units will be issued in fully registered or global form.
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The descriptions of the units and any applicable underlying
security or pledge or depository arrangements in this prospectus and in any prospectus supplement are summaries of the material
provisions of the applicable agreements. These descriptions do not restate those agreements in their entirety and do not contain
all of the information that you may find useful or that may be important to you. You should refer to the provisions of the applicable
agreements because they, and not the summaries, define your rights as holders of the units. We will make copies of the relevant
agreements available as described under the heading “Where You Can Find More Information” above.
PLAN OF DISTRIBUTION
Sussex Bancorp may sell the offered securities:
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directly to purchasers;
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directly to its shareholders; or
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through a combination of any of these methods of sale.
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The prospectus supplement relating to a series of the offered
securities will set forth its offering terms, including the name or names of any underwriters, dealers or agents, the purchase
price of the offered securities and the proceeds to Sussex Bancorp from the sale, any underwriting discounts, commissions and other
items constituting underwriters’ compensation, any initial public offering price and any underwriting discounts, commissions
and other items allowed or reallowed or paid to dealers or agents and any securities exchanges on which the offered securities
may be listed.
Sussex Bancorp may use one or more underwriters in the sale
of the offered securities, in which case the offered securities will be acquired by the underwriter or underwriters for their own
account and may be resold from time to time in one or more transactions either:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to the prevailing market prices; or
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Sussex Bancorp may directly solicit offers to purchase offered
securities. Agents designated by Sussex Bancorp from time to time may also solicit offers to purchase offered securities. Any agent
designated by Sussex Bancorp, who may be deemed to be an “underwriter” as that term is defined in the Securities Act,
involved in the offer or sale of the offered securities in respect of which this prospectus is delivered will be named, and any
commissions payable by Sussex Bancorp to such agent will be set forth in the prospectus supplement.
If a dealer is utilized in the sale of the offered securities
in respect of which this prospectus is delivered, Sussex Bancorp will sell the offered securities to the dealer, as principal.
The dealer, who may be deemed to be an “underwriter” as that term is defined in the Securities Act, may then resell
the offered securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is, or underwriters are, used in the sale,
Sussex Bancorp will execute an underwriting agreement with the underwriters at the time of sale to the underwriters. The names
of the underwriters will be set forth in the prospectus supplement, which will be used by the underwriter to make resales of the
offered securities in respect of which this prospectus is delivered to the public. In connection with the sale of offered securities,
the underwriter may be deemed to have received compensation from Sussex Bancorp in the form of underwriting discounts or commissions
and may also receive commissions from purchasers of offered securities for whom they may act as agents. Underwriters may also sell
offered securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may act as agents.
If so indicated in the applicable prospectus supplement, Sussex
Bancorp will authorize underwriters, dealers or other persons to solicit offers by certain institutions to purchase offered securities
from Sussex Bancorp at the public offering price set forth in the applicable prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a future date or dates. Institutions with which these contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions
and others. The obligations of any purchasers under any delayed delivery contract will not be subject to any conditions except
that:
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the purchase of the offered securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to
which the purchaser is subject, and
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if the offered securities are also being sold to underwriters, Sussex Bancorp will have sold to the underwriters the offered
securities not sold for delayed delivery.
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The underwriters, dealers and other persons will not have any
responsibility in respect of the validity or performance of such contracts. The prospectus supplement relating to the contracts
will set forth the price to be paid for offered securities pursuant to the contracts, the commission payable for solicitation of
the contracts and the date or dates in the future for delivery of offered securities pursuant to the contracts.
Offered securities may also be offered and sold, if so indicated
in the prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment
pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents
for Sussex Bancorp. Any remarketing firm will be identified and the terms of its agreement, if any, with Sussex Bancorp and its
compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters in connection
with their remarketing of offered securities.
Unless otherwise set forth in the applicable prospectus supplement,
the obligations of underwriters to purchase the offered securities will be subject to certain conditions precedent and such underwriters
will be obligated to purchase all such securities, if any are purchased. In connection with the offering of securities, we may
grant to the underwriters an option to purchase additional securities to cover over-allotments at the initial public offering price,
with an additional underwriting commission, as may be set forth in the accompanying prospectus supplement. If we grant any over-allotment
option, the terms of such over-allotment option will be set forth in the prospectus supplement for such securities.
Underwriters, dealers, remarketing firms and agents may be entitled,
under agreements that may be entered into with Sussex Bancorp, to indemnification by Sussex Bancorp against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect to payments which they may be required to make
in respect thereof and may engage in transactions with, or perform services for, Sussex Bancorp in the ordinary course of business.
Any underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with Regulation M under the Securities 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. Short-covering transactions involve
purchases of the securities 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 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.
The anticipated date of delivery of offered securities will
be set forth in the applicable prospectus supplement relating to each offer.
LEGAL MATTERS
In connection with particular offerings of the securities in
the future, and if stated in the applicable prospectus supplement, the validity of those securities and certain U.S. federal income
tax matters may be passed upon for us by Hogan Lovells US LLP, and for the underwriters or agents by counsel named in the applicable
prospectus supplement.
EXPERTS
The consolidated financial statements of Sussex Bancorp at December
31, 2016 and 2015, and for each of the years then ended, have been incorporated by reference into this document and in the registration
statement in reliance on the report of BDO USA, LLP, independent registered public accounting firm, which is incorporated by reference
into this document and into the registration statement by reference to Sussex Bancorp’s Annual Report on Form 10-K for the
year ended December 31, 2016, and upon the authority of said firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth an estimate (except in the case
of the registration fee) of the costs and expenses, other than the underwriting discounts and commissions, to be incurred in connection
with the issuance and distribution of the securities being registered. All costs and expenses set forth below shall be borne by
us.
Item
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Amount
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SEC registration fee
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$
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8,692.50
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(1)
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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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Printing fees
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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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(1)
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Under rules 456(b) and 457(r) under the Securities Act, the registration fee will be paid at the time of any particular offering of securities under this registration statement.
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*
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These fees depend on the securities offered and the number of issuances and cannot be estimated at this time.
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Item 15.
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Indemnification of Officers and Directors.
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Subsection (2) of Section 3-5, Title 14A
of the New Jersey Business Corporation Act empowers a corporation to indemnify a corporate agent who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (other than an action by or in the right of the corporation) against reasonable costs (including attorneys’
fees), judgments, fines, penalties and amounts paid in settlement incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. For purposes of the
Act, a “corporate agent” means any person who is or was a director, officer, employee or agent of the corporation or
a person serving at the request of the corporation as a director, officer, trustee, employee or agent of another corporation or
enterprise.
Subsection (3) of Section 3-5 empowers
a corporation to indemnify a corporate agent against reasonable costs (including attorneys’ fees) incurred by him in connection
with any proceeding by or in the right of the corporation to procure a judgment in its favor which involves such corporate agent
by reason of the fact that he is or was a corporate agent if he acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the
Superior Court of New Jersey or the court in which such action or suit was brought shall determine that despite the adjudication
of liability, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Subsection (4) of Section 3-5 provides
that to the extent that a corporate agent has been successful in the defense of any action, suit or proceeding referred to in subsections
(2) and (3) or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’
fees) incurred by him in connection therewith.
Subsection (5) of Section 3-5 provides
that a corporation may indemnify a corporate agent in a specific case if it is determined that indemnification is proper because
the corporate agent met the applicable standard of conduct, and such determination is made by any of the following: (a) the board
of directors or a committee thereof, acting by a majority vote of a quorum consisting of disinterested directors; (b) independent
legal counsel, if there is no quorum of disinterested directors or if the disinterested directors empower counsel to make the determination;
or (c) the shareholders.
Subsection (8) of Section 3-5 provides
that the indemnification provisions in the law shall not exclude any other rights to indemnification that a director or officer
may be entitled to under a provision of the certificate of incorporation, a by-law, an agreement, a vote of shareholders, or otherwise.
That subsection explicitly permits indemnification for liabilities and expenses incurred in proceedings brought by or in the right
of the corporation (derivative proceedings). The only limit on indemnification of directors and officers imposed by that subsection
is that a corporation may not indemnify a director or officer if a judgment has established that the director’s or officer’s
acts or omissions were a breach of his or her duty of loyalty, not in good faith, involved a knowing violation of the law, or resulted
in receipt by the corporate agent of an improper personal benefit.
Subsection (9) of Section 3-5 provides
that a corporation is empowered to purchase and maintain insurance on behalf of a director or officer against any expenses or liabilities
incurred in any proceeding by reason of that person being or having been a director or officer, whether or not the corporation
would have the power to indemnify that person against expenses and liabilities under other provisions of the law.
The Registrant’s Restated Certificate
of Incorporation, as amended, contains the following provision:
“Subject to the following,
a director or officer of the Corporation shall not be personally liable to the Corporation or its shareholders for damages for
breach of any duty owed to the Corporation or its shareholders. The preceding sentence shall not relieve a director or officer
from liability for any breach of duty based upon an act or omission (i) in breach of such person’s duty of loyalty to the
Corporation or its shareholders, (ii) not in good faith or involving a knowing violation of law, or (iii) resulting in receipt
by such person of an improper personal benefit. If the New Jersey Business Corporation Act is amended to authorize corporate action
further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer or
both of the Corporation shall be eliminated or limited to the fullest extent permitted by the New Jersey Business Corporation Act
as so amended. Any amendment to this Certificate of Incorporation, or change in law which authorizes this paragraph, shall not
adversely affect any then existing right or protection of a director or officer of the Corporation.”
The Registrant currently maintains directors’ and officers’
liability coverage which will insure the Registrant’s directors and officers and the directors and officers of its subsidiaries
in certain circumstances.
Any underwriting agreement that we might enter into will provide
for indemnification by any underwriters of us, our directors, our officers who sign the registration statement and our controlling
persons for some liabilities, including liabilities arising under the Securities Act.
The Exhibit Index included herewith is incorporated herein
by reference.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration statement or any material change to such information in
the registration statement;
provided, however,
that paragraphs (i), (ii) and
(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 Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part
of and included in the registration statement; and
(ii) 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 of 1933
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 the 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.
(5) That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf
of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial
bona fide
offering thereof.
(7) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 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 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 of 1933 and will be governed by
the final adjudication of such issue.
(8) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under
the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective.
(9) That for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.
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 Rockaway, State of New Jersey, on May 31, 2017.
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SUSSEX BANCORP
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By:
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/s/ Anthony Labozzetta
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Anthony Labozzetta
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the individuals whose signatures
appear below constitute and appoint Anthony Labozzetta and Steven M. Fusco, and each and any of them, his or her true and lawful
attorney-in-fact and agents with full and several power of substitution, for him or her and his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and
to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents or any of them, or their substitutes,
may lawfully do or cause to be done.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the capacities indicated on May 31, 2017:
Signatures
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Title
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Date
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/s/ Anthony Labozzetta
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President, Chief Executive Officer and Director
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May 31, 2017
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Anthony Labozzetta
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(Principal Executive Officer)
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/s/ Steven M. Fusco
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Senior Executive Vice President and Chief Financial
Officer
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May 31, 2017
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Steven M. Fusco
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(Principal Financial and Accounting Officer)
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/s/ Edward J. Leppert
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Chairman of the Board
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May 31, 2017
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Edward J. Leppert
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/s/ Mark J. Hontz
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Director
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May 31, 2017
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Mark J. Hontz
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/s/ Patrick E. Brady
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Director
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May 31, 2017
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Patrick E. Brady
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/s/ Richard Branca
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Director
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May 31, 2017
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Richard Branca
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/s/ Katherine H. Caristia
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Director
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May 31, 2017
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Katherine H. Caristia
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/s/ Timothy Marvil
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Director
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May 31, 2017
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Timothy Marvil
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/s/ Michael X. McBride
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Director
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May 31, 2017
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Michael X. McBride
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/s/ Robert McNerney
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Director
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May 31, 2017
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Robert McNerney
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INDEX TO EXHIBITS
*1.1
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Form of Underwriting
Agreement.
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2.1
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Agreement and Plan of Merger by and
between, Sussex Bancorp, Sussex Bank and Community Bank of Bergen County, NJ, dated April 10, 2017 (
incorporated
by reference to Exhibit 2.1 to the Current Report on Form 8-K filed with the SEC on April 11, 2017
).
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3.1
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Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q filed with the SEC on August 15, 2011).
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3.2
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Amended
and Restated By-laws (incorporated by reference to Exhibit 3.II to the Current Report on Form 8-K filed with the SEC on June
3, 2014).
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*4.1
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Form of Certificate
of Designations.
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4.2
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Form of Senior Debt
Indenture.
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4.3
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Form of Subordinated
Debt Indenture.
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*4.4
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Form of Deposit
Agreement for Depositary Shares.
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*4.5
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Form of Warrant
Agreement.
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*4.6
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Form of Purchase
Contract Agreement (including form of related security certificate).
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*4.7
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Form of Unit Agreement.
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4.8
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Specimen common
stock certificate (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to the Registration Statement on Form S-1 filed
with the SEC on June 3, 2013).
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*4.9
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Form of Preferred
Stock Certificate.
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*4.10
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Form of Senior Debt
Security.
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*4.11
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Form of Subordinated
Debt Security.
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*4.12
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Form of Depositary
Receipt.
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*4.13
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Form of Warrant
Certificate.
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*4.14
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Form of Unit Certificate.
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5.1
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Opinion of Hogan
Lovells US LLP regarding the legality of the securities being registered.
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12.1
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Computation of Ratio
of Earnings to Fixed Charges.
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23.1
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Consent of Hogan Lovells US LLP (included as part of Exhibit 5.1).
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23.2
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Consent of BDO USA, LLP, independent registered public accounting firm.
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24.1
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Power of Attorney (included on signature page).
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**25.1
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Form T-1 of Trustee for the form of Senior Debt Indenture.
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**25.2
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Form T-1 of Trustee for the form of the Subordinated Debt Indenture.
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*
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To be filed, if necessary, by amendment or incorporated by reference pursuant to a Current Report on Form 8-K in connection with the offering of securities registered hereunder.
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**
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To be filed, if necessary, pursuant to Section 305(b)(2) of the Trust Indenture Act.
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