<PAGE>
As filed with the Securities and Exchange Commission on July 23, 1999
Registration No. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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U.S. Bancorp Delaware 41-0255900
USB Capital III Delaware 41-1899114
USB Capital IV Delaware 41-1899116
USB Capital V Delaware 41-1899117
(State or other jurisdiction (I.R.S. Employer
(Exact name of or incorporation or organization) Identification No.)
registrant
as specified in its
charter)
Lee R. Mitau, Esq.
601 Second Avenue South 601 Second Avenue South
Minneapolis, Minnesota 55402-4302 Minneapolis, Minnesota 55402-4302
(612) 973-1111 (612) 973-1111
(Name, address and telephone number,
(Address, including zip code, and including
telephone number, including area code, of agent for service)
area code, of registrant's principal
executive offices)
Copy to:
Charles F. Saywer, Esq.
Dorsey & Whitney LLP Jeffrey D. Berman, Esq.
Pillsbury Center South Davis Polk & Wardwell
220 South Sixth Street 450 Lexington Avenue
Minneapolis, Minnesota 55402-4302 New York, New York 10017
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 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title in Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Unit(1) Offering Price(1)(2) Fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Senior Notes,
Subordinated Notes and
Junior Subordinated
Debt Securities
(collectively, "Debt
Securities") of U.S.
Bancorp(3)(4),
Preferred Stock(5),
Depositary Shares, Debt
Warrants(4)(6), Capital
Securities of USB
Capital III, IV and V
(severally "Capital
Securities") and
Guarantees of Capital
Securities of USB
Capital III, IV and V
by U.S. Bancorp (the
"Guarantees" together
with the Debt
Securities, Preferred
Stock, Depositary
Shares, Debt Warrants
and Capital Securities
(the "Securities")(7).. $2,300,000,000 100% $2,300,000,000(3) $639,400
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
</TABLE>
(footnotes continued on next page)
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
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<PAGE>
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. Securities registered hereby may be
offered for U.S. dollars or the equivalent thereof in foreign currencies,
currency units or composite currencies. Securities registered hereby may
be sold separately or together with other securities registered hereby.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(o).
(3) In the case of Debt Securities issued at an original issue discount, such
greater principal amount as shall result in an aggregate offering price of
the amount set forth above or, in the case of Debt Securities denominated
in a currency other than U.S. dollars or in a composite currency, such
U.S. dollar amount as shall result from converting the aggregate public
offering price of such Debt Securities in U.S. dollars at the spot
exchange rate in effect on the date such Debt Securities are initially
offered to the public.
(4) The Debt Securities to be offered hereunder or Debt Securities purchasable
upon exercise of Warrants to purchase Debt Securities offered hereunder
will consist of one or more series of Senior Notes or Subordinated Notes,
or both, as more fully described herein.
(5) Such indeterminate number of shares of Preferred Stock, as may be issued
from time to time at indeterminate prices.
(6) Debt Warrants will represent rights to purchase Debt Securities registered
hereby. Because the Debt Warrants will provide a right only to purchase
the Debt Securities offered hereunder, no additional registration fee is
required.
(7) In addition to the Capital Securities Guarantees and the Junior
Subordinated Debt Securities, U.S. Bancorp is also registering under this
registration statement certain other back-up obligations. Such back-up
obligations include its obligations under the Indenture related to the
Capital Securities and under the Amended and Restated Trust Agreement of
each of the trusts, namely USB Capital III, IV and V, pursuant to which
U.S. Bancorp will agree, among other things, to pay all debts and
obligations (other than with respect to the Trust Securities) of the
relevant Trust, and all costs or expenses of the relevant Trust, including
all fees, expenses and taxes of such Trust. No separate consideration will
be received by U.S. Bancorp for the Capital Securities Guarantees or such
other back-up obligations. See "Relationship Among the Capital Securities,
the Corresponding Junior Subordinated Debt Securities and the Guarantees"
in the form of Prospectus relating to the Capital Securities included
herein.
<PAGE>
EXPLANATORY NOTE
This registration statement contains two forms of prospectuses that we
intend to use to offer the following securities:
. our debt securities (both senior and subordinated), debt warrants,
preferred stock and depository shares; and
. capital securities of USB Capital III, IV and V, severally, our
junior subordinated debt securities and guarantees of the capital
securities issued severally by USB Capital III, IV and V.
Each time we offer securities, one of these prospectuses will provide you
with a general description of the offering. Each time we sell securities, we
will also provide you with a prospectus supplement that will contain specific
information about the terms of that offering and securities.
The complete prospectus for the offering of our debt securities (both senior
and subordinated), debt warrants, preferred stock and depositary shares follows
immediately after this explanatory note, which is then immediately followed by
the complete prospectus for the offering of the capital securities of USB
Capital III, IV and V, severally, our junior subordinated debt securities and
guarantees of the capital securities issued severally by USB Capital III, IV
and V.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 we are not soliciting offers to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to completion, dated July 23, 1999
PROSPECTUS
[LOGO]
U.S. Bancorp
601 Second Avenue South
Minneapolis, Minnesota 55402
(612) 973-1111
$2,300,000,000
U.S. Bancorp
Debt Securities, Preferred Stock,
Depositary Shares and
Debt Warrants
We will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the applicable prospectus
supplement carefully before you invest.
------------
The securities will be our equity securities or our unsecured obligations and
will not be savings accounts, deposits or other obligations of any bank or non-
bank subsidiary of ours and are not insured by the Federal Deposit Insurance
Corporation, the Bank Insurance Fund or any other government agency.
------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus may not be used to sell securities unless accompanied by the
applicable prospectus supplement.
The date of this Prospectus is , 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we, along with the
trusts, USB Capital III, USB Capital IV and USB Capital V, filed with the SEC
using a shelf registration process. Under this shelf process, we may sell:
.debt securities;
.preferred stock;
.depositary shares; and
.debt warrants
and the trusts may sell:
. capital securities (representing undivided beneficial interests in the
trusts) to the public; and
. common securities to us in one or more offerings.
The trusts will use the proceeds from the sales of the securities to buy a
series of our junior subordinated debt securities with terms that correspond to
the capital securities.
We:
. will pay principal and interest on our junior subordinated debt
securities, subject to the payment of our more senior debt;
. may choose to distribute our junior subordinated debt securities pro-rata
to the holders of the related capital securities and common securities if
we terminate a trust; and
. will fully and unconditionally guarantee the capital securities based on:
--our obligations to make payments on our junior subordinated debt
securities;
--our obligations under our guarantee (our payment obligations are
subject to payment on all of our general liabilities); and
--our obligations under the trust agreements.
This prospectus provides you with a general description of the debt
securities, preferred stock, depositary shares and debt warrants. The
description of the capital securities, the junior subordinated debt securities
and the guarantee will be included in a separate prospectus in this
registration statement. Each time we sell debt securities, preferred stock,
depositary shares and debt warrants, we will provide an applicable prospectus
supplement that will contain specific information about the terms of that
offering. The applicable prospectus supplement may also add, update or change
information in this prospectus. You should read this prospectus and the
applicable prospectus supplement together with the additional information
described under the heading "Where You Can Find More Information."
The registration statement that contains this prospectus (including the
exhibits to the registration statement) has additional information about us and
the securities offered under this prospectus. That registration statement can
be read at the SEC web site or at the SEC offices mentioned under the heading
"Where You Can Find More Information."
The words "USB," "Company," "we," "our," "ours," and "us" refer to U.S.
Bancorp and its subsidiaries, unless otherwise stated. We have also defined
terms in the glossary section, at the back of this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document that we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public from the SEC's web site at http://www.sec.gov. Our SEC filings
are also available at the offices of the New York Stock Exchange. For further
information on obtaining copies of our public filings at the New York Stock
Exchange, you should call (212) 656-5060.
The SEC allows us to incorporate by reference the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update
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<PAGE>
and supersede this information. We incorporate by reference the following
documents listed below and any future filings made with the SEC under Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act, until we or any underwriters
sell all of the securities:
. Annual Report on Form 10-K for the year ended December 31, 1998;
. Quarterly Report on Form 10-Q for the quarter ended March 31, 1999; and
. Current Report on Form 8-K filed on January 20, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
U.S. Bancorp
601 Second Avenue South
Minneapolis, Minnesota 55402
Attn: Investor Relations Department
(612) 973-2263
You should rely only on the information incorporated by reference or
provided in this prospectus or any applicable prospectus supplement. We have
not authorized anyone else to provide you with different information. We are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
applicable prospectus supplement is accurate as of any date other than the date
on the front of those documents.
Unless otherwise indicated, currency amounts in this prospectus and in any
applicable prospectus supplement are stated in U.S. dollars.
Notice to North Carolina purchasers: the Commissioner of Insurance of the
State of North Carolina has not approved or disapproved this offering nor has
the Commissioner determined if this prospectus is truthful or complete.
ABOUT U.S. BANCORP
We are a regional, multi-state bank holding company headquartered in
Minneapolis, Minnesota. We are registered under the Bank Holding Company Act,
and are subject to the supervision of, and regulation by, the Board of
Governors of the Federal Reserve System. We were formerly known as First Bank
System, Inc., and we are the organization created by the acquisition by First
Bank System, Inc. of U.S. Bancorp of Portland, Oregon. We are the 13th largest
U.S. bank holding company. We operate 4 banks and 11 trust companies having
approximately 1,000 banking offices in 17 Midwestern and Western states. We
offer full-service brokerage services at approximately 100 offices through our
wholly owned subsidiary. We also have various nonbank subsidiaries engaged in
financial services. At March 31, 1999, we had consolidated assets of $76
billion, consolidated deposits of $49 billion, and shareholders' equity of $6
billion.
Our banking subsidiaries are engaged in the general commercial banking
business, principally in domestic markets. They range in size from less than $1
million to $48 billion in deposits and provide a wide variety of services to
individuals, businesses, industry, institutional organizations, governmental
entities and other financial institutions. Depository services include checking
accounts, savings accounts and time certificates of deposit. Ancillary services
such as treasury management and receivable lockbox collection are provided for
corporate customers. Our banking and trust company subsidiaries provide a full
range of fiduciary activities for individuals, estates, foundations, business
corporations and charitable organizations.
We provide banking services through our subsidiary banks to both domestic
and foreign customers and correspondent banks. These services include consumer
banking, commercial lending, financing of import/export trade, foreign
exchange, and investment services. We provide, through our subsidiaries,
services in trust, commercial and agricultural finance, data processing,
leasing, and brokerage services.
On May 1, 1998, we completed our acquisition of Piper Jaffray Companies
Inc., a full-service investment banking and securities brokerage firm, in a
cash transaction. The acquisition was accounted for as a purchase. On July 15,
1999, we completed our acquisition of San Diego-based Bank of Commerce, one of
the largest U.S. Small Business Administration lenders. On May 19, 1999, we
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announced an agreement to acquire Newport Beach California-based Western
Bancorp. With $2.5 billion in assets at March 31, 1999, Western Bancorp has 31
branches in southern California in Los Angeles, Orange and San Diego counties.
The acquisition is pending regulatory and Western Bancorp shareholder
approvals, and is expected to close in the fourth quarter of 1999.
We were incorporated under Delaware law in 1929 and have functioned as a
multi-bank holding company since that time. Our principal executive offices are
located at 601 Second Avenue South, Minneapolis, Minnesota 55402-4302, and our
telephone number is (612) 973-1111.
If you would like to know more about us, see our documents incorporated by
reference in this prospectus as described under the section "Where You Can Find
More Information."
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, we anticipate
that the net proceeds from the sale of the offered securities will be used for
general corporate purposes, including:
.repayment of debt;
.financing acquisitions; and
.investments in and loans to our subsidiaries.
When we offer a particular series of securities, the applicable prospectus
supplement may not state how the proceeds will be allocated, even though we
would have determined that funds are needed in anticipation of our future
funding. The time that we will take to allocate these proceeds will depend on
the amount of proceeds we need, on whether other funds are available and on how
much those funds cost. If we do not use the net proceeds immediately, we will
temporarily invest them to reduce our short-term indebtedness.
RATIOS OF EARNINGS TO FIXED CHARGES AND TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The ratios of earnings to fixed charges and to combined fixed charges and
preferred stock dividends of USB for each of the periods indicated are as
follows:
<TABLE>
<CAPTION>
Three Months
Ended Year Ended December 31,
-------------- ------------------------
March 31, 1999 1998 1997 1996 1995 1994
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits:..... 3.13 3.09 2.64 3.60 2.95 2.64
Including interest on deposits:..... 1.99 1.87 1.61 1.89 1.66 1.53
Ratios of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends:
Excludes interest on deposits:...... 3.13 3.09 2.58 3.46 2.83 2.47
Includes interest on deposits:...... 1.99 1.87 1.60 1.86 1.64 1.50
</TABLE>
The ratio of earnings to fixed charges is computed by dividing income from
continuing operations before income taxes and fixed charges (excluding
capitalized interest), as adjusted for some equity method investments, by fixed
charges. Fixed charges consist of interest on debt (including capitalized
interest), amortization of debt discount, and expense and a portion of rentals
determined to be representative of interest. To compute the ratio of earnings
to combined fixed charges and preferred stock dividends, fixed charges is then
combined with preferred stock dividend requirements, adjusted to a pretax basis
on the outstanding preferred stock of USB.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt
securities (other than the junior subordinated debt securities) that are
offered by this prospectus. The applicable prospectus supplement will describe
the specific terms of the series of debt securities offered under that
applicable prospectus supplement and any general terms outlined in this section
that will not apply to those debt securities.
The senior debt securities will be issued under an indenture dated October
1, 1991 between us and Citibank, N.A., as trustee. The subordinated debt
securities will be issued under an indenture dated October 1, 1991, as amended
by a first supplemental indenture dated April 1, 1993 between us and Citibank,
N.A., as trustee. The indentures will be qualified under the Trust Indenture
Act. The forms of the indentures have been filed as exhibits to the
registration statement.
This section summarizes the material terms and provisions of the indentures
and the debt securities. Because this is only a summary, it does not contain
all the details found in the full text of the indentures and the debt
securities. If you would like additional information, you should read the forms
of indentures and the forms of debt securities.
General
We can issue the debt securities from time to time in one or more series.
Our board of directors will determine by a resolution, the terms of each series
of debt securities as provided in an officers' certificate or a supplemental
indenture. The applicable prospectus supplement will describe the specific
terms of the debt securities offered.
Because we are a holding company, our rights and the rights of our
creditors, including the holders of the debt securities offered in this
prospectus, to participate in the assets of any subsidiary during its
liquidation or reorganization, will be subject to the prior claims of the
subsidiary's creditors, unless we are ourselves a creditor with recognized
claims against the subsidiary. Any capital loans that we make to any of our
banking subsidiaries would be subordinate in right of payment to deposits and
to other indebtedness of these banking subsidiaries. Claims from creditors
(other than us), on the 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.
The indentures do not limit the aggregate principal amount of debt
securities that we may issue under them, nor the amount of other debt that we
may issue.
The debt securities will be unsecured and those issued under the senior
indenture will rank equally with all of our other unsecured and unsubordinated
indebtedness. The subordinated notes will be subordinated as described under
the section "Subordination of Subordinated Notes."
Unless the applicable prospectus supplement indicates otherwise, we will
issue the debt securities of any series only in denominations of $1,000 or
multiples of $1,000. (Section 302) We may issue these debt securities in the
form of one or more global securities, as described below under the section
"Global Securities."
There will be no service charge for any transfer or exchange of the debt
securities but we may require you to pay a sum sufficient to cover any tax or
other governmental charge due in connection with a transfer or exchange of the
debt securities, and wemay require you to furnish appropriate endorsements and
transfer documents. (Section 305)
We may issue debt securities as original issue discount securities to be
sold at a substantial discount below their principal amount. If a debt security
is an original issue discount security, that means that an amount less than the
principal amount of the debt security will be due and payable if there is a
declaration of acceleration of the maturity of the debt security under the
indentures. The applicable prospectus supplement will describe the U.S. federal
income tax consequences and other special factors applicable to any debt
securities which should be considered before purchasing any original issue
discount securities.
Unless the applicable prospectus supplement indicates otherwise, we will pay
the principal of and any premium and interest on the debt securities, and
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<PAGE>
you can register the transfer of the debt securities at the principal corporate
trust office of the applicable trustee. In addition, unless the applicable
prospectus supplement indicates otherwise, we have the option to pay interest
by check mailed to registered holders of the debt securities at their
registered addresses. (Sections 301, 305, 1001 and 1002)
The applicable prospectus supplement will describe the terms of the offered
debt securities, including some or all of the following:
.the title of the offered debt securities;
. whether the offered debt securities are senior or subordinated;
. any limit on the aggregate principal amount of the offered debt
securities;
. the price(s) (expressed as a percentage of the aggregate principal
amount) at which the offered debt securities will be issued;
. the date(s) on which the offered debt securities will mature and any
rights of extension;
. the annual rate(s), if any (which may be fixed or variable), at which the
offered debt securities will bear interest, if any, or the formula by
which this rate(s) will be determined, and the date from which this
interest will accrue;
. the dates on which the interest on the offered debt securities will be
payable and the regular related record dates;
. any mandatory or optional sinking fund or analogous provisions;
. the period(s), if any, within which and the price(s) at which the offered
debt securities may be redeemed, under any redemption provisions, at our
or your option, and other detailed terms of the optional redemption
provision;
. the currency, including euro, for the payment of principal and any
premium and interest payable on the offered debt securities, if other
than in United States dollars;
. the place(s) where the principal and any premium and interest on the
offered debt securities will be payable;
. any other event(s) of default related to the offered debt securities in
addition to or in lieu of those described under the section "events of
default;"
. the denominations in which any offered debt securities will be issuable,
if other than denominations of $1,000 or any amount in excess of it which
is an integral multiple of $1,000;
. whether we may issue debt securities in whole or in part in the form of
one or more global securities and, if so, the identity of the depositary
for these global securities and the circumstances under which you may
exchange these global securities for securities registered in the name of
a person other than the depositary or its nominee, and transferred to a
person other than the depositary or its nominee; and
. any other terms of the offered debt securities consistent with the
provisions of the indentures.
Global Securities
We can issue the debt securities of a series in whole or in part in the form
of one or more global securities that will be deposited with, or on behalf of,
a depositary identified in the applicable prospectus supplement. Unless the
applicable prospectus supplement indicates otherwise, we will issue these
global securities in registered form. (Section 305). The applicable prospectus
supplement will describe the specific terms of the depositary arrangements
relating to a series of debt securities.
Subordination of Subordinated Debt Securities
The payment of the principal and interest on the subordinated debt
securities will, when stated in the subordinated indenture, be subordinate in
right of payment to the prior payment in full of all of our senior
indebtedness. (Section 1301) In some cases of insolvency, payment of principal
of and interest on the subordinated debt securities will, if stated in the
subordinated indenture, be also subordinated in right of payment to the prior
payment in full of all general obligations. A holder of subordinated debt
securities cannot demand or receive payment on the subordinated debt securities
unless all amounts of
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principal of, any premium, and interest due on all of our senior indebtedness
have been paid in full or duly provided for and, at the time of this payment or
immediately after this payment is effective:
. no event of default exists permitting the holders of the senior
indebtedness to accelerate the maturity of the senior indebtedness; or
. any event which, with notice or lapse of time or both, would become an
event of default. (Section 1302)
If our assets are paid or distributed in connection with a dissolution,
winding-up, liquidation or reorganization, the holders of our senior
indebtedness will be entitled to receive payment in full of principal, and any
premium and interest under the terms of the senior indebtedness before any
payment is made on the subordinated debt securities. (Section 1303) If:
. after giving effect to the subordination provisions in favor of the
holders of the senior indebtedness, and
. after paying or distributing assets to creditors,
any amount of cash, property or securities remains, and if, at that time,
creditors of general obligations have not received full payment on all amounts
due or to become due on these general obligations, this excess will first be
applied to pay in full all general obligations, before paying or distributing
on the subordinated debt securities. (Section 1314)
The subordinated indenture defines senior indebtedness as the principal of,
premium, if any, and interest on:
. all of our indebtedness for money borrowed, whether outstanding on the
date of execution of the subordinated indenture, or created, assumed or
incurred after that date (including any senior debt securities under the
senior indenture). Indebtedness does not include indebtedness that is
expressly stated to rank junior or equal in right of payment to the
subordinated debt securities;
. any deferrals, renewals or extensions of senior indebtedness.
The subordinated indenture defines general obligations as all of our
obligations to pay claims of general creditors, other than:
. obligations on senior indebtedness; and
. obligations on subordinated debt securities and our indebtedness for
money borrowed ranking equally or subordinate to the subordinated debt
securities. If however, the Board of Governors of the Federal Reserve
System (or other competent regulatory agency or authority) promulgates
any rule or issues any interpretation that defines general creditor(s)
the main purpose of which is to establish a criteria for determining
whether the subordinated debt of a bank holding company is to be included
in its capital, then the term general obligations will mean obligations
to general creditors as described in that rule or interpretation.
The term claim when used in the previous definition has the meaning stated
in section 101(5) of the Bankruptcy Code.
The term indebtedness for money borrowed means any obligation of ours or any
obligation guaranteed by us to repay money borrowed, whether or not evidenced
by bonds, debt securities, notes or other written instruments, and any deferred
obligation to pay the purchase price of property or assets. (Section 101)
Due to the subordination described above, if we experience bankruptcy,
insolvency or reorganization, the holders of senior indebtedness can receive
more, ratably, and holders of the subordinated debt securities can receive
less, ratably, than our creditors who are not holders of senior indebtedness or
of the subordinated debt securities. This subordination will not prevent any
event of default on the subordinated debt securities from occurring. Unless the
applicable prospectus supplement(s) indicates otherwise, the subordinated
indenture does not provide any right to accelerate the payment of the principal
of the subordinated debt securities if payment of the principal or interest, or
performance of any agreement in the subordinated debt securities or
subordinated indenture is in default. See "Events of Default" below.
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<PAGE>
The subordination provisions of the subordinated indenture described in this
prospectus are provided to holders of senior indebtedness and are not intended
for creditors of general obligations. The trustee and us can amend the
subordinated indenture to reduce or eliminate the rights of creditors of
general obligations without their consent or the consent of the holders of
subordinated debt securities. The provisions of the subordinated indenture
stating that the subordinated debt securitieswill be subordinated in favor of
creditors of general obligations will be immediately and automatically
terminated if the following arises:
. the Board of Governors of the Federal Reserve System (or other competent
regulatory agency or authority) promulgates any rule or regulation, or
issues any interpretation that:
--permits us to include the subordinated debt securities in our capital
if the debt securities were subordinated in right of payment to senior
indebtedness without regard to any of our other obligations;
--eliminates the requirement that subordinated debt of a bank holding
company must be subordinated in right of payment to its "general
creditors" to be included in capital; or
--causes the subordinated debt securities to be excluded from capital,
without regard to the subordination provisions described above; or
. an event that results in us no longer being subject to the capital
requirements of bank regulatory authorities. (Section 1315)
Restrictive Covenants
Subject to the provisions described under the section "Consolidation, Merger
and Sale of Assets," the senior indenture prohibits:
. the issue, sale or other disposition of shares of or securities
convertible into, or options, warrants or rights to subscribe for or
purchase shares of, voting stock of a principal subsidiary bank;
. the merger or consolidation of a principal subsidiary bank with or into
any other corporation; or
. the sale or other disposition of all or substantially all of the assets
of a principal subsidiary bank if,
after giving effect to the transaction and issuing the maximum number of shares
of voting stock that can be issued after the conversion or exercise of the
convertible securities, options, warrants or rights, we would own, directly or
indirectly, 80% or less of the shares of voting stock of the principal
subsidiary bank or of the successor bank which acquires the assets. (Section
1007)
In the senior indenture, we also agreed that we will not create, assume,
incur or cause to exist any pledge, encumbrance or lien, as security for
indebtedness for money borrowed on:
. any shares of or securities convertible into voting stock of a principal
subsidiary bank that we own directly or indirectly; or
. options, warrants or rights to subscribe for or purchase shares of,
voting stock of a principal subsidiary bank that we own directly or
indirectly,
without providing that the senior debt securities of all series will be equally
secured if, after treating the pledge, encumbrance or lien as a transfer to the
secured party, and after giving effect to the issuance of the maximum number of
shares of voting stock issuable after conversion or exercise of the convertible
securities, options, warrants or rights, we would own, directly or indirectly
80% or less of the shares of voting stock of the principal subsidiary bank.
(Section 1008)
The indentures define the term principal subsidiary bank as First Bank
National Association and any successor. Immediately following the acquisition
by First Bank System, Inc. of U. S. Bancorp, we reorganized First Bank National
Association and changed its name to U.S. Bank National Association.
Unless the applicable prospectus supplement indicates otherwise, the
subordinated indenture does not contain either of the restrictive covenants
stated above, nor does it contain any other provision which restricts us from:
. 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
. purchasing or redeeming our capital stock; or
. creating any liens on our property for any purpose.
Unless the applicable prospectus supplement indicates otherwise, neither
indenture contains covenants specifically designed to protect holders from a
highly leveraged transaction in which we are involved.
Events of Default
Unless otherwise provided in any supplemental indenture or officers'
certificate relating to a specific series of debt securities, the only events
defined in the senior indenture as events of default for any series of senior
debt securities, are:
. our failure to pay any interest on any senior debt securities of a series
when due, which failure continues for 30 days;
. our failure to pay any principal of or premium on any senior debt
securities of a series when due;
. our failure to make any sinking fund payment, when due, for any senior
debt securities of a series;
. our failure to perform any other covenant in the senior indenture (other
than a covenant included in the senior indenture solely for the benefit
of a series of senior debt securities other than that series), which
failure continues for 60 days after written notice;
. default in the payment of indebtedness for money borrowed under any
indenture or instrument under which we have or a principal subsidiary
bank has outstanding indebtedness in an amount in excess of $5,000,000
which has become due and has not been paid, or whose maturity has been
accelerated and the default has not been cured or acceleration annulled
within 60 days after written notice;
. some events of bankruptcy, insolvency or reorganization which involve us
or a principal subsidiary bank; and
. any other event of default related to the senior debt securities of that
series.
Unless otherwise provided, the only events defined in the subordinated
indenture as events of default for any series of subordinated debt securities,
are:
. some events of bankruptcy, insolvency or reorganization which involve us;
. some events involving the receivership, conservatorship or liquidation of
a principal subsidiary bank; and
. any other event of default provided for the subordinated debt securities
of that series. (Section 501)
If an event of default occurs and is continuing on any series of debt
securities outstanding under either indenture, then either the applicable
trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series may declare the principal amount
(or, if any of the debt securities of that series are original issue discount
debt securities, the lesser portion of the principal amount of those debt
securities) of all of the debt securities of that series to be due and payable
immediately, by notice as provided in the applicable indenture. At any time
after a declaration of acceleration has been made on the debt securities of any
series, but before the applicable trustee has obtained a judgment for payment,
the holders of a majority in aggregate principal amount of the outstanding debt
securities of that series may, under some circumstances, rescind and annul this
acceleration. (Section 502)
Subject to provisions in each indenture relating to the duties of the
trustee during a default, no trustee will be under any obligation to exercise
any of its rights or powers under the applicable indenture at the request or
direction of any of the holders of any series of debt securities then
outstanding under that indenture, unless the holders offer to the trustee
reasonable indemnity. (Sections 601, 603) The holders of a majority in
aggregate principal amount of the outstanding debt securities of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the applicable trustee, or exercising
any trust or power conferred on the trustee. (Section 512)
We must furnish to each trustee, annually, a statement regarding our
performance on some of our
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obligations under the applicable indenture and any default in our performance.
(Section 704)
Modification and Waiver
Except as otherwise specifically provided in the applicable indenture,
modifications and amendments of an indenture generally will be permitted only
with the consent of the holders of at least a majority in aggregate principal
amount of the outstanding debt securities of each series affected by the
modification or amendment. However, none of the following modifications are
effective against any holder without the consent of the holders of each
outstanding debt security affected by the modification or amendment:
. changing the stated maturity of the principal of or any installment of
principal or interest on any debt security;
. reducing the principal amount of, or premium or interest on any debt
security;
. changing any of our obligations to pay additional amounts;
. reducing the amount of principal of an original issue discount debt
security that would be due and payable at declaration of acceleration of
its maturity;
. changing the place for payment where, or coin or currency in which, any
principal of, or premium or interest on, any debt security is payable;
. impairing the right to take legal action to enforce any payment of or
related to any debt security;
. reducing the percentage in principal amount of outstanding debt
securities of any series required to modify, amend, or waive compliance
with some provisions of the indenture or to waive some defaults;
. modifying the provisions of the subordinated indenture in a manner
adverse to the holders; or
. modifying any of the above provisions. (Section 902).
The holders of at least a majority in aggregate principal amount of the
outstanding debt securities of each series can waive, as far as that series is
concerned, our compliance with some restrictive provisions of the applicable
indenture. (Section 1009).
The holders of at least a majority in aggregate principal amount of the
outstanding debt securities of each series may waive any past default under the
applicable indenture, except:
. a default in the payment of principal of, or premium, or interest on any
senior debt security; or
. a default in a covenant or provision of the applicable indenture which
cannot be modified or amended without the consent of the holder of each
outstanding debt security of the series affected. (Section 513)
Each indenture provides that, in determining whether holders of the
requisite principal amount of the outstanding debt securities have given any
request, demand, authorization, direction, notice, consent or waiver, or
whether a quorum is present at a meeting of holders of debt securities:
. the principal amount of an original issue discount debt security
considered to be outstanding will be the amount of the principal of that
original issue discount debt security that would be due and payable as of
the date that the principal is determined at declaration of acceleration
of the maturity of that original issue discount debt security; and
. the principal amount of a debt security denominated in a foreign currency
or currency unit that is deemed to be outstanding will be the U.S. dollar
equivalent, determined on the date of original issuance for that debt
security, of the principal amount (or, in the case of an original issue
discount debt security, the U.S. dollar equivalent, determined on the
date of original issuance for that debt security, of the amount
determined as provided in the bullet point above). (Section 101)
Consolidation, Merger and Sale of Assets
Without the consent of the holders of any outstanding debt securities, we
cannot consolidate with or merge into another corporation, partnership
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or trust, or convey, transfer or lease substantially all of our properties and
our assets, to a corporation, partnership or trust organized or validly
existing under the laws of any domestic jurisdiction unless:
. the successor entity assumes our obligations on the debt securities and
under the indentures;
. immediately after the transaction, we would not be in default under the
indentures and no event which, after notice or the lapse of time, would
become an event of default under the indentures, shall have occurred and
be continuing; and
.other conditions are met. (Section 801)
Regarding Citibank, N.A.
Some of our subsidiaries and us maintain deposits with and conduct other
banking transactions with Citibank, N.A. in the ordinary course of business.
DESCRIPTION OF PREFERRED STOCK
This prospectus describes the general terms and provisions of the preferred
stock that are offered by this prospectus. The applicable prospectus supplement
will describe the specific terms of the series of the preferred stock offered
under that prospectus supplement and any general terms outlined in this section
that will not apply to that series of preferred stock.
We have filed a form of certificate of designation, preferences and rights
of preferred stock as an exhibit to the registration statement.
This section summarizes the material terms and provisions of the preferred
stock. Because this is a summary, it does not contain all of the details found
in the full text of the certificate of designation and our restated certificate
of incorporation. If you would like additional information, you should read the
certificate of designation and our restated certificate of incorporation.
General
Our restated certificate of incorporation, provides that our board of
directors can issue, without stockholder action, a maximum of 50,000,000 shares
of preferred stock. This amount includes shares issued or reserved for
issuance, in one or more series and with those terms, times and consideration
as the board of directors determines. Our board of directors can determine the
following:
. the number of shares and their designation or title;
. rights as to dividends;
. whether and on what terms the shares are redeemable;
. whether and on what terms the shares shall have a purchase, retirement or
sinking fund;
. whether and on what terms the shares are convertible;
. the voting rights, if any, of the preferred stock being offered;
. restrictions, if any, on the issue or reissue of any additional preferred
stock;
. the rights of holders on our dissolution, or distribution of our assets;
and
. any other preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions of the
series.
On March 31, 1999, we had 56,539 shares of preferred stock outstanding and
an additional 12,750 shares authorized and reserved for issuance.
As described under the section "Description of Depositary Shares," we may
choose to offer depositary shares evidenced by depositary receipts, each
representing a fractional interest in a share of the particular series of the
preferred stock issued and deposited with a depositary.
Under interpretations adopted by the Federal Reserve Board, if the holders
of any series of preferred stock become entitled to vote for the election of
directors because dividends on that series are in arrears as described under
the section "Voting Rights" below, that series may then be considered a class
of voting securities. A holder of 25% or more of a series, or a holder of 5% or
more of a series may if it otherwise exercises a controlling influence over us,
may then be subject to regulation as a bank holding company under the Bank
Holding Company Act. In addition, at the time that the series are
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deemed a class of voting securities, any other bank holding company may be
required to obtain the prior approval of the Federal Reserve Board in order to
acquire 5% or more of that series, and any person other than a bank holding
company may be required to obtain the prior approval of the Federal Reserve
Board to acquire 10% or more of that series.
The preferred stock will have the dividend, liquidation, redemption and
voting rights stated in this section unless the applicable prospectus
supplement indicates otherwise. You should read the applicable prospectus
supplement relating to the particular series of the preferred stock being
offered for specific terms, including:
. the title, stated value and liquidation preferences of the preferred
stock and the number of shares offered;
. the initial public offering price at which the preferred stock will be
issued;
. the dividend rate(s) (or method of calculation), the dividend periods,
the dates on which dividends shall be payable and whether these dividends
will be cumulative or noncumulative and, if cumulative, the dates at
which the dividends shall begin to cumulate;
. any redemption or sinking fund provisions;
. whether we have elected to offer depositary shares as described under the
section "Description of Depositary Shares;" and
. any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
When we issue shares of preferred stock, the series will be fully paid and
nonassessable, meaning, the full purchase price of the outstanding shares of
preferred stock will have been paid and the holders of the shares will not be
assessed any additional monies for the shares. Unless the applicable prospectus
supplement indicates otherwise, each series of the preferred stock will rank
equally with any outstanding shares of our preferred stock and each other
series of the preferred stock, and will rank senior to our junior preferred
stock described below. The preferred stock will have no preemptive rights to
subscribe for any additional securities which are issued by us, meaning, the
holders of shares of preferred stock will have no right to buy any portion of
the issued securities. Unless the applicable prospectus supplement indicates
otherwise, First Chicago Trust Company of New York will be the transfer agent
and registrar for the preferred stock and any depositary shares.
Dividends
The holders of the preferred stock of each series will be entitled to
receive cash dividends out of funds legally available, when, as and if,
declared by the board of directors or a duly authorized committee of the board
of directors, at the rates and on the dates stated in the applicable prospectus
supplement. These rates may be fixed, or variable, or both. If the dividend
rate is variable, the applicable prospectus supplement will describe the
formula used to determine the dividend rate for each dividend period. We will
pay dividends to the holders of record as they appear on our stock books on the
record dates determined by our board of directors or authorized committee.
Unless the applicable prospectus supplement indicates otherwise, dividends on
any series of preferred stock will be cumulative.
Our board of directors will not declare and pay a dividend on any of our
stock ranking as to dividends, equal with or junior to the preferred stock
unless full dividends on the preferred stock have been declared and paid (or
declared and sufficient money was set aside for payment).
Until dividends are paid in full or declared and set aside for payment on
any series of preferred stock and ranking equal with the preferred stock as to
dividends:
. we will declare all dividends pro rata among the preferred stock of each
series, so that the amount of dividends declared per share on each series
will have the same relationship to each other that accrued dividends per
share on each series of preferred stock and other preferred stock bear to
each other;
. other than the pro rata dividends, we will not declare or pay or set
aside for payment dividends, or declare or make any other distribution on
any security ranking junior to or equal with the preferred stock offered
under this prospectus as to dividends or at liquidation (except dividends
or distributions
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paid for in shares of, or options, warrants or rights to subscribe or
purchase shares of securities ranking junior to or equal with the
preferred stock as to dividends and at liquidation);
. we will not redeem, purchase or otherwise acquire for any consideration
(or any monies be paid to or set aside in a sinking fund) any securities
ranking junior to or equal with the preferred stock as to dividends or at
liquidation (except by conversion into or exchange for our stock which
ranks junior to the preferred stock as to dividends and at liquidation).
We will not pay interest, or money in lieu of interest, for any dividend
payment(s) on any series of the preferred stock that are in arrears.
Voting Rights
Unless the applicable prospectus supplement indicates otherwise, or unless
required by law, holders of preferred stock will not have any voting rights.
If, at the time of any annual meeting of shareholders for the election of
directors, the amount of accrued but unpaid dividends on any of our preferred
stock is equal to at least six quarterly dividends on that series of preferred
stock, we will increase the number of directors by two and the holders of all
outstanding series of our preferred stock (excluding the Series 1990A preferred
stock described below under "Description of Outstanding Preferred Stock"),
voting as a single class, without regard to series, will be entitled to elect
two additional directors until all dividends in default on all of our preferred
stock have been paid or declared and set aside for payment.
The affirmative vote or consent of holders of at least two-thirds of the
outstanding shares of any series of our preferred stock, voting as a class, is
required for any amendment to our restated certificate of incorporation
(including any certificate of designation or similar document relating to any
series of preferred stock) which will adversely affect the powers, preferences,
privileges or rights of the series of preferred stock. The affirmative vote or
consent of holders of at least two-thirds of the outstanding shares of any
series of preferred stock, voting as a single class without regard to the
series, is required to issue, authorize, or increase the authorized amount of,
or issue or authorize any obligation or security convertible into or evidencing
a right to purchase the additional class or series of stock ranking prior to
the series of preferred stock as to dividends or upon liquidation.
Redemption
A series of the preferred stock may be redeemable, in whole or in part, at
our option, and may be subject to mandatory redemption under a sinking fund or
otherwise as described in the applicable prospectus supplement. The preferred
stock that we redeem will be restored to the status of authorized but unissued
shares of preferred stock which we may issue in the future.
If a series of preferred stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that we will
redeem in each year and the redemption price per share together with an amount
equal to all accrued and unpaid dividends on those shares to the redemption
date. The applicable prospectus supplement will state whether the redemption
price can be paid in cash or other property. If the redemption price is to be
paid only from the net proceeds of issuing our capital stock, the terms of the
series of preferred stock may provide that, if the capital stock has not been
issued or if the net proceeds are not sufficient to pay the full redemption
price then due, the shares relating to series of the preferred stock shall
automatically and mandatorily be converted into shares of our capital stock
under the conversion provisions of the applicable prospectus supplement.
If fewer than all of the outstanding shares of any series of the preferred
stock are to be redeemed, our board of directors will determine the number of
shares to be redeemed. We will redeem those shares pro rata from the holders of
record in proportion to the number of shares held by holders (with adjustments
to avoid redemption of fractional shares).
Even though the terms of a series of preferred stock may permit redemption
of the preferred stock in whole or in part, if any dividends, including
accumulated dividends, on that series are past due,
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we will not redeem any preferred stock of that series unless we simultaneously
redeem all outstanding preferred stock of that series, and we do not purchase
or otherwise acquire any preferred stock of that series. This does not prohibit
the purchase or acquisition of preferred stock under a purchase or exchange
offer if this offer is made to all holders of the series of the preferred stock
on the same terms.
We will give notice of a redemption between 30 to 60 days before the date
fixed for redemption. We will mail the notice to each record holder of the
shares to be redeemed, at their address as it appears on our stock books. Each
notice will state:
. the redemption date;
. the number of shares and series of the preferred stock to be redeemed;
. the redemption price;
. the place(s) where a holder can surrender the certificates for the
preferred stock for payment of the redemption price; and
. that dividends on the shares to be redeemed will cease to accrue on the
redemption date.
If we redeem fewer than all shares of any series of the preferred stock held
by any holder, we will also specify in the notice the number of shares to be
redeemed from the holder.
If we have provided notice of redemption, then beginning on the redemption
date for the shares of the series of the preferred stock called for redemption
(unless we default in providing money for payment of the redemption price):
. dividends on the shares of preferred stock called for redemption will
cease to accrue;
. those shares will no longer be considered outstanding; and
. the holders will no longer have any rights as stockholders except to
receive the redemption price.
When the holders properly surrender the redeemed shares, we will pay the
redemption price mentioned above out of funds provided by us. If we redeem
fewer than all of the shares represented by any certificate, we will issue a
new certificate representing the unredeemed shares without cost to the holder.
Conversion and Exchange
If any series of offered preferred stock is convertible into or exchangeable
for any other class or series of our capital stock, the applicable prospectus
supplement relating to that series will include the terms and conditions
governing the conversions and exchanges.
Rights at Liquidation
If we voluntarily or involuntarily liquidate, dissolve or wind up our
business, the holders of shares of each series of preferred stock and any other
securities that have rights equal to that series of preferred stock under these
circumstances, will be entitled to receive out of our assets that are available
for distribution to stockholders:
. liquidation distributions in the amount stated in the applicable
prospectus supplement; and
. all accrued and unpaid dividends (whether or not earned or declared),
before any distribution to holders of common stock or of any securities ranking
junior to the series of preferred stock.
Neither the sale of all or any part of our property and business, nor our
merger into or consolidation with any other corporation nor the merger or
consolidation of any other corporation with or into us, will be deemed to be a
dissolution, liquidation or winding up.
If our assets are insufficient to pay all amounts to which holders of
preferred stock are entitled, we will make no distribution on the preferred
stock or on any other securities ranking equal to the preferred stock unless we
make a pro rata distribution to those holders. After we pay the full amount of
the liquidation distribution to which the holders are entitled, the holders
will have no right or claim to any of our remaining assets.
Description of Outstanding Preferred Stock
Series 1990 A Preferred Stock. In connection with our sale of 37,800,000
shares of our common stock and accompanying periodic stock purchase rights and
risk event warrants in a private placement in July 1990, we may under certain
circumstances be obligated to issue up to 12,750 shares of series 1990A
preferred stock.
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The shares of our series 1990A preferred stock would, if issued, provide for
a liquidation preference of $100,000 per share.
The dividend rate would be adjusted quarterly and would be determined at the
time of issuance.
If, at the time of any annual meeting of stockholders for the election of
directors, the amount of accrued but unpaid dividends on our series 1990A
preferred stock is equal to at least six quarterly dividends, then we would
increase the number of directors by one and the holders of the series, voting
as a separate class, would be entitled to elect one additional director who
would continue to serve the full term for which he or she would have been
elected, notwithstanding the declaration or payment of any dividends on our
series 1990A preferred stock. Holders of our series 1990A preferred stock would
not have any other voting rights, except as described under the section "Voting
Rights" above.
Term Participating Preferred Stock. In connection with an acquisition, we
established a series of preferred stock, the term participating preferred
stock, par value $1.00 per share. Holders of the term participating preferred
stock will have the right to receive our common stock in exchange for their
preferred stock. The number of shares of term participating preferred stock as
of March 31, 1999, is 56,539.
Holders of the term participating preferred stock are entitled to cumulative
dividends, when declared by our board of directors.
In the event of our voluntary or involuntary liquidation, distribution or
sale of our assets, or our dissolution or winding up, the holders of
outstanding term participating preferred stock will be entitled to receive the
distribution amount, plus accrued and unpaid dividends, if any.
The shares of term participating preferred stock are not redeemable. Holders
of shares of term participating preferred stock shall have no voting rights,
except as required by law.
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms and provisions of the depositary
shares. The applicable prospectus supplement will describe the specific terms
of the series of the depositary shares offered under that applicable prospectus
supplement and any general terms outlined in this section that will not apply
to those depositary shares.
We have filed a form of deposit agreement, including the form of depositary
receipt, as an exhibit to the registration statement.
This section summarizes the material terms and provisions of the deposit
agreement, the depositary shares and the depositary receipts. Because this is a
summary it does not contain all of the details found in the full text of the
deposit agreement, the depositary shares and the depositary receipts. If you
would like additional information, you should read the form of deposit
agreement, the form of the depositary shares and the form of depositary
receipts relating to the applicable series of preferred stock.
General
We may offer fractional, rather than full shares of preferred stock. If we
exercise this option, we will provide for the issuance by a depositary to the
public of depositary receipts evidencing depositary shares, each of which will
represent a fractional interest (to be stated in the applicable prospectus
supplement relating to a particular series of the preferred stock) in a share
of a particular series of the preferred stock.
We will deposit the shares of any series of the preferred stock underlying
the depositary shares under a separate deposit agreement between us and a bank
or trust company selected by us, known as a Depositary, having its principal
office in the United States, and having a combined capital and surplus of at
least $50 million. The applicable prospectus supplement will provide the name
and address of the Depositary. Subject to the terms of the deposit agreement,
each owner of a depositary share will have a fractional interest in all the
rights and preferences of the preferred stock underlying the depositary share.
These rights include any dividend, voting, redemption, conversion and
liquidation rights.
While the final depositary receipts are being prepared, we may order the
Depositary, in writing, to issue temporary depositary receipts substantially
identical to the final depositary receipts although not
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in final form. This will entitle the holders to all the rights relating to the
final depositary receipts. Final depositary receipts will be prepared without
unreasonable delay, and the holders of the temporary depositary receipts can
exchange them for the final depositary receipts at our expense.
Withdrawal of Preferred Stock
If you surrender depositary receipts at the principal corporate trust office
of the Depositary (unless the related depositary shares have previously been
called for redemption), you are entitled to receive at that office, should you
so request, the number of shares of preferred stock and any money or other
property represented by the depositary shares. We will not issue partial shares
of preferred stock. If you deliver a number of depositary receipts evidencing a
number of depositary shares that represent more than a whole number of
depositary shares of preferred stock to be withdrawn, the Depositary will issue
you a new depositary receipt evidencing the excess number of depositary shares
at the same time that the preferred stock is withdrawn. Holders of preferred
stock will no longer be entitled to deposit these shares under the deposit
agreement or to receive depositary shares in exchange for those withdrawn
shares of preferred stock. We cannot assure you that a market will exist for
the withdrawn preferred stock.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received for the preferred stock (less any taxes required to be
withheld) to the record holders of depositary shares representing the preferred
stock in proportion to the number of depositary shares that the holders own on
the relevant record date. The Depositary will distribute only the amount that
can be distributed without attributing to any holder of depositary shares a
fraction of one cent. The balance not distributed will be added to and treated
as part of the next sum that the Depositary receives for distribution to record
holders of depositary shares.
If there is a distribution other than in cash, the Depositary will
distribute property to the record holders of depositary shares that are
entitled to it, unless the Depositary determines that it is not feasible to
make this distribution. If this occurs, the Depositary may, with our approval,
sell the property and distribute the net proceeds from the sale to the holders
of depositary shares.
The deposit agreement will also contain provisions relating to the manner in
which any subscription or similar rights that we offer to holders of the
preferred stock will be made available to holders of depositary shares.
Conversion and Exchange
Unless the applicable prospectus supplement indicates otherwise, the series
of preferred stock underlying the depositary shares will not be convertible or
exchangeable into any other class or series of our capital stock.
Redemption of Deposited Preferred Stock
If a series of preferred stock underlying the depositary shares is subject
to redemption, we will redeem the depositary shares from the redemption
proceeds received by the Depositary, in whole or in part, on the series of
preferred stock held by the Depositary. The Depositary will mail notice of
redemption between 30 and 60 days before the date fixed for redemption to the
record holders of the depositary shares to be redeemed at the address appearing
in the Depositary's records. The redemption price per depositary share will
bear the same relationship to the redemption price per share of preferred stock
that the depositary share bears to the underlying preferred stock. When we
redeem preferred stock held by the Depositary, the Depositary will redeem as of
the same redemption date, the number of depositary shares representing the
preferred stock redeemed. If less than all the depositary shares are to be
redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as we may determine.
From and after the date fixed for redemption, the depositary shares called
for redemption will no longer be outstanding. When the depositary shares are no
longer outstanding, all rights of the holders of depositary shares will cease,
except the right to receive money or property that the holders of the
depositary shares were entitled to receive on redemption. The payments will be
made when holders surrender their depositary receipts to the Depositary.
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Voting of Deposited Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred
stock are entitled to vote, the Depositary will mail the information contained
in the notice to the record holders of the depositary shares relating to the
preferred stock. Each record holder of the depositary shares on the record date
(which will be the same date as the record date for the preferred stock) will
be entitled to instruct the Depositary on how the preferred stock underlying
the holder's depositary shares should be voted. The Depositary will try, if
practicable, to vote the number of shares of preferred stock underlying the
depositary shares according to the instructions received, and we will take all
action that the Depositary may consider necessary to enable the Depositary to
do so. The Depositary will not vote any preferred stock if it does not receive
specific instructions from the holders of depositary shares relating to the
preferred stock.
Taxation
Owners of depositary shares will be treated for U.S. federal income tax
purposes as if they were owners of the preferred stock represented by the
depositary shares. Accordingly, for U.S. federal income tax purposes, they will
have the income and deductions to which they would have been entitled if they
were holders of the preferred stock. In addition:
. no gain or loss will be recognized for federal income tax purposes when
preferred stock is withdrawn in exchange for depositary shares as
provided in the deposit agreement;
. the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, at the exchange, be the same as the aggregate tax
basis of the depositary shares exchanged; and
. the holding period for the preferred stock in the hands of an exchanging
owner of depositary shares who held the depositary shares as a capital
asset at the time of the exchange, will include the period during which
the person owned the depositary shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended at any time by an agreement
between us and the Depositary. However, any amendment that materially and
adversely alters the rights of the existing holders of depositary shares will
not be effective unless approved by the record holders of at least a majority
of the depositary shares then outstanding. A deposit agreement may be
terminated by either the Depositary or us only if:
. all outstanding depositary shares relating to the deposit agreement have
been redeemed; or
. there has been a final distribution on the preferred stock of the
relevant series in connection with our liquidation, dissolution or
winding up and the distribution has been distributed to the holders of
the related depositary receipts evidencing the depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges
of the Depositary associated with the initial deposit and any redemption of the
preferred stock. Holders of depositary shares will pay transfer and other taxes
and governmental charges, and any other charges that are stated to be their
responsibility in the deposit agreement.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering notice to us. We may
also remove the Depositary at any time. Resignations or removals will be
effective when a successor Depositary is appointed, and when the successor
accepts the appointment. The successor Depositary must be appointed within 60
days after delivery of the notice of resignation or removal and must be a bank
or trust company having its principal office in the United States and a
combined capital and surplus of at least $50 million.
Miscellaneous
The Depositary will forward to the holders of depositary shares all reports
and communications that it receives from us, and that we are required to
furnish to the holders of the preferred stock.
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Neither the Depositary nor us will be liable if the Depositary is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the deposit agreement. Our obligations and that of the
Depositary under the deposit agreement will be limited to performance in good
faith of the duties described in the deposit agreement. Neither the Depositary
nor us will be obligated to prosecute or defend any legal proceeding connected
with any depositary shares or preferred stock unless satisfactory indemnity is
furnished to the Depositary and us. The Depositary and us may rely on written
advice of counsel or accountants, or information provided by persons presenting
preferred stock for deposit, holders of depositary shares or other persons
believed to be competent and on documents believed to be genuine.
DESCRIPTION OF DEBT WARRANTS
This section describes the general terms and provisions of the warrants. The
applicable prospectus supplement will describe the specific terms of the
warrants offered under that applicable prospectus supplement and any general
terms outlined in this section that will not apply to those warrants.
We have filed a form of warrant agreement, including the form of warrant
certificate, as an exhibit to the registration statement.
This section summarizes the material terms and provisions of the warrants.
Because this is a summary, it does not contain all of the details found in the
full text of the warrant agreement and the warrant certificate. If you would
like additional information you should read the form of warrant agreement and
the warrant certificate relating to the applicable series of debt securities.
We may issue warrants independently or, together with debt securities. The
warrants will be issued under warrant agreements between us and a bank or trust
company, as warrant agent, all as stated in the applicable prospectus
supplement. The warrant agent will act solely as our agent in connection with
the warrants and will not assume any obligation or relationship of agency or
trust for or with any holders or beneficial owners of warrants.
General
The applicable prospectus supplement will describe the terms of the warrants
offered in this prospectus, including the following, if applicable:
. the offering price;
. the currencies in which the warrants are being offered;
. the title of the warrants;
. the designation, aggregate principal amount and terms of the debt
securities for which the warrants are exercisable and the procedures and
conditions relating to the exercise of those warrants;
. the designation and terms of any related debt securities with which the
warrants are to be issued and the number of the warrants offered with
each debt security;
. the date, if any, on and after which the holder of the warrants can
transfer them separately from the related debt securities;
. the principal amount of debt securities that can be purchased if a holder
exercises each warrant and the price at which the principal amount can be
purchased upon exercise;
. the date on which the right to exercise the warrants will commence and
the date on which this right will expire;
. if the debt securities that can be purchased at the exercise of a warrant
are original issue discount debt securities, a discussion of the
applicable U.S. federal income tax consequences; and
. whether the warrant certificates representing the warrants will be issued
in registered or bearer form, and if registered, where they are
transferred and registered.
The holder can exchange warrant certificates for new warrant certificates of
different authorized denominations, and can exercise his or her warrants at the
corporate trust office of the warrant agent or any other office indicated in
the applicable prospectus supplement. Holders of warrants will not have any of
the rights of holders of the debt securities that can be purchased if a holder
exercises the warrant and will not be entitled to payments of principal of, and
any premium or interest on the underlying debt securities before they exercise
their warrants.
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Exercise of Debt Warrants
Each warrant entitles the holder of that warrant to purchase the principal
amount of debt securities at the price stated, or determinable in the
applicable prospectus supplement. A holder can exercise warrants during the
period(s) stated in the applicable prospectus supplement. After the close of
business on the expiration date, unexercised warrants will become void.
A holder can exercise warrants as stated in the applicable prospectus
supplement relating to the warrants. We will, as soon as practicable, forward
to you the debt securities purchased upon exercise. If less than all of the
warrants represented by the warrant certificates are exercised, a new warrant
certificate will be issued for the remaining warrants.
FOREIGN CURRENCY RISKS
General
We can denominate the securities of a series in, and the principal of, and
any interest or premium on these securities can be payable in any foreign
currencies that we may designate at the time of offering. The applicable
prospectus supplement will describe the material risks relating to a particular
series of foreign currency securities.
Exchange Rates and Exchange Controls
An investment in foreign currency securities entails significant risks that
are not associated with a similar investment in a security denominated in U.S.
dollars. These risks include, without limitation:
. the possibility of significant changes in the rate of exchange between
the United States dollar and the currency or currency unit specified in
the applicable prospectus supplement; and
. the possibility of the imposition or modification of foreign exchange
controls by either the United States or foreign governments.
These risks generally depend on economic and political events over which we
have no control. In recent years, rates of exchange between the U.S. dollar and
some foreign currencies have been highly volatile and this volatility can be
expected in the future. Fluctuations in any particular exchange rate that have
occurred in the past do not necessarily indicate fluctuations in the rate that
may occur during the term of any foreign currency security.
Depreciation of the specified currency applicable to a foreign currency
security against the United States dollar would result in a decrease in:
. the U.S. dollar-equivalent yield of the security (or the debt security
purchasable at the time of exercise of any warrant);
. the U.S. dollar-equivalent value of the principal repayable at maturity
of the security (or the debt security purchasable at the time of exercise
of a warrant); and
. the U.S. dollar-equivalent market value of the security.
Governments have imposed from time to time exchange controls and may in the
future impose or revise exchange controls at or before the maturity of a
foreign currency security (or the maturity of the debt security issuable at the
time of exercise of a warrant). Even if there are no exchange controls, it is
possible that the specified currency for any particular foreign currency
security will not be available at the maturity of the debt security (or the
maturity of the debt security issuable at the time of exercise of a warrant)
due to circumstances beyond our control.
Judgments
If an action based on foreign currency securities was commenced in a court
of the United States, it is likely that the court would grant judgment relating
to those securities only in U.S. dollars. It is not clear, however, whether, in
granting this judgment, the rate of conversion into U.S. dollars would be
determined with reference to the date of default, the date the judgment is
rendered, or some other date. Under current New York law, a state court in the
State of New York that gives a judgment on a foreign currency security would be
required to give the judgment in the specified currency in which the foreign
currency security is denominated, and this judgment would be converted into
U.S. dollars at the exchange rate prevailing on the date of entry of the
judgment. Holders of foreign currency securities would bear the risk of
exchange rate fluctuations
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between the time the amount of the judgment is calculated and the time that the
applicable trustee converts U.S. dollars to the specified currency for payment
of the judgment.
Limited Facilities for Conversion
Currently, there are limited facilities in the United States for conversion
of U.S. dollars into foreign currencies, and vice versa. In addition, banks
generally do not offer non-U.S. dollar denominated checking or savings account
facilities in the United States. Accordingly, payments on foreign currency
securities will, unless otherwise specified in the applicable prospectus
supplement, be made from an account with a bank located in the country issuing
the specified currency or, for foreign currency securities, denominated in
euro, Brussels.
BOOK-ENTRY ISSUANCE
DTC will act as securities depositary for all of the debt securities, unless
otherwise stated in the applicable prospectus supplement. We will issue the
debt securities only as fully-registered securities registered in the name of
Cede & Co. (DTC's nominee). We will issue and deposit with DTC one or more
fully-registered global certificates for the debt securities representing in
the aggregate, the total number of the debt securities.
DTC is a limited purpose trust company organized under the New York Banking
Law, a banking organization under the meaning of the New York Banking Law, a
member of the Federal Reserve System, a clearing corporation under the meaning
of the New York Uniform Commercial Code, and a clearing agency registered under
the provisions of Section 17A of the Exchange Act. DTC holds securities that
its participants deposit with DTC. DTC also facilitates the settlement among
participants of securities transactions, like transfers and pledges, in
deposited securities through electronic computerized book-entry changes in the
participants' accounts, eliminating in this manner the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations and other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Others like securities brokers
and dealers, banks and trust companies that clear through or maintain custodial
relationships with Direct Participants, either directly or indirectly also have
access to the DTC system. The rules applicable to DTC and its participants are
on file with the SEC.
Purchases of debt securities within the DTC system must be made by or
through Direct Participants, who will receive a credit for the debt securities
on DTC's records. The ownership interest of each actual purchaser of each debt
security is in turn to be recorded on the Direct and Indirect Participants'
records. DTC will not send written confirmation to Beneficial Owners of their
purchases, but Beneficial Owners are expected to receive written confirmations
providing details of the transactions, as well as periodic statements of their
holdings, from the Direct or Indirect Participants through which the Beneficial
Owners purchased debt securities. Transfers of ownership interests in the debt
securities are to be accomplished by entries made on the books of participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in debt securities, unless
the book-entry system for the debt securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the debt securities.
DTC's records reflect only the identity of the Direct Participants to whose
accounts the debt securities are credited, which may or may not be the
Beneficial Owners. The participants will remain responsible for keeping account
of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners,
subject to any statutory or regulatory requirements as is in effect from time
to time, will be governed by arrangements among them.
We will send redemption notices to Cede & Co. as the registered holder of
the debt securities. If less than all of the debt securities are redeemed,
DTC's
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current practice is to determine by lot the amount of the interest of each
Direct Participant to be redeemed.
Although voting on the debt securities is limited to the holders of record
of the debt securities, in those instances in which a vote is required, neither
DTC nor Cede & Co. will itself consent or vote on debt securities. Under its
usual procedures, DTC would mail an omnibus proxy to the relevant trustee as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to Direct Participants for whose accounts the debt
securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
The relevant trustee will make distribution payments on the debt securities
to DTC. DTC's practice is to credit Direct Participants' accounts on the
relevant payment date in accordance with their respective holdings shown on
DTC's records unless DTC has reason to believe that it will not receive
payments on the payment date. Standing instructions and customary practices
will govern payments from participants to Beneficial Owners. Subject to any
statutory or regulatory requirements, participants, and not DTC, the relevant
trustee, trust or us, will be responsible for the payment. The relevant trustee
is responsible for payment of distributions to DTC. Direct and Indirect
Participants are responsible for the disbursement of the payments to the
Beneficial Owners.
DTC may discontinue providing its services as securities depositary on any
of the debt securities at any time by giving reasonable notice to the relevant
trustee and to us. If a successor securities depositary is not obtained, final
debt securities certificates must be printed and delivered. We may, at our
option, decide to discontinue the use of the system of book-entry transfers
through DTC (or a successor depositary). After an event of default, the holders
of an aggregate principal amount of debt securities may discontinue the system
of book-entry transfers through DTC. In this case, final certificates for the
debt securities will be printed and delivered.
We have obtained the information in this section about DTC and DTC's book-
entry system from sources that we believe to be accurate, and we assume no
responsibility for the accuracy of the information. We have no responsibility
for the performance by DTC or its participants of their respective obligations
as described in this prospectus or under the rules and procedures governing
their respective operations.
PLAN OF DISTRIBUTION
We may sell the securities:
.through underwriters or dealers;
.directly to one or more purchasers; or
.through agents.
The applicable prospectus supplement will include the names of underwriters,
dealers or agents retained. The applicable prospectus supplement will also
include the purchase price of the securities, our proceeds from the sale, any
underwriting discounts or commissions and other items constituting
underwriters' compensation, and any securities exchanges on which the
securities are listed.
The underwriters will acquire the securities for their own account. They may
resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the
securities will be subject to some conditions. The underwriters will be
obligated to purchase all the securities offered if any of the securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
Underwriters, dealers, and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from us and any profit on the resale
of the securities by them may be treated as underwriting discounts and
commissions under the Securities Act.
We may have agreements with the underwriters, dealers, and agents to
indemnify them against some civil liabilities, including liabilities under the
Securities Act, or to contribute to payments which the underwriters, dealers or
agents may be required to make.
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Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their
businesses.
We may authorize underwriters, dealers and agents to solicit offers by some
specified institutions to purchase securities from us at the public offering
price stated in the applicable prospectus supplement under delayed delivery
contracts providing for payment and delivery on a specified date in the future.
These contracts will be subject only to those conditions included in the
applicable prospectus supplement, and the applicable prospectus supplement will
state the commission payable for solicitation of these contracts.
Unless the applicable prospectus supplement states otherwise, all
securities, except for common stock, will be new issues of securities with no
established trading market. Any underwriters who purchase securities from us
for public offering and sale may make a market in those securities, but these
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot assure you that the liquidity of
the trading market for any securities will be liquid.
VALIDITY OF SECURITIES
Validity of the securities will be passed upon for us by Dorsey & Whitney
LLP, Minneapolis, Minnesota, and for any underwriters or agents, by Davis Polk
& Wardwell, New York, New York. Davis Polk & Wardwell will rely as to all
matters governed by Minnesota law on the opinion of Dorsey & Whitney LLP, and
Dorsey & Whitney LLP will rely as to all matters governed by New York law on
the opinion of Davis Polk & Wardwell. Dorsey & Whitney LLP and some of its
members are indebted to and have other banking and trust relationships with
some of our banking subsidiaries.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report (Form 10-K) for the year
ended December 31, 1998, as stated in their report which is incorporated by
reference in this prospectus. Our consolidated financial statements are
incorporated in this prospectus by reference in reliance on Ernst & Young's
report given on their authority as experts in accounting and auditing.
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GLOSSARY
Below are abbreviated definitions of capitalized terms used in this
prospectus and in the applicable prospectus supplement. The applicable
prospectus supplement may contain a more complete definition of some of the
terms defined here and reference should be made to the applicable prospectus
supplement for a more complete definition of these terms.
"Beneficial owner" refers to the ownership interest of each actual purchaser
of each debt security.
"Company" refers to U.S. Bancorp and its subsidiaries, unless otherwise
stated.
"Debt" refers to, for any person, whether recourse is to all or a portion of
the assets of the person and whether or not contingent:
. every obligation of the person for money borrowed;
. every obligation of the person evidenced by bonds, debt securities,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
. every reimbursement obligation of the person regarding letters of
credit, bankers' acceptances or similar facilities issued for the
account of the person;
. every obligation of the person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of
business);
. every capital lease obligation of the person;
. all indebtedness of the person whether incurred on, before, or after the
date of the indenture, for claims relating to derivative products
including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; and
. every obligation of the type referred to in the first through the sixth
bullet points above of another person and all dividends of another
person the payment of which, in either case, the person has guaranteed
or is responsible or liable, directly or indirectly, as obligor or
otherwise.
"Depositary" refers to a bank or trust company selected by us, having its
principal office in the United States, and having a combined capital and
surplus of at least $50 million, and where we will deposit the shares of any
series of the preferred stock underlying the depositary shares under a separate
deposit agreement between us and that bank or trust company.
"Direct Participants" refers to securities brokers and dealers, banks, trust
companies, clearing corporations and other organizations who, with the New York
Stock Exchange, Inc., the American Stock Exchange Inc., and the National
Association of Securities Dealers, Inc., own DTC. Purchases of debt securities
within the DTC system must be made by or through Direct Participants who will
receive a credit for the debt securities on DTC's records.
"Indirect Participants" refers to others, like securities brokers and
dealers, banks and trust companies that clear through or maintain custodial
relationships with Direct Participants, either directly or indirectly, and who
also have access to the DTC system.
"Omnibus Proxy" refers to the omnibus proxy that DTC would mail under its
usual procedures to the relevant trustee as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to
Direct Participants for whose accounts the debt securities are credited on the
record date.
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"Our" refers to U.S. Bancorp and its subsidiaries, unless otherwise stated.
"Ours" refers to U.S. Bancorp and its subsidiaries, unless otherwise stated.
"Us" refers to U.S. Bancorp and its subsidiaries, unless otherwise stated.
"We" refers to U.S. Bancorp and its subsidiaries, unless otherwise stated.
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You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide you
with different information. Neither we nor the underwriters are making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus is accurate as of
any date other than the date on the front of this document.
----------------
TABLE OF CONTENTS
Prospectus
<TABLE>
<CAPTION>
Page
----
<S> <C>
About this Prospectus.................................................... 2
Where You Can Find More Information...................................... 2
About U.S. Bancorp....................................................... 3
Use of Proceeds.......................................................... 4
Ratios of Earnings to Fixed Charges and to Combined Fixed Charges and
Preferred Stock Dividends............................................... 4
Description of Debt Securities........................................... 5
Description of Preferred Stock........................................... 11
Description of Depositary Shares......................................... 15
Description of Debt Warrants............................................. 18
Foreign Currency Risks................................................... 19
Book-entry Issuance...................................................... 20
Plan of Distribution..................................................... 21
Validity of Securities................................................... 22
Experts.................................................................. 22
Glossary................................................................. 23
</TABLE>
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$2,300,000,000
U.S. Bancorp
Debt Securities,
Preferred Stock,
Depositary Shares and
Debt Warrants
----------------
PROSPECTUS
----------------
, 1999
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 we are not soliciting offers to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to completion, dated July 23, 1999
PROSPECTUS
[LOGO]
U.S. Bancorp
601 Second Avenue South
Minneapolis, Minnesota 55402
(612) 973-1111
$2,300,000,000
U.S. Bancorp
Junior Subordinated Deferrable
Interest Debt Securities
USB Capital III
USB Capital IV
USB Capital V
Capital Securities
Fully and unconditionally guaranteed, as described in this prospectus, by U.S.
Bancorp
-----------
We will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the applicable prospectus
supplement carefully before you invest.
-----------
The securities will be unsecured obligations of USB and/or the trusts and
will not be savings accounts deposits or other obligations of any bank or non-
bank subsidiary of USB and/or the trusts and are not insured by the Federal
Deposit Insurance Corporation, the Bank Insurance Fund or any other government
agency.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus may not be used to sell securities unless accompanied by the
applicable prospectus supplement.
The date of this Prospectus is , 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we, along with the
trusts, USB Capital III, USB Capital IV and USB Capital V, filed with the SEC
using a shelf registration process. Under this shelf process, we may sell:
. debt securities;
. preferred stock;
. depositary shares; and
. debt warrants
and the trusts may sell:
. capital securities (representing undivided beneficial interests in the
trusts) to the public; and
. common securities to us in one or more offerings.
The trusts will use the proceeds from sales of securities to buy a series of
our junior subordinated debt securities with terms that correspond to the
capital securities.
We:
. will pay principal and interest on our junior subordinated debt
securities, subject to the payment of our more senior debt;
. may choose to distribute our junior subordinated debt securities pro-rata
to the holders of the related capital securities and common securities if
we terminate a trust; and
. will fully and unconditionally guarantee the capital securities based on:
--our obligations to make payments on our junior subordinated debt
securities;
--our obligations under our guarantee (our payment obligations are
subject to payment on all of our general liabilities); and
--our obligations under the trust agreements.
This prospectus provides you with a general description of the capital
securities, the junior subordinated debt securities and the guarantee. The
description of the debt securities, the preferred stock, the depositary shares
and the debt warrants will be included in a separate prospectus in this
registration statement. Each time we sell capital securities, we will provide
an applicable prospectus supplement that will contain specific information
about the terms of that offering. The applicable prospectus supplement may also
add, update or change information in this prospectus. You should read this
prospectus and the applicable prospectus supplement together with the
additional information described under the heading "Where You Can Find More
Information."
The registration statement that contains this prospectus (including the
exhibits to the registration statement) has additional information about us and
about the trusts and the securities offered under this prospectus. That
registration statement can be read at the SEC web site or at the SEC offices
mentioned under the heading "Where You Can Find More Information."
The words "USB," "Company," "we," "our," "ours," and "us" refer to U.S.
Bancorp and its subsidiaries, unless otherwise stated. We have also defined
terms in the glossary section, at the back of this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document that we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public from the SEC's web site at http://www.sec.gov. Our SEC filings
are also available at the offices of the New York Stock Exchange. For further
information on obtaining copies of our public filings at the New York Stock
Exchange, you should call (212) 656-5060.
The SEC allows us to incorporate by reference the information we file with
them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by
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reference the following documents listed below and any future filings made with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, until we
or any underwriters sell all of the securities:
. Annual Report on Form 10-K for the year ended December 31, 1998;
. Quarterly Report on Form 10-Q for the quarter ended March 31, 1999; and
. Current Report on Form 8-K filed on January 20, 1999.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
U.S. Bancorp
601 Second Avenue South
Minneapolis, Minnesota 55402
Attn: Investor Relations Department
(612) 973-2263
The trusts have no separate financial statements. The statements would not
be material to holders of the capital securities because the trusts have no
independent operations.
You should rely only on the information incorporated by reference or
provided in this prospectus or any applicable prospectus supplement. We have
not authorized anyone else to provide you with different information. We are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
applicable prospectus supplement is accurate as of any date other than the date
on the front of those documents.
Unless otherwise indicated, currency amounts in this prospectus and in any
prospectus supplement are stated in U.S. dollars.
Notice to North Carolina purchasers: the Commissioner of Insurance of the
State of North Carolina has not approved or disapproved this offering nor has
the Commissioner determined if this prospectus is truthful or complete.
ABOUT U.S. BANCORP
We are a regional, multi-state bank holding company headquartered in
Minneapolis, Minnesota. We are registered under the Bank Holding Company Act,
and are subject to the supervision of, and regulation by, the Board of
Governors of the Federal Reserve System. We were formerly known as First Bank
System, Inc., and we are the organization created by the acquisition by First
Bank System, Inc. of U. S. Bancorp of Portland, Oregon. We are the 13th largest
U.S. bank holding company. We operate 4 banks and 11 trust companies having
approximately 1,000 banking offices in 17 Midwestern and Western states. We
offer full-service brokerage services at approximately 100 offices through our
wholly owned subsidiary. We also have various nonbank subsidiaries engaged in
financial services. At March 31, 1999, we had consolidated assets of $76
billion, consolidated deposits of $49 billion, and shareholders' equity of $6
billion.
Our banking subsidiaries are engaged in the general commercial banking
business, principally in domestic markets. They range in size from less than $1
million to $48 billion in deposits and provide a wide variety of services to
individuals, businesses, industry, institutional organizations, governmental
entities and other financial institutions. Depository services include checking
accounts, savings accounts and time certificates of deposit. Ancillary services
such as treasury management and receivable lockbox collection are provided for
corporate customers. Our banking and trust company subsidiaries provide a full
range of fiduciary activities for individuals, estates, foundations, business
corporations and charitable organizations.
We provide banking services through our subsidiary banks to both domestic
and foreign customers and correspondent banks. These services include consumer
banking, commercial lending, financing of import/export trade, foreign
exchange, and investment services. We provide, through our subsidiaries,
services in trust, commercial and agricultural finance, data processing,
leasing, and brokerage services.
On May 1, 1998, we completed our acquisition of Piper Jaffray Companies
Inc., a full-service investment banking and securities brokerage firm in a cash
transaction. The acquisition was accounted for as a purchase. On July 15, 1999,
we completed our acquisition of San Diego-based Bank of Commerce, one of the
largest U.S. Small Business Administration lenders. On May 19, 1999, we
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announced an agreement to acquire Newport Beach California-based Western
Bancorp. With $2.5 billion in assets at March 31, 1999, Western Bancorp has 31
branches in southern California in Los Angeles, Orange and San Diego counties.
The acquisition is pending regulatory and Western Bancorp shareholder
approvals, and is expected to close in the fourth quarter of 1999.
We were incorporated under Delaware law in 1929 and have functioned as a
multi-bank holding company since that time. Our principal executive offices are
located at 601 Second Avenue South, Minneapolis, Minnesota 55402-4302, and our
telephone number is (612) 973-1111.
If you would like to know more about us, see our documents incorporated by
reference in this prospectus as described under the section "Where You Can Find
More Information."
ABOUT THE TRUSTS
We created a number of trusts under Delaware law under separate trust
agreements established for each trust. A trust is a fiduciary relationship
where one person known as the trustee, holds some property for the benefit of
another person, in this case, the purchasers of the securities. For the
securities being sold, the trustees and us will enter into amended and restated
trust agreements that will be essentially in the form filed as an exhibit to
the registration statement, which will state the terms and conditions for each
trust to issue and sell the specific capital securities and common securities.
The trusts exist solely to:
. issue and sell capital securities and common securities;
. use the gross proceeds from the sale of the capital securities and common
securities to purchase corresponding series of our junior subordinated
debt securities;
. maintain their status as grantor trusts for federal income tax purposes;
and
. engage in other activities that are necessary or incidental to these
purposes.
We will purchase all of the common securities of each trust. The common
securities will represent an aggregate liquidation amount equal to at least 3%
of each trust's total capitalization. The capital securities will represent the
remaining 97% of each trust's total capitalization. The common securities will
have terms substantially identical to, and will rank equal in priority of
payment with, the capital securities. If we default on the corresponding junior
subordinated debt securities, then distributions on the common securities will
be subordinate to the preferred securities in priority of payment.
For each trust, as the direct or indirect holder of the common securities,
we have appointed five trustees to conduct each trust's business and affairs.
As holder of the common securities we (except in some circumstances) have the
power to:
. appoint the trustees;
. replace or remove the trustees; and
. increase or decrease the number of trustees.
This means that if you are dissatisfied with a trustee you will not be able
to remove the trustee without our assistance. Similarly, if we are dissatisfied
with a trustee we can remove the trustee even if you are satisfied with the
trustee.
The capital securities will be fully and unconditionally guaranteed by us as
described under "Description of the Guarantees."
The principal executive offices of each trust is c/o U.S. Bancorp, 601
Second Avenue South, Minneapolis, Minnesota 55402 and the telephone number is
(612)973-1111.
USE OF PROCEEDS
Each trust will use all the proceeds from the sale of the capital securities
to purchase our junior subordinated debt securities. Except as otherwise stated
in the applicable prospectus supplement, we intend to use the proceeds from the
sale of our junior subordinated debt securities (including corresponding junior
subordinated debt securities) for general corporate purposes, including:
. working capital;
. capital expenditures;
. investments in or loans to subsidiaries;
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. refinancing debt, including outstanding commercial paper and other short-
term bank indebtedness;
. redemption of shares of our outstanding common and preferred stock;
. other obligations as specified in the applicable prospectus supplement.
The applicable prospectus supplement provides more details on the use of
proceeds of any specific offering.
RATIOS OF EARNINGS TO FIXED CHARGES AND TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
The ratios of earnings to fixed charges and to combined fixed charges and
preferred stock dividends of USB for each of the periods indicated are as
follows:
<TABLE>
<CAPTION>
Three Months Year Ended December 31,
Ended ------------------------
March 31, 1999 1998 1997 1996 1995 1994
-------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits:..... 3.13 3.09 2.64 3.60 2.95 2.64
Including interest on deposits:..... 1.99 1.87 1.61 1.89 1.66 1.53
Ratios of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends:
Excluding interest on deposits:..... 3.13 3.09 2.58 3.46 2.83 2.47
Including interest on deposits:..... 1.99 1.87 1.60 1.86 1.64 1.50
</TABLE>
The ratio of earnings to fixed charges is computed by dividing income from
continuing operations before income taxes and fixed charges (excluding
capitalized interest), as adjusted for some equity method investments, by fixed
charges. Fixed charges consist of interest on debt (including capitalized
interest), amortization of debt discount, and expense and a portion of rentals
determined to be representative of interest. To compute the ratio of earnings
to combined fixed charges and preferred stock dividends, fixed charges is then
combined with preferred stock dividend requirements, adjusted to a pretax basis
on the outstanding preferred stock of USB.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
This section describes the general terms and provisions of the junior
subordinated debt securities that are offered by this prospectus. The
applicable prospectus supplement will describe the specific terms of the series
of the junior subordinated debt securities offered under that prospectus
supplement and any general terms outlined in this section that will not apply
to those junior subordinated debt securities.
The junior subordinated indenture will be qualified under the Trust
Indenture Act. A form of the junior subordinated indenture is filed as an
exhibit to the registration statement relating to this prospectus.
This section summarizes the material terms and provisions of the junior
subordinated indenture and the junior subordinated debt securities. Because
this is a summary, it does not contain all of the details found in the full
text of the junior subordinated indenture and the junior subordinated debt
securities. If you would like additional information, you should read the form
of junior subordinated indenture and the form of junior subordinated debt
securities.
General
We can issue the junior subordinated debt securities in one or more series.
A series of junior subordinated debt securities initially will be issued to a
trust in connection with a capital securities offering.
Unless otherwise described in the applicable prospectus supplement regarding
any offered junior subordinated debt securities, the junior subordinated debt
securities will rank equally with all other series of junior subordinated debt
securities, will be unsecured and will be subordinate and junior in
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priority of payment to all of our senior debt as described below under
"Subordination."
We are a non-operating holding company and almost all of our operating
assets are owned by our subsidiaries. We rely primarily on dividends from these
subsidiaries to meet our obligations. We are a legal entity separate and
distinct from our banking and non-banking affiliates. Our principal sources of
income are dividends, interest and fees from U.S. Bank National Association and
our other banking and non-banking affiliates. Our banking subsidiaries,
including U.S. Bank National Association, are subject to some restrictions
imposed by U.S. federal law on any extensions of credit to, and some other
transactions with us and some other affiliates, and on investments in stock or
other securities. These restrictions prevent us and our other affiliates from
borrowing from our banking subsidiaries unless the loans are secured by various
types of collateral. Further, these secured loans, other transactions and
investments by any of our banking subsidiaries are generally limited in amount
for us and each of our other affiliates to 10% of our banking subsidiaries'
capital and surplus, and as to us and all of our other affiliates to an
aggregate of 20% of our banking subsidiaries' capital and surplus. In addition,
payment of dividends by our banking subsidiaries to us are subject to ongoing
review by banking regulators and to various statutory limitations and in some
circumstances, requires approval by banking regulatory authorities. Because we
are a holding company, our right to participate in any distribution of assets
of any subsidiary at the liquidation or reorganization or otherwise of our
subsidiary is subject to the prior claims of creditors of the subsidiary,
unless we can be recognized as a creditor of that subsidiary. Accordingly, the
junior subordinated debt securities will be effectively subordinated to all
existing and future liabilities of our subsidiaries, and holders of junior
subordinated debt securities should look only to our assets for payments on the
junior subordinated debt securities.
The indenture does not limit the amount of junior subordinated debt
securities which we may issue, nor does it limit our issuance of any other
secured or unsecured debt.
We can issue the prior subordinated debt securities under an indenture or
officers' certificate supplemental to the indenture or a resolution of our
board of directors.
The applicable prospectus supplement will describe the following terms of
the junior subordinated debt securities:
. the title;
. any limit on the aggregate principal amount that may be issued;
. the date(s) on which the principal is payable or the method of
determining that date;
. the interest rate, if any, the interest payment dates, any rights we may
have to defer or extend an interest payment date, and the regular record
date for any interest payment or the method by which any of the foregoing
will be determined;
. the place(s) where payments shall be payable and where the junior
subordinated debt securities can be presented for registration of
transfer or exchange, and the place(s) where notices and demands to or on
us can be made;
. any period(s) within which or date(s) on which, price(s) at which and the
terms and conditions on which the junior subordinated debt securities can
be redeemed, in whole or in part, at our option or at the option of a
holder of the junior subordinated debt securities;
. our or any holder's obligation or right, if any, to redeem, purchase or
repay the junior subordinated debt securities and other related terms and
provisions;
. the denominations in which any junior subordinated debt securities will
be issued if other than denominations of $25 and any multiple integral of
$25;
. if other than in U.S. dollars, the currency in which the principal,
premium and interest, if any, that the junior subordinated debt
securities will be payable or denominated;
. any additions, modifications or deletions in the events of default or
covenants other than those specified in the indenture;
. the portion of the principal amount that will be payable at declaration
of acceleration of the maturity;
. any additions or changes to the indenture as will be necessary to
facilitate the issuance of a series of junior subordinated debt
securities
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in bearer form, registrable or not registrable for the principal, and with
or without interest coupons;
. the index or indices used to determine the amount of payments of
principal of and premium, if any, and how these amounts will be
determined;
. the terms and conditions under which temporary global securities are
exchanged for definitive junior subordinated debt securities of the same
series;
. whether the junior subordinated debt securities will be issued in global
form and, in that case, the terms and the depositary for these global
securities;
. the paying agent;
. the terms and conditions under which we or a holder may convert into or
exchange for the junior subordinated debt securities the capital
securities;
. the form of trust agreement and guarantee agreement;
. the relative degree, if any, to which the junior subordinated debt
securities shall be senior or subordinated to other junior subordinated
debt securities or any of our other indebtedness in right of payment; and
. any other terms of the junior subordinated debt securities consistent
with the provisions of the indenture.
Junior subordinated debt securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates. Some U.S. federal income
tax consequences and special considerations applicable to any the junior
subordinated debt securities will be described in the applicable prospectus
supplement.
The applicable prospectus supplement will describe the restrictions,
elections, some U.S. federal income tax consequences, and specific terms and
other information related to the junior subordinated debt securities if the
purchase price, principal, premium, or interest of any of the junior
subordinated debt securities is payable or denominated in one or more foreign
currencies or currency units.
If any index is used to determine the amount of payments of principal,
premium, or interest on any series of junior subordinated debt securities,
special U.S. federal income tax, accounting and other considerations applicable
to the junior subordinated debt securities will be described in the applicable
prospectus supplement.
Option to Extend Interest Payment Dates
If provided in the applicable prospectus supplement, we shall have the right
at any time and from time to time during the term of any series of junior
subordinated debt securities to defer payment of interest for a number of
consecutive interest payment periods as specified in the applicable prospectus
supplement (extension period).
Some U.S. federal income tax consequences and considerations applicable to
any junior subordinated debt securities that permit extension periods will be
described in the applicable prospectus supplement.
Redemption
Unless otherwise indicated in the applicable prospectus supplement, junior
subordinated debt securities will not be subject to any sinking fund.
Unless the applicable prospectus supplement indicates otherwise, we may, at
our option and subject to the receipt of prior approval by the Board of
Governors of the Federal Reserve System, if then required under applicable
capital guidelines or policies, redeem the junior subordinated debt securities
of any series:
. in whole at any time or in part from time to time; or
. upon the occurrence of a Tax Event, an Investment Company Event or a
Capital Treatment Event in whole (but not in part) at any time within 90
days of the occurrence of the Tax Event, the Investment Company Event or
Capital Treatment Event.
If the junior subordinated debt securities of any series are redeemable only
on or after a specified date or by the satisfaction of additional conditions,
the applicable prospectus supplement will specify the date or describe these
conditions.
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Junior subordinated debt securities in denominations larger than $25 can be
redeemed in part but only in multiples of $25. Unless the applicable prospectus
supplement indicates otherwise, junior subordinated debt securities will be
redeemed at the redemption price.
Tax Event means that either we or a trust will have received an opinion of
counsel (which may be our counsel or counsel of an affiliate but not an
employee and which must be reasonably acceptable to the property trustee)
experienced in tax matters stating that, as a result of any:
. amendment to, or change (including any announced prospective change) in,
the laws (or any regulations under those laws) of the United States or
any political subdivision or taxing authority affecting taxation; or
. interpretation or application of the laws, enumerated in the preceding
bullet point, or regulations by any court, governmental agency or
regulatory authority;
there is more than an insubstantial risk that:
--a trust is, or will be within 90 days of the date of the opinion of
counsel, subject to U.S. federal income tax on interest received on the
junior subordinated debt securities;
--interest payable by us to the trusts on the junior subordinated debt
securities is not, or will not be within 90 days of the date of the
opinion of counsel, deductible, in whole or in part, for U.S. federal
income tax purposes; or
--a trust is, or will be within 90 days of the date of the opinion of
counsel, subject to more than a minimal amount of other taxes, duties,
assessments or other governmental charges.
It has been reported that the IRS recently challenged another company's
deduction for interest paid on a debt instrument similar in some respects to
the junior subordinated debt securities and issued to entities similar to the
trusts. Based on available information, neither us nor the trusts believe that
this challenge will affect our ability to deduct interest payments on the
junior subordinated debt securities. However, you should be aware that further
developments favoring the IRS's challenge, or other unrelated developments,
could cause a Tax Event. Laws and regulations have also been proposed in the
past which, if adopted retroactively, could also cause a Tax Event.
An Investment Company Event means the receipt by us and a trust of an
opinion of counsel experienced in matters relating to investment companies to
the effect that, as a result of any:
. change in law or regulation; or
. change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority,
the trust is or will be considered an investment company that is required to be
registered under the Investment Company Act, which change becomes effective on
or after the original issuance of the capital securities.
A Capital Treatment Event means the reasonable determination by us that, as
a result of any:
. amendment to, or change (including any prospective change) in, laws or
any applicable regulation of the United States and any political
subdivision; or
. as a result of any official or administrative pronouncement or action or
judicial decision interpreting or applying the laws or regulations, which
amendment is effective or announced on or after the date of issuance the
capital securities,
there is more than an insubstantial risk of impairment of our ability to treat
the capital securities (or any substantial portion) as Tier 1 capital (or its
equivalent) for purposes of the capital adequacy guidelines of the Federal
Reserve, in effect and applicable to us.
Notice of any redemption will be mailed at least 30 days and not more than
60 days before the redemption date to each holder of redeemable junior
subordinated debt securities, at its registered address. Unless we default in
the payment of the redemption price, on or after the redemption date, interest
will cease to accrue on the junior subordinated debt securities or portions
called for redemption.
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Restrictions on Some Payments
We agreed that we will not permit any of our subsidiaries to:
. declare or pay any dividends or distributions, or redeem, purchase,
acquire, or make a liquidation payment on any of our capital stock;
. make any payment of principal of interest or premium, if any, on or
repay, repurchase or redeem any of our debt securities (including other
junior subordinated debt securities) that rank equally with or junior in
interest to the junior subordinated debt securities; or
. make any guarantee payments on any guarantee of debt securities of any of
our subsidiaries (including under other guarantees) if the guarantee
ranks equally with or junior in interest to the junior subordinated debt
securities, except in some circumstances, if at that time:
--We have actual knowledge of an event that with the giving of notice or
the lapse of time, or both, would constitute an event of default under
the indenture and we will not have taken reasonable steps to cure the
event of default;
--The junior subordinated debt securities are held by a trust that is the
issuer of a series of related capital securities and we are in default
on our payment obligations under the guarantee relating to those related
capital securities; or
--We have given notice of our selection of an extension period on the
junior subordinated debt securities of a series and we have not
rescinded the notice, or extension period, or any extension relating to
the junior subordinated debt securities shall be continuing.
Modification of Indenture
We may and the trustee may change the indenture without your consent for
specified purposes, including:
. to fix any ambiguity, defect or inconsistency, provided that the change
does not materially adversely affect the interest of any holder of any
series of junior subordinated debt securities or, in the case of
corresponding junior subordinated debt securities, the interest of a
holder of any related capital securities so long as they remain
outstanding; and
. to qualify or maintain the qualification of the indenture under the Trust
Indenture Act.
In addition, under the indenture, we may and the trustee may modify the
indenture to affect the rights of the holders of the series of the junior
subordinated debt securities, with the consent of the holders of a majority in
principal amount of the outstanding series of junior subordinated debt
securities that are affected. However, we cannot and the trustee cannot take
the following actions without the consent of each holder of the outstanding
junior subordinated debt securities affected:
. change the maturity date of any series of junior subordinated debt
securities (except as otherwise specified in the applicable prospectus
supplement), or reduce the principal amount, rate of interest, or extend
the time of payment of interest;
. reduce the percentage in principal amount of junior subordinated debt
securities of any series, necessary to modify the indenture;
. modify some provisions of the indenture relating to modification or
waiver, except to increase the required percentage;
. modify the provisions of the junior subordinated debt securities of any
series in a manner adverse to the holders, provided that, in the case of
corresponding junior subordinated debt securities, as long as any of the
related capital securities are outstanding, no modification will be made
that adversely affects the holders of these capital securities in any
material respect. Also the indenture cannot be terminated, and a waiver
of any debt securities event of default or compliance with any covenant
under the indenture cannot be effective, without the prior consent of the
holders of a majority of the liquidation preference of the related
capital securities unless and until the principal of the corresponding
junior subordinated debt securities and all accrued and unpaid interest
have been paid in full and some other conditions are satisfied.
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In addition, we may and the trustee may execute any supplemental indenture
to create any new series of junior subordinated debt securities, without the
consent of any holders.
Events of Default
The following are events of defaults under the indenture:
. failure to pay interest, when due under the terms of the series of junior
subordinated debt securities, and that failure continues for 30 days and
the time for payment has not been extended or deferred;
. failure to pay any principal of or premium on the series of junior
subordinated debt securities when due, whether at maturity, redemption by
declaration or otherwise;
. failure to observe or perform in any material respect, any other covenant
contained in the indenture, and that failure continues for 90 days after
we receive written notice from the trustee or holders of at least 25% in
principal amount of the outstanding series of junior subordinated debt
securities; or
. some events of bankruptcy, insolvency or reorganization.
The holders of a majority in aggregate outstanding principal amount of any
series of junior subordinated debt securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee. If an event of default under the indenture of any series occurs
and is continuing, the junior subordinated trustee or the holders of at least
25% in aggregate principal amount of the outstanding junior subordinated debt
securities can declare the unpaid principal and accrued interest, if any, to
the date of acceleration on all the outstanding junior subordinated debt
securities of that series to be due and payable immediately. Similarly, in the
case of corresponding junior subordinated debt securities, if the trustee or
holders of the corresponding junior subordinated debt securities fail to make
this declaration, the holders of at least 25% in aggregate liquidation
preference of the related capital securities will have that right.
The holders of a majority in aggregate outstanding principal of the series
of junior subordinated debt securities can rescind a declaration of
acceleration and waive the default if the default (other than the non-payment
of principal which has become due solely by acceleration) has been cured and a
sum sufficient to pay all principal and interest due (other than by
acceleration) has been deposited with the trustee. In the case of corresponding
junior subordinated debt securities, if the holders of the corresponding junior
subordinated debt securities fail to rescind a declaration and waive the
default, the holders of a majority in aggregate liquidation preference of the
related capital securities will have that right.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debt securities of any affected series may, on behalf of
holders of all of the junior subordinated debt securities, waive any past
default, except:
. a default in the payment of principal or interest (unless the default has
been cured or a sum sufficient to pay all matured installments of
principal and interest has been deposited with the trustee); or
. a default in a covenant or provision of the indenture which cannot be
modified or amended without the consent of the holders of each
outstanding junior subordinated debt securities.
In the case of corresponding junior subordinated debt securities, if the
holders of the corresponding junior subordinated debt securities fail to
rescind a declaration and waive the default, the holders of a majority in
liquidation preference of the related capital securities will have that right.
We are required to file annually, with the trustee, a certificate stating
whether or not we are in compliance with all the conditions and covenants
applicable to us under the junior subordinated indenture.
If an event of default occurs and is continuing on a series of corresponding
junior subordinated debt securities, the property trustee will have the right
to declare the principal, of, and the interest on the corresponding junior
subordinated debt securities, and any amounts payable under the indenture, to
be immediately due and payable, and to enforce its other rights as a creditor
for these corresponding junior subordinated debt securities.
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Enforcement of Some Rights by Holders of Capital Securities
If an event of default under the indenture has occurred and is continuing,
and this event can be attributable to our failure to pay interest or principal
on the related junior subordinated debt securities when due, you may institute
a legal proceeding directly against us to enforce the payment of the principal
of or interest on those subordinated debt securities having a principal amount
equal to the liquidation amount of your related capital securities. We cannot
amend the indenture to remove the right to bring a direct action, without the
written consent of holders of all capital securities. If the right to bring a
direct action is removed, the applicable trust may become subject to reporting
obligations under the Exchange Act. We shall have the right under the indenture
to set-off any payment made to you in connection with the direct action.
You would not be able to exercise directly any remedy other than those
stated in the preceding paragraph which are available to the holders of the
junior subordinated debt securities unless there has been an event of default
under the trust agreement. See "Description of Capital Securities--Events of
Default; Notice."
If an event of default under the indenture shall occur and be continuing as
to a series of corresponding junior subordinated debt securities, the property
trustee will have the right to declare the principal of and interest on those
corresponding junior subordinated debt securities to be due and payable, and to
enforce any other rights as a creditor as it relates to those junior
subordinated debt securities.
Consolidation, Merger, Sale of Assets and Other Transactions
The indenture states that we cannot consolidate with or merge into any other
person or convey, transfer or lease our properties and assets substantially as
an entirety to any person, and no person will consolidate with or merge into us
or convey, transfer or lease its properties and assets substantially as an
entirety to us, unless:
. the successor is organized under the laws of the United States or any
state or the District of Columbia, and expressly assumes all of our
obligations under the indenture;
. immediately after the transaction, no event of default, and no event
which, after notice or lapse of time or both, would become an event of
default, shall have occurred and be continuing;
. this transaction is permitted under the related trust agreement and the
related guarantee and does not give rise to any breach or violation of
the related trust agreement or the related guarantee; and
. some other conditions prescribed in the indenture are met.
The general provisions of the indenture do not afford protection to the
holders of the junior subordinated debt securities in the event of a highly
leveraged or other transaction involving us that may adversely affect the
holders.
Satisfaction and Discharge
The indenture provides that when all junior subordinated debt securities not
previously delivered to the trustee for cancellation:
. have become due and payable; or
. will become due and payable within one year, and
--we deposit with the trustee money sufficient to pay and discharge the
entire indebtedness on the junior subordinated debt securities;
--we deliver to the trustee officers' certificates and opinions of
counsel; and
--we comply with some other requirements under the indenture,
then the indenture will cease to be of further effect and we will be
considered to have satisfied and discharged the indenture.
Conversion or Exchange
If indicated in the applicable prospectus supplement, the junior
subordinated debt securities of any series may be convertible or exchangeable
into capital securities or other securities. The applicable prospectus
supplement will describe the specific terms on which the junior subordinated
debt securities of any series may be so converted or exchanged. The terms may
include provisions for
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conversion or exchange, either mandatory, at the option of the holder, or at
our option, in which case the number of shares of capital securities or other
securities to be received by the holders of junior subordinated debt securities
would be calculated as of a time and in the manner stated in the applicable
prospectus supplement.
Subordination
The indenture provides that any junior subordinated debt securities will be
subordinate and junior in right of payment to all senior debt.
Upon any payment or distribution of assets to creditors upon our
liquidation, dissolution, winding up, reorganization, whether voluntary or
involuntary, assignment for the benefit of creditors, marshaling of assets or
any bankruptcy, insolvency, debt restructuring or similar proceedings, the
holders of senior debt will first be entitled to receive payment in full of the
principal, premium, or interest due before the holders of junior subordinated
debt securities or, in the case of corresponding junior subordinated debt
securities, the property trustee, on behalf of the holders, will be entitled to
receive any payment or distribution.
In the event of the acceleration of the maturity of any junior subordinated
debt securities, the holders of all senior debt outstanding at the time of the
acceleration will first be entitled to receive payment in full of all amounts
due on the senior debt (including any amounts due upon acceleration) before the
holders of junior subordinated debt securities.
No payment, by or on our behalf, of principal, premium, if any, or interest,
on the junior subordinated debt securities shall be made if at the time of the
payment, there exists:
. a default in any payment on any senior debt, or any other default under
which the maturity of any senior debt has been accelerated; and
. any judicial proceeding relating to the defaults which shall be pending.
Debt means, for any person, whether recourse is to all or a portion of the
assets of the person and whether or not contingent:
. every obligation of the person for money borrowed;
. every obligation of the person evidenced by bonds, debt securities, notes
or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
. every reimbursement obligation of the person regarding letters of credit,
bankers' acceptances or similar facilities issued for the account of the
person;
. every obligation of the person issued or assumed as the deferred purchase
price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business);
. every capital lease obligation of the person;
. all indebtedness of the person whether incurred on, before, or after the
date of the indenture, for claims relating to derivative products
including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; and
. every obligation of the type referred to in the first through the sixth
bullet points above of another person and all dividends of another person
the payment of which, in either case, the person has guaranteed or is
responsible or liable, directly or indirectly, as obligor or otherwise.
Senior Debt means the principal of, premium, if any, and interest, if any
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to us whether or not the claim for
post-petition interest is allowed in the proceeding), on our Debt whether
incurred on, before or subsequent to the date of the indenture, unless, in the
instrument creating or evidencing the Debt or under which the Debt is
outstanding, it is provided that the obligations are not superior in right of
payment to the junior subordinated debt securities or to other Debt which ranks
equally with, or subordinated to the junior subordinated debt securities.
However, Senior Debt shall not include:
. any of our Debt which, when incurred and without regard to any election
under section 1111(b) of the Bankruptcy Code, was without recourse to us;
. any of our Debt to any of our banking subsidiaries;
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. Debt to any of our employees; and
. any other debt securities issued under our indenture.
We are a non-operating holding company and almost all of our operating
assets are owned by our subsidiaries. We rely primarily on dividends from our
subsidiaries to meet our obligations to pay the principal of and interest on
our outstanding debt obligations and corporate expenses. We are a legal entity
separate and distinct from our banking and non-banking affiliates. Our
principal sources of income are dividends, interest and fees from U.S. Bank
National Association and our other banking and non-banking affiliates. Our
banking subsidiaries are subject to some restrictions imposed by federal law on
any extensions of credit to, and some other transactions with, us and some
other affiliates, and on investments in stock or other securities. These
restrictions prevent us and our other affiliates from borrowing from our
banking subsidiaries unless the loans are secured by various types of
collateral. Further, these secured loans, other transactions and investments by
any of our banking subsidiaries are generally limited in amount for us and each
of our other affiliates to 10% of our banking subsidiaries' capital and
surplus, and as to us and all of our other affiliates to an aggregate of 20% of
our banking subsidiaries' capital and surplus. In addition, payment of
dividends by our banking subsidiaries to us are subject to ongoing review by
banking regulators and to various statutory limitations and in some
circumstances requires approval by banking regulatory authorities. Because we
are a holding company, our right to participate in any distribution of assets
of any subsidiary upon the liquidation or reorganization or otherwise of our
subsidiary is subject to the prior claims of creditors of the subsidiary,
unless we can be recognized as a creditor of that subsidiary. Accordingly, the
junior subordinated debt securities will be effectively subordinated to all
existing and future liabilities of our banking subsidiaries, and holders of
junior subordinated debt securities should look only to our assets for payments
on the junior subordinated debt securities.
The indenture places 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.
The indenture provides that these subordination provisions, as they relate
to any particular issue of junior subordinated debt securities, may be changed
before the issuance. The applicable prospectus supplement will describe any of
these changes.
Denominations, Registration and Transfer
Unless the applicable prospectus supplement specifies otherwise, we will
issue the junior subordinated debt securities in registered form only, without
coupons and, in denominations of $25 and any integral multiples of $25. Holders
can exchange junior subordinated debt securities of any series for other junior
subordinated debt securities:
. of the same issue and series;
. in any authorized denominations;
. in a like principal amount;
. of the same date of issuance and maturity; and
. bearing the same interest rate.
Subject to the terms of the indenture and the limitations applicable to
global securities stated in the applicable prospectus supplement, junior
subordinated debt securities will be presented for exchange or for registration
of transfer (duly endorsed or with the form of transfer duly endorsed, or a
satisfactory written instrument of transfer, duly executed) at the office of
the security registrar or at the office of any transfer agent designated by us
for that purpose.
Unless otherwise provided in the applicable prospectus supplement, no
service charge will be made for any registration of transfer or exchange, and
on payment of any taxes or other governmental charges. We have appointed the
trustee as security registrar for the junior subordinated debt securities. Any
transfer agent (in addition to the security registrar) initially designated by
us for any junior subordinated debt securities will be named in the applicable
prospectus supplement. We may at any time designate additional transfer agents
or rescind the designation of any 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 the junior
subordinated debt securities of each series.
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If the junior subordinated debt securities of any series are to be redeemed,
neither the trustee nor us will be required to:
. issue, register the transfer of, or exchange any junior subordinated debt
securities of any series during a period beginning on the business day
that is 15 days before the day of mailing of a notice of redemption of
any junior subordinated debt securities that is selected for redemption
and ending at the close of business on the day of mailing of the relevant
notice; or
. transfer or exchange any junior subordinated debt securities selected for
redemption, except, the unredeemed portion of any junior subordinated
debt securities being redeemed in part.
Global Junior Subordinated Debt Securities
We may issue, in whole or in part, the junior subordinated debt securities
of a series in the form of one or more global junior subordinated debt
securities that will be deposited with, or on behalf of, a depositary
identified in the applicable prospectus supplement relating to those series.
The specific terms of the depositary arrangements for a series of junior
subordinated debt securities will be described in the applicable prospectus
supplement. See "Book-Entry Issuance."
Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, payment
of principal of and any premium and interest on junior subordinated debt
securities will be made at the office of the trustee in the City of New York or
at the office of the paying agent(s) designated by us, from time to time, in
the applicable prospectus supplement. However, we may make interest payment by:
. check mailed to the address of the person entitled to it at the address
appearing in the securities register (except in the case of global junior
subordinated debt securities); or
. transfer to an account maintained by the person entitled to it as
specified in the securities register, so long as we receive proper
transfer instructions by the regular record date.
Unless otherwise indicated in the applicable prospectus supplement, payment
of the interest on junior subordinated debt securities on any interest payment
date will be made to the person in whose name the junior subordinated debt
securities are registered at the close of business on the regular record date
relating to the interest payment date, except in the case of defaulted
interest.
We may at any time designate additional paying agents or cancel the
designation of any paying agent. We will at all times be required to maintain a
paying agent in each place of payment for each series of junior subordinated
debt securities.
Any money deposited with the trustee or any paying agent, or held by us in
trust, for the payment of the principal of and any premium or interest on any
junior subordinated debt securities that remains unclaimed for two years after
the principal, any premium or interest has become due and payable will, at our
request, be repaid to us and the holder of the junior subordinated debt
securities can then only look to us for payment.
Governing Law
The indenture and the junior subordinated debt securities are governed and
construed under the laws of the State of New York.
Information About the Trustee
The Trust Indenture Act describes the duties and responsibilities of the
trustee. Subject to the provisions under the Trust Indenture Act, the trustee
has no obligation to exercise any of the powers vested in it by the indenture,
at the request of any holder of junior subordinated debt securities, unless the
holder offers reasonable indemnity against the costs, expenses and liabilities
that are incurred. The trustee is not required to expend or risk its own funds
or otherwise incur personal financial liability in the performance of its
duties if it reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
Corresponding Junior Subordinated Debt Securities
The corresponding junior subordinated debt securities are issued in one or
more series of junior subordinated debt securities under the indenture with
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terms corresponding to the terms of a series of related capital securities.
Concurrently with the issuance of each trust's capital securities, the trust
will invest the proceeds and the consideration paid by us for the related
common securities in a series of corresponding junior subordinated debt
securities. Each series of corresponding junior subordinated debt securities
will be in the principal amount equal to the aggregate stated liquidation
amount of the related capital securities and the common securities of the
trust and will rank equally with all other series of junior subordinated debt
securities. As a holder of the related capital securities for a series of
corresponding junior subordinated debt securities, you will have rights in
connection with modifications to the indenture or at the occurrence of events
of default under the indenture described under "--Modification of Indenture"
and "--Events of Default," unless provided otherwise in the applicable
prospectus supplement for these related capital securities.
Unless otherwise specified in the applicable prospectus supplement, if a
Tax Event relating to a trust of related capital securities occurs and is
continuing, we have the option, and subject to prior approval by the Federal
Reserve (if required at the time under applicable capital guidelines or
policies), to redeem the corresponding junior subordinated debt securities at
any time within 90 days of the occurrence of the Tax Event, in whole but not
in part, at the redemption price. As long as the applicable trust is the
holder of all outstanding series of corresponding junior subordinated debt
securities, the trust will use the proceeds of the redemption to redeem the
corresponding capital securities and common securities in accordance with
their terms. We may not redeem a series of corresponding junior subordinated
debt securities in part, unless all accrued and unpaid interest has been paid
in full on all outstanding corresponding junior subordinated debt securities
of the applicable series.
We will covenant in the indenture that if and as long as:
. the trust of the related series of capital securities and common
securities is the holder of all the corresponding junior subordinated
debt securities;
. a Tax Event related to the trust has occurred and is continuing; and
. we have elected, and have not revoked our election to pay Additional Sums
for the capital securities and common securities,
we will pay to the trust the Additional Sums.
We will also covenant, as to each series of corresponding junior
subordinated debt securities:
. to maintain directly or indirectly 100% ownership of the common
securities of the trust to which corresponding junior subordinated debt
securities have been issued, provided that some successors which are
permitted under the indenture, may succeed to our ownership of the common
securities;
. not to voluntarily terminate, wind-up or liquidate any trust, except:
--with prior approval of the Federal Reserve if then so required under
applicable capital guidelines or policies of the Federal Reserve; and
--in connection with a distribution of corresponding junior subordinated
debt securities to the holders of the capital securities in liquidation
of a trust, or in connection with some mergers, consolidations or
amalgamations permitted by the related trust agreement; and
. to use our reasonable efforts, consistent with the terms and provisions
of the related trust agreement, to cause the trust to remain classified
as a grantor trust and not as an association taxable as a corporation for
United States federal income tax purposes.
DESCRIPTION OF CAPITAL SECURITIES
General
This section describes the general terms and provisions of the capital
securities that are offered by this prospectus. The applicable prospectus
supplement will describe the specific terms of the series of the capital
securities offered under that prospectus supplement and any general terms
outlined in this section that will not apply to those capital securities.
The capital securities will be issued under the trust agreement. The trust
agreement will be
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qualified as an indenture under the Trust Indenture Act. The forms of trust
agreement and capital securities have been filed as an exhibit to the
registration statement.
The capital securities will have the terms described in the applicable trust
agreement or made part of the trust agreement by the Trust Indenture Act or the
Delaware Business Trust Act. The terms of the capital securities will mirror
the terms of the junior subordinated debt securities held by each trust.
This section summarizes the material terms and provisions of the trust
agreement and the capital securities. Because this is only a summary, it does
not contain all of the details found in the full text of the trust agreement
and the capital securities. If you would like additional information you should
read the form of trust agreement and the form of capital securities.
The trust agreement of each trust authorizes the administrative trustees to
issue on behalf of each trust one series of capital securities and one series
of common securities containing the terms described in the applicable
prospectus supplement. The proceeds from the sale of the capital securities and
common securities will be used by each trust to purchase a series of junior
subordinated debt securities from us. The junior subordinated debt securities
will be held in trust by the property trustee for your benefit and the benefit
of the holder of the common securities.
Under the guarantee, we will agree to make payments of distributions and
payments on redemption or liquidation of the capital securities, to the extent
that the related trust holds funds available for this purpose and has not made
such payments. See "Description of the Guarantee."
The assets of each trust available for distribution to you will be limited
to payments received from us under the corresponding junior subordinated debt
securities. If we fail to make a payment on the corresponding junior
subordinated debt securities, the property trustee will not have sufficient
funds to make related payments, including distributions, on the capital
securities.
Each guarantee, when taken together with our obligations under the
corresponding junior subordinated debt securities and the indenture, the
applicable trust agreement and the expense agreement, will provide a full and
unconditional guarantee of amounts due on the capital securities issued by each
trust.
Each trust will redeem an amount of capital securities equal to the amount
of any corresponding junior subordinated debt securities redeemed.
Specific terms relating to the capital securities will be described in the
applicable prospectus supplement, including:
. the name of the capital securities;
. the dollar amount and number of capital securities issued;
. the annual distribution rate(s) (or method of determining this rate(s)),
the payment date(s) and the record dates used to determine the holders
who are to receive distributions;
. the date from which distributions shall be cumulative;
. the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions for which the capital securities
shall be purchased or redeemed, in whole or in part;
. the terms and conditions, if any, under which the junior subordinated
debt securities are distributed to you by the trusts;
. any securities exchange on which the capital securities are listed;
. whether the capital securities are to be issued in book-entry form and
represented by one or more global certificates, and if so, the depositary
for the global certificates and the specific terms of the depositary
arrangements; and
. any other relevant rights, preferences, privileges, limitations or
restrictions of the capital securities.
The applicable prospectus supplement will also describe some U.S. federal
income tax considerations applicable to any offering of capital securities.
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Redemption or Exchange
Mandatory Redemption. If any corresponding junior subordinated debt
securities are repaid or redeemed in whole or in part, whether at maturity or
upon earlier redemption, the property trustee will use the proceeds from this
repayment or redemption to redeem a Like Amount of the capital securities and
common securities. The property trustee will give you at least 30 days notice,
but not more than 60 days notice, before the date of redemption. The capital
securities and (unless there is a default under the junior subordinated debt
securities) the common securities will be redeemed at the redemption price at
the concurrent redemption of the corresponding junior subordinated debt
securities. See "Description of the Junior Subordinated Debt Securities--
Redemption."
If less than all of any series of corresponding junior subordinated debt
securities are to be repaid or redeemed on a date of redemption, then the
proceeds from the repayment or redemption shall be allocated, pro rata, to the
redemption of the related capital securities and the common securities.
We may redeem any series of corresponding junior subordinated debt
securities:
. on or after the date as specified in the applicable prospectus
supplement, in whole at any time or in part from time to time;
. at any time, in whole (but not in part), on the occurrence of a Tax
Event, an Investment Company Event or a Capital Treatment; or
. as is otherwise specified in the applicable prospectus supplement.
Distribution of Corresponding Junior Subordinated Debt Securities. We may at
any time terminate any trust and, after satisfaction of the liabilities of
creditors of the trust as provided by applicable law, cause the corresponding
junior subordinated debt securities relating to the capital securities and
common securities issued by the trust to be distributed to you and the holders
of the common securities in liquidation of the trust.
Tax Event, Investment Company Event Redemption or Capital Treatment
Event. If a Tax Event, Investment Company Event or Capital Treatment Event
relating to a series of capital securities and common securities shall occur
and be continuing, we may redeem the corresponding junior subordinated debt
securities in whole, but not in part. This will cause a mandatory redemption of
all of the related capital securities and common securities at the redemption
price within 90 days following the occurrence of the Tax Event, Investment
Company Event or Capital Treatment Event.
If a Tax Event, Investment Company Event or Capital Treatment Event relating
to a series of capital securities and common securities occurs and is
continuing and we elect not to redeem the corresponding junior subordinated
debt securities or to terminate the related trust and cause the corresponding
junior subordinated debt securities to be distributed to holders of the capital
securities and common securities as described above, those capital securities
and common securities will remain outstanding and Additional Sums may be
payable on the corresponding junior subordinated debt securities.
Additional Sums means the additional amounts required to be paid so that the
amount of distributions due and payable by a trust on outstanding capital
securities and common securities shall not be reduced because of any additional
taxes, duties and other governmental charges to which a trust is subject
because of a Tax Event.
Like Amount means:
. for a redemption of any series of capital securities and common
securities, capital securities and common securities of the series having
a Liquidation Amount equal to that portion of the principal amount of
corresponding junior subordinated debt securities to be contemporaneously
redeemed. The Like Amount will be allocated to the common securities and
to the capital securities based upon their relative Liquidation Amounts.
The proceeds will be used to pay the redemption price of the capital
securities and common securities; and
. for a distribution of corresponding junior subordinated debt securities
to holders of any series of capital securities and common securities,
corresponding junior subordinated
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debt securities having a principal amount equal to the Liquidation Amount
of the related capital securities and common securities.
Liquidation Amount means, unless otherwise provided in the applicable
prospectus supplement, $25 per capital security and common security.
Once the liquidation date is fixed for any distribution of corresponding
junior subordinated debt securities for any series of capital securities:
. the series of capital securities will no longer be deemed to be
outstanding;
. The DTC, or its nominee, as the record holder of the series of capital
securities, will receive a registered global certificate or certificates
representing the corresponding junior subordinated debt securities to be
delivered upon the distribution; and
. certificates representing the series of capital securities not held by
DTC or its nominee will be deemed to represent the corresponding junior
subordinated debt securities. Those certificates will bear accrued and
unpaid interest in an amount equal to the accrued and unpaid
distributions on the series of capital securities until the certificates
are presented to the administrative trustees of the applicable trust or
their agent for transfer or reissuance.
We cannot assure you of the market prices for the capital securities or the
corresponding junior subordinated debt securities. Accordingly, the capital
securities that you may purchase, or the corresponding junior subordinated debt
securities that you may receive on dissolution and liquidation of a trust, may
trade at a discount of the price that you paid for the capital securities.
Redemption Procedures
Capital securities redeemed on date of redemption shall be:
. redeemed at the redemption price with the applicable proceeds from the
contemporaneous redemption of the corresponding junior subordinated debt
securities; and
. payable on each date of redemption only to the extent that the related
trust has funds on hand available for the payment of the redemption
price.
If notice of redemption is given, then, by 12:00 noon, New York City time,
on the date of redemption, to the extent funds are available, the property
trustee will deposit irrevocably with DTC funds sufficient to pay the
applicable redemption price and will give DTC irrevocable instructions and
authority to pay the redemption price to you. See Book-Entry Issuance. If the
capital securities are no longer in book-entry form, the property trustee, to
the extent funds are available, will irrevocably deposit with the paying agent
for the capital securities, funds sufficient to pay the applicable redemption
price and will give the paying agent irrevocable instructions and authority to
pay the redemption price to you when you surrender your certificates evidencing
the capital securities.
Distributions payable on or before the date of redemption for any capital
securities called for redemption shall be payable to the holders on the
relevant record dates for the related distribution dates.
If notice of redemption is given and funds deposited as required, all of
your rights will cease, except your right to receive the redemption price, and
the capital securities will cease to be outstanding.
If a date of redemption is not a business day, then payment of the
redemption price payable on the date of redemption will be made on the next
succeeding day which is a business day (and without any interest or other
payment for any delay). However, if the business day falls in the next calendar
year, then payment will be made on the immediately preceding business day.
If payment of the redemption price of the capital securities called for
redemption is improperly withheld or refused and not paid either by the trust
or by us under the guarantee, then distributions on the capital securities will
continue to accrue at the then applicable rate from the date of redemption to
the date that the redemption price is actually paid. In this case the actual
payment date will be the date of redemption for purposes of calculating the
redemption price.
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Subject to applicable law (including, without limitation, federal securities
law), our subsidiaries or us may at any time and from time to time purchase
outstanding capital securities by tender offer, in the open market or by
private agreement.
Payment of the redemption price on the capital securities and any
distribution of corresponding junior subordinated debt securities to holders of
capital securities shall be payable to the holders on the relevant record date
as they appear on the register of capital securities. The record date shall be
one business day before the relevant date of redemption or liquidation date as
applicable. However, if the capital securities are not in book-entry form, the
relevant record date for the capital securities shall be at least 15 days
before the date of redemption or liquidation date.
If less than all of the capital securities and common securities issued by a
trust are to be redeemed on a redemption date, then the aggregate Liquidation
Amount of the capital securities and common securities to be redeemed shall be
allocated pro rata to the capital securities and the common securities based
upon the relative Liquidation Amounts of such classes. The property trustee
will select the capital securities to be redeemed on a pro rata basis not more
than 60 days before the date of redemption, by a method deemed fair and
appropriate by it. The property trustee will promptly notify the registrar in
writing of the capital securities selected for redemption and, in the case of
any capital securities selected for partial redemption, the Liquidation Amount
to be redeemed.
You will receive notice of any redemption at least 30 days but not more than
60 days before the date of redemption at your registered address. Unless we
default in the payment of the redemption price on the corresponding junior
subordinated debt securities, on and after the date of redemption, interest
will cease to accrue on the junior subordinated debt securities or portions of
the junior subordinated debt securities (and distributions will cease to accrue
on the related capital securities or portions of the capital securities) called
for redemption.
Subordination of Common Securities
Payment of distributions on, and the redemption price of, each trust's
capital securities and common securities, will be made pro rata based on the
liquidation amount of the capital securities and common securities. However, if
an event of default under the indenture shall have occurred and is continuing,
no payment may be made on any of the trust's common securities, unless all
unpaid amounts on each of the trust's outstanding capital securities shall have
been made or provided for in full.
If an event of default under the indenture has occurred and is continuing,
we, as holder of the trust's common securities, will be deemed to have waived
any right to act on the event of default under the applicable trust agreement
until the effect of all events of default relating to the capital securities
have been cured, waived or otherwise eliminated. Until the events of default
under the applicable trust agreement relating to the capital securities have
been so cured, waived or otherwise eliminated, the property trustee will act
solely on your behalf and not on our behalf as holder of the trust's common
securities, and only you and the other holders of capital securities will have
the right to direct the property trustee to act on your behalf.
Liquidation Distribution Upon Termination
Each trust agreement states that each trust shall be automatically
terminated upon the expiration of the term of the trust and shall also be
terminated on the first to occur of:
. our bankruptcy, dissolution or liquidation;
. the distribution of a Like Amount of the junior subordinated debt
securities directly to the holders of the capital securities and common
securities. For this distribution, we must give at least 30 days written
notice to the trustees;
. the redemption of all of the capital securities and common securities of
a trust; and
. a court order for the dissolution of a trust is entered.
If dissolution of a trust occurs as described in the first, second and
fourth bullets above, the applicable trustee shall liquidate the trust as
quickly as possible. After paying all amounts owed to creditors, the trustee
will distribute to the holders of
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the capital securities and the common securities either:
. a Like Amount of junior subordinated debt securities; or
. if the distribution of the junior subordinated debt securities is
determined by the property trustee not to be practical, cash assets equal
to the aggregate Liquidation Amount per capital security and common
security specified in an accompanying prospectus supplement, plus
accumulated and unpaid distributions from that date to the date of
payment.
If a trust cannot pay the full amount due on its capital securities and
common securities because insufficient assets are available for payment, then
the amounts payable by the trust on its capital securities and common
securities shall be paid pro rata. However, if an event of default under the
indenture has occurred and is continuing, the total amounts due on the capital
securities shall be paid before any distribution on the common securities.
Events of Default; Notice
The following are events of default under the trust agreement:
. the occurrence of an event of default under the indenture;
. failure by the property trustee to pay any distribution when due and the
failure continues for 30 days;
. failure by the property trustee to pay any redemption price when due;
. failure to perform in any material respect, any other covenant or
warranty by the trustees in a trust agreement for a period of 60 days
after the defaulting trustee receives notice from holders of at least 25%
in aggregate principal amount of the outstanding capital securities; or
. some events of bankruptcy or insolvency regarding the property trustee,
and our failure to appoint a successor property trustee within 60 days of
the bankruptcy or insolvency.
Within five business days after an event of default under the trust
agreement known to the property trustee, the property trustee will notify you
and the holders of the common securities, the administrative trustees and us,
unless the event of default has been cured or waived.
The administrative trustees and us must file annually with the property
trustee a certificate stating whether or not they are in compliance with all
the applicable conditions and covenants under the applicable trust agreement.
If the property trustee fails to enforce its rights under any trust
agreement or the indenture to the fullest extent permitted by law, and subject
to the terms of the trust agreement and the indenture, you may sue us, or seek
other remedies, to enforce the property trustee's rights under the trust
agreement or the indenture relating to junior subordinated debt securities
having a principal amount equal to the Liquidation Amount of your capital
securities without first instituting a legal proceeding against the property
trustee or any other person.
If any action under the indenture is entitled to be taken by the holders of
at least a specified percentage of the principal amount of the junior
subordinated debt securities, holders of the same percentage of the Liquidation
Amount of capital securities may then take action if it is not taken by the
property trustee. However, if we fail to pay principal, premium or interest on
the junior subordinated debt securities, you may sue us, or seek other
remedies, to collect your pro rata share of payments owed.
Removal of Trustees
Unless an event of default under a trust agreement has occurred and is
continuing, we can remove and replace any trustee at anytime. If an event of
default under a trust agreement has occurred and is continuing, the property
trustee and the Delaware trustee may be removed or replaced by the holders of
at least a majority in Liquidation Amount of the outstanding capital
securities. We are the only one that have the right to remove or replace the
administrative trustees. No resignation or removal of any of the trustees and
no appointment of a successor trustee shall be effective until the acceptance
of appointment by the successor trustee as described in the applicable trust
agreement.
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Co-Trustees and Separate Property Trustee
Unless an event of default under a trust agreement has occurred and is
continuing, we, as the holder of the common securities, and the administrative
trustees shall have the power:
. to appoint one or more persons approved by the property trustee either to
act as co-trustee, jointly with the property trustee, of all or any part
of the trust property, or to act as a separate trustee of any trust
property, in either case with the powers as provided in the instrument of
appointment; and
. to vest in the person(s) any property, title, right or power deemed
necessary or desirable, subject to the provisions of the applicable trust
agreement.
If an event of default under a trust agreement has occurred and is
continuing, only the property trustee may appoint a co-trustee or separate
property trustee.
Merger or Consolidation of Trustees
If any of the trustees merge, convert, or consolidate with or into another
entity or sells its trust operations to another entity, the new entity shall
be the successor of the trustee under each trust agreement, provided that the
corporation or other entity shall be qualified and eligible to be a trustee.
Mergers, Consolidations, Amalgamations or Replacements of the Trust
A trust may not merge with or into, consolidate, amalgamate, or be replaced
by or transfer or lease all or substantially all of its properties and assets
to any other entity (a merger event), except as described below. A trust may,
at our request, with the consent of the administrative trustees and without
your consent, merge with or into, consolidate, amalgamate or be replaced by
another trust provided that:
. the successor entity either:
--expressly assumes all of the obligations of the trust relating to the
capital securities; or
--substitutes for the capital securities other securities with terms
substantially similar to the capital securities (successor securities)
so long as the successor securities has the same rank as the capital
securities for distributions and payments upon liquidation, redemption
and otherwise;
. we expressly appoint a trustee of the successor entity who has the same
powers and duties as the property trustee of the trust as it relates to
the junior subordinated debt securities;
. the successor securities are listed or will be listed on the same
national securities exchange or other organization that the capital
securities are listed on;
. the merger event does not cause the capital securities or successor
securities to be downgraded by any national statistical rating
organization;
. the merger event does not adversely affect the rights, preferences and
privileges of the holders of the capital securities or successor
securities in any material way;
. the successor entity has a purpose substantially similar to that of the
trust;
. before the merger event, we have received an opinion of counsel stating
that:
--the merger event does not adversely affect the rights of the holders of
the capital securities or any successor securities in any material way;
and
--following the merger event, neither the trust nor the successor entity
will be required to register as an investment company under the
Investment Company Act; and
. we own all of the common securities of the successor entity and guarantee
the successor entity's obligations under the successor securities in the
same manner provided by the related guarantee.
The trusts and any successor entity must always be classified as grantor
trusts for U.S. federal income tax purposes unless all of the holders of the
capital securities approve otherwise.
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Voting Rights; Amendment of Each Trust Agreement
You have no voting rights except as discussed under "Description of the
Capital Securities--Mergers, Consolidations, Amalgamations or Replacements of
the Trust" and "Description of the Guarantee--Amendments and Assignment," and
as otherwise required by law and the applicable trust agreement. The property
trustee, the administrative trustees and us may amend each trust agreement
without your consent:
. to fix any ambiguity or inconsistency; or
. to modify, eliminate or add provisions to the applicable trust agreement
as shall be necessary to ensure that each trust shall at all times be
classified as a grantor trust for U.S. federal income tax purposes.
The administrative trustees and us may amend each trust agreement for any
other reason as long as the holders of at least a majority in aggregate
liquidation amount of the capital securities agree, and the trustees receive an
opinion of counsel which states that the amendment will not affect the
applicable trust status as a grantor trust for U.S. federal income tax
purposes, or its exemption from regulation as an investment company under the
Investment Company Act, except to:
. change the amount and/or timing or otherwise adversely affect the method
of payment of any distribution or Liquidation Amount on the capital
securities or common securities;
. restrict your right or the right of the common security holder to
institute suit for enforcement of any distribution or Liquidation Amount
on the capital securities or common securities;
The changes described in the two bullet points above require the approval of
each holder of the capital securities affected.
So long as the corresponding junior subordinated debt securities of a trust
are held by the property trustee of that trust, the trustees shall not:
. direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or executing any trust or power conferred
on the trustee relating to the corresponding junior subordinated debt
securities;
. waive any past default under Section 513 of the indenture;
. cancel an acceleration of the principal of the corresponding junior
subordinated debt securities; or
. agree to any change in the indenture or the corresponding junior
subordinated debt securities, where the trustees' approval is required,
without obtaining the prior approval of the holders of at least a
majority in the aggregate Liquidation Amount of all outstanding related
capital securities. However, if the indenture requires the consent of
each holder of corresponding junior subordinated debt securities that is
affected, then the property trustee must get approval of all holders of
capital securities.
The trustees cannot change anything previously approved by you without your
approval to make the change. The property trustee shall notify you of any
notice of default relating to the corresponding junior subordinated debt
securities.
In addition, before taking any of the actions described above, the trustees
must obtain an opinion of counsel experienced in these matters, stating that
the trust will continue to be classified as a grantor trust for U.S. federal
income tax purposes.
As described in each trust agreement, the property trustee may hold a
meeting so that you may vote on a change or request that you approve the change
by written consent.
Your vote or consent is not required for the trust to redeem and cancel its
capital securities under the trust agreement.
If your vote is taken or a consent is obtained, any capital securities that
are owned by us, the trustees or any affiliate of either of us shall, for
purposes of the vote or consent, be treated as if they were not outstanding.
Global Capital Securities
The capital securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
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of, a depositary identified in the applicable prospectus supplement. The
specific terms of the depositary arrangements for a series of capital
securities will be described in the applicable prospectus supplement. See
"Book-Entry Issuance."
Payment and Paying Agents
Payments regarding the capital securities shall be made to a depositary,
which shall credit the relevant accounts at the depositary on the applicable
distribution dates or, if any trusts capital securities are not held by a
depositary, the payments shall be made by check mailed to the address of the
holder entitled to it at the address listed in the register.
Unless otherwise specified in the applicable prospectus supplement, the
paying agent shall initially be the property trustee. The paying agent shall be
permitted to resign as paying agent with 30 days' written notice to the
property trustee and to us. If the property trustee shall no longer be the
paying agent, the administrative trustees shall appoint a successor (which
shall be a bank or trust company acceptable to the administrative trustees and
to us) to act as paying agent.
Registrar and Transfer Agent
Unless otherwise specified in the applicable prospectus supplement, the
property trustee will act as registrar and transfer agent for the capital
securities.
Registration of transfers of capital securities will be effected without
charge by or on behalf of each trust, after payment of any tax or other
governmental charges that are imposed in connection with any transfer or
exchange. No transfers of capital securities called for redemption will be
registered.
Information About the Property Trustee
The property trustee will perform only those duties that are specifically
stated in each trust agreement. If an event of default arises under a trust
agreement, the property trustee must use the same degree of care and skill in
the exercise of its duties as a prudent person would exercise or use in the
conduct of his or her own affairs. The property trustee is under no obligation
to exercise any of the powers given it by the applicable trust agreement at
your request unless it is offered reasonable security or indemnity against the
costs, expenses and liabilities that it might incur.
If no event of default under a trust agreement has occurred and is
continuing, and the property trustee is required to decide between alternative
courses of action, construe ambiguous provisions in applicable trust agreement
or is unsure of the application of any provisions of the applicable trust
agreement, and the matter is not one on which you are entitled to vote, then
the property trustee shall:
. take some action as directed by us; and
. if not so directed, shall take whatever action that the property trustee
deems advisable and in your best interests, and in the best interests of
the holders of the capital securities and common securities of the
applicable trust and will have no liability except for its own bad faith,
negligence or willful misconduct.
Miscellaneous
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the trusts in the manner that:
. no trust will be deemed to be an investment company required to be
registered under the Investment Company Act or to be taxed as a
corporation for U.S. federal income tax purposes;
. the corresponding junior subordinated debt securities will be treated as
our indebtedness for U.S. federal income tax purposes.
In this connection, the administrative trustees and us are authorized to
take any action, consistent with applicable law or the certificate of trust of
each trust or each trust agreement, that we each determine in our discretion to
be necessary or desirable for these purposes.
You have no preemptive or similar rights. A trust may not borrow money,
issue debt or mortgages, or pledge any of its assets.
Governing Law
Each trust agreement will be governed by and construed under the laws of the
State of Delaware.
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DESCRIPTION OF THE GUARANTEE
General
We will execute a guarantee, for your benefit at the same time that a trust
issues the capital securities. The guarantee trustee will hold the guarantee
for your benefit. The guarantee will be qualified as an indenture under the
Trust Indenture Act. The form of guarantee has been filed as an exhibit to the
registration statement.
This section summarizes the material terms and provisions of the guarantee.
Because this is only a summary, it does not contain all of the details found in
the full text of the guarantee. If you would like additional information you
should read the form of guarantee agreement.
We will irrevocably agree to pay to you in full the Guarantee Payments as
and when due, regardless of any defense, right of set-off or counterclaim which
the trust may have or assert other than the defense of payment. The following
payments, to the extent not paid by a trust, will be subject to the guarantee:
. any accumulated and unpaid distributions required to be paid on the
capital securities, to the extent that the trust has applicable funds
available to make the payment;
. the redemption price and all accrued and unpaid distributions to the date
of redemption on the capital securities called for redemption, to the
extent that the trust has funds available to make the payment; or
. in the event of a voluntary or involuntary dissolution, winding up or
liquidation of the trust (other than in connection with a distribution of
corresponding junior subordinated debt securities to you or the
redemption of all the related capital securities), the lesser of:
--the aggregate of the Liquidation Amount specified in the applicable
prospectus supplement for each capital security plus all accrued and
unpaid distributions on the capital securities to the date of payment;
and
--the amount of assets of the trust remaining available for distribution
to you.
We can satisfy our obligation to make a guarantee payment by direct payment
to you of the capital securities or by causing the trust to pay those amounts
to the holders.
Each guarantee will be an irrevocable guarantee on a subordinated basis of
the related trust's obligations under the capital securities, but will apply
only to the extent that the related trust has funds sufficient to make the
payments, and is not a guarantee of collection.
No single document executed by us that is related to the issuance of the
capital securities will provide for its full, irrevocable and unconditional
guarantee of the capital securities. It is only the combined operation of the
applicable guarantee, the applicable trust agreement, the indenture and the
expense agreement that has the effect of providing a full, irrevocable and
unconditional guarantee of the trust's obligations under its capital
securities.
Status of Guarantees
Each guarantee will constitute an unsecured obligation of ours and will rank
subordinate and junior in right of payment to all of our Senior Debt; and
Each guarantee will rank equally with all other guarantees issued by us. The
guarantee will constitute a guarantee of payment and not of collection (in
other words you may sue us, or seek other remedies, to enforce your rights
under the guarantee without first suing any other person or entity). Each
guarantee will be held for your benefit. Each guarantee will not be discharged
except by payment of the Guarantee Payments in full to the extent not
previously paid by the trust or upon distribution to you of the corresponding
series of junior subordinated debt securities. None of the guarantees places a
limitation on the amount of additional Senior Debt that we may incur. We expect
to incur from time to time additional indebtedness constituting Senior Debt.
Amendments and Assignment
Except regarding any changes which do not adversely affect your rights in
any material respect (in which case your consent will not be required), the
guarantee may only be amended with the prior approval of the holders of at
least a majority in
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aggregate Liquidation Amount of the outstanding capital securities. A
description of the manner in which approval may be obtained is described under
"Description of the Capital securities--Voting Rights; Amendment of Each Trust
Agreement." All guarantees and agreements contained in each guarantee will be
binding on our successors, assigns, receivers, trustees and representatives and
shall inure to the benefit of the holders of the related capital securities
then outstanding.
Events of Default
An event of default under each guarantee occurs if we fail to make any of
our required payments or perform our obligations under the guarantee. The
holders of at least a majority in aggregate Liquidation Amount of the related
capital securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the guarantee trustee
relating to the guarantee or to direct the exercise of any trust or power given
to the guarantee trustee under the guarantee.
You may institute a legal proceeding directly against us to enforce your
rights under the guarantee without first instituting a legal proceeding against
the trust, the guarantee trustee or any other person or entity.
As guarantor, we are required to file annually with the guarantee trustee a
certificate stating whether or not we are in compliance with all the conditions
and covenants applicable to us under the guarantee.
Information About the Guarantee Trustee
The guarantee trustee, other than during the occurrence and continuance of
an event of default by us in the performance of any guarantee, will only
perform the duties that are specifically described in the guarantee. After an
event of default on any guarantee, the guarantee trustee will exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the guarantee
trustee is under no obligation to exercise any of its powers as described in
the guarantee at your request unless it is offered reasonable indemnity against
the costs, expenses and liabilities that it might incur.
Termination of Capital Securities Guarantees
Each guarantee will terminate once the related capital securities are paid
in full or upon distribution of the corresponding series of junior subordinated
debt securities to you. Each guarantee will continue to be effective or will be
reinstated if at any time you are required to restore payment of any sums paid
under the capital securities or the guarantee.
Governing Law
The guarantee will be governed by and construed under the laws of the State
of New York.
THE EXPENSE AGREEMENT
Under an expense agreement entered into by us under each trust agreement, we
will irrevocably and unconditionally guarantee, to each person or entity to
whom the applicable trust becomes indebted or liable, the full payment of any
costs, expenses or liabilities of each trust, other than obligations of the
trust to you under the terms of the capital securities or other similar
interests.
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE CORRESPONDING JUNIOR
SUBORDINATED DEBT SECURITIES AND THE GUARANTEES
Full and Unconditional Guarantee
Payments of distributions and other amounts due on the capital securities
(to the extent the trust has funds available for the payments) will be
irrevocably guaranteed by us to the extent described under "Description of the
Guarantee." No single document executed by us in connection with the issuance
of the capital securities will provide for its full, irrevocable and
unconditional guarantee of the capital securities. It is only the combined
operation of our obligations under the related guarantee, the related trust
agreement, the corresponding series of junior subordinated debt securities, the
indenture and the expense agreement that has the effect of providing a full,
irrevocable and unconditional guarantee of the trust's obligations under the
related series of capital securities.
If we do not make payments on any series of corresponding junior
subordinated debt securities,
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the related trust will not pay distributions or other amounts on the related
capital securities. The guarantee does not cover payments of distributions when
the related trust does not have sufficient funds to pay such distributions. If
that occurs, your remedy is to sue us, or seek other remedies, to enforce your
rights under the guarantee without first instituting a legal proceeding against
the guarantee trustee.
Sufficiency of Payments
As long as we make payments of interest and other payments when due on each
series of corresponding junior subordinated debt securities, the payments will
be sufficient to cover the payment of distributions and other payments due on
the related capital securities, primarily because:
. the aggregate principal amount of each series of corresponding junior
subordinated debt securities will be equal to the sum of the aggregate
liquidation amount of the related capital securities and common
securities;
. the interest rate and interest and other payment dates on each series of
corresponding junior subordinated debt securities will match the
distribution rate and distribution and other payment dates for the
related capital securities;
. we shall pay for any and all costs, expenses and liabilities of a trust
except the trust's obligations to holders of its capital securities under
the capital securities; and
. each trust agreement provides that the trust will not engage in any
activity that is inconsistent with the limited purposes of the trust.
We have the right to set-off any payment we are otherwise required to make
under the indenture with and to the extent we have made, or are concurrently on
the date of the payment making, a payment under the related guarantee.
Enforcement Rights of Holders of Capital Securities
You may institute a legal proceeding directly against us to enforce your
rights under the related guarantee without first instituting a legal proceeding
against the guarantee trustee, the related trust or any other person or entity.
A default or event of default under any of our Senior Debt would not
constitute a default or event of default under the trust agreements. However,
in the event of payment defaults under, or acceleration of, any of our Senior
Debt, the subordination provisions of the indenture provide that no payments
will be made regarding the corresponding junior subordinated debt securities
until the Senior Debt has been paid in full or any payment default on it has
been cured or waived. Failure to make required payments on any series of
corresponding junior subordinated debt securities would constitute an event of
default under the trust agreements.
Limited Purpose of Trusts
Each trust's capital securities evidence a beneficial interest in the
respective trust, and each trust exists for the sole purpose of issuing its
capital securities and common securities and investing the proceeds in
corresponding junior subordinated debt securities. A principal difference
between the rights of a holder of a capital security and a holder of a
corresponding junior subordinated debt security is that a holder of a
corresponding junior subordinated debt security is entitled to receive from us
the principal amount of and interest accrued on corresponding junior
subordinated debt securities held, while a holder of capital securities is
entitled to receive distributions from the trust (or from us under the
applicable guarantee) if and to the extent the trust has funds available for
the payment of distributions.
Rights Upon Termination
In the event of any voluntary or involuntary termination winding up or
liquidation of any trust involving a liquidation of the corresponding junior
subordinated debt securities held by a trust, you will be entitled to receive,
out of assets held by that trust, the liquidation distribution in cash. See
Description of the Capital Securities--Liquidation Distribution Upon
Termination. In the event of our voluntary or involuntary liquidation or
bankruptcy, the property trustee, as holder of the corresponding junior
subordinated debt securities, would be a subordinated creditor of ours,
subordinated in right of payment to all Senior Debt, but entitled to receive
payment in full of principal, premium, if any, and interest, before any of our
common stockholders
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receive payments or distributions. Since we are the guarantor under each
guarantee and have agreed to pay for all costs, expenses and liabilities of
each trust (other than the trust's obligations to you), your position and the
position of a holder of the corresponding junior subordinated debt securities
relative to other creditors and to our stockholders in the event of our
liquidation or bankruptcy are expected to be substantially the same.
BOOK-ENTRY ISSUANCE
DTC will act as securities depositary for all of the capital securities and
the junior subordinated debt securities, unless otherwise stated in the
applicable prospectus supplement. We will issue the capital securities and
junior subordinated debt securities only as fully-registered securities
registered in the name of Cede & Co. (DTC's nominee). We will issue and deposit
with DTC one or more fully-registered global certificates for the capital
securities of each trust and junior subordinated debt securities representing
in the aggregate, the total number of the trust's capital securities or
aggregate principal balance of junior subordinated debt securities,
respectively.
DTC is a limited purpose trust company organized under the New York Banking
Law, a banking organization under the meaning of the New York Banking Law, a
member of the Federal Reserve System, a clearing corporation under the meaning
of the New York Uniform Commercial Code, and a clearing agency registered under
the provisions of Section 17A of the Exchange Act. DTC holds securities that
its participants deposit with DTC. DTC also facilitates the settlement among
participants of securities transactions, like transfers and pledges, in
deposited securities through electronic computerized book-entry changes in the
participants' accounts, eliminating in this manner the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations and other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Others like securities brokers
and dealers, banks and trust companies that clear through or maintain custodial
relationships with Direct Participants, either directly or indirectly, the
Indirect Participants, also have access to the DTC system. The rules applicable
to DTC and its participants are on file with the SEC.
Purchases of capital securities or junior subordinated debt securities
within the DTC system must be made by or through Direct Participants, who will
receive a credit for the capital securities or junior subordinated debt
securities on DTC's records. The ownership interest of each actual purchaser of
each capital security and each junior subordinated debt securities is in turn
to be recorded on the Direct and Indirect Participants' records. DTC will not
send written confirmation to Beneficial Owners of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased capital securities or junior subordinated debt securities. Transfers
of ownership interests in the capital securities or junior subordinated debt
securities are to be accomplished by entries made on the books of participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in capital securities or
junior subordinated debt securities, unless the book-entry system for the
capital securities of the trust or junior subordinated debt securities is
discontinued.
DTC has no knowledge of the actual Beneficial Owners of the capital
securities or junior subordinated debt securities. DTC's records reflect only
the identity of the Direct Participants to whose accounts the capital
securities or junior subordinated debt securities are credited, which may or
may not be the Beneficial Owners. The participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners,
subject to any statutory or regulatory requirements as is in effect from time
to time, will be governed by arrangements among them.
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We will send redemption notices to Cede & Co. as the registered holder of
the capital securities or junior subordinated debt securities. If less than all
of a trust's capital securities or the junior subordinated debt securities are
redeemed, DTC's current practice is to determine by lot the amount of the
interest of each Direct Participant to be redeemed.
Although voting on the capital securities or the junior subordinated debt
securities is limited to the holders of record of the capital securities or
junior subordinated debt securities, in those instances in which a vote is
required, neither DTC nor Cede & Co. will itself consent or vote on capital
securities or junior subordinated debt securities. Under its usual procedures,
DTC would mail an omnibus proxy to the relevant trustee as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to Direct Participants for whose accounts the capital securities
or junior subordinated debt securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
The relevant trustee will make distribution payments on the capital
securities or on the junior subordinated debt securities to DTC. DTC's practice
is to credit Direct Participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payments on the payment date.
Standing instructions and customary practices will govern payments from
participants to Beneficial Owners. Subject to any statutory or regulatory
requirements, participants, and not DTC, the relevant trustee, trust or us will
be responsible for the payment. The relevant trustee is responsible for payment
of distributions to DTC. Direct and Indirect Participants are responsible for
the disbursement of the payments to the Beneficial Owners.
DTC may discontinue providing its services as securities depositary on any
of the capital securities or the junior subordinated debt securities at any
time by giving reasonable notice to the relevant trustee and to us. If a
successor securities depositary is not obtained, final capital securities or
junior subordinated debt securities certificates must be printed and delivered.
We may at our option decide to discontinue the use of the system of book-entry
transfers through DTC (or a successor depositary). After an event of default,
the holders of a majority in liquidation preference of capital securities or
aggregate principal amount of junior subordinated debt securities may
discontinue the system of book-entry transfers through DTC. In this case, final
certificates for the capital securities or junior subordinated debt securities
will be printed and delivered.
The trusts and us have obtained the information in this section about DTC
and DTC's book-entry system from sources that they believe to be accurate, but
the trusts and us assume no responsibility for the accuracy of the information.
Neither the trusts nor USB have any responsibility for the performance by DTC
or its participants of their respective obligations as described in this
prospectus or under the rules and procedures governing their respective
operations.
PLAN OF DISTRIBUTION
We may sell the securities:
. through underwriters or dealers;
. directly to one or more purchasers; or
. through agents.
The applicable prospectus supplement will include the names of underwriters,
dealers or agents retained. The applicable prospectus supplement will also
include the purchase price of the securities, our proceeds from the sale, any
underwriting discounts or commissions and other items constituting
underwriters' compensation, and any securities exchanges on which the
securities are listed.
The underwriters will acquire the securities for their own account. They may
resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the
securities will be subject to some conditions. The underwriters will be
obligated to purchase all the securities offered if any of the securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
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Underwriters, dealers, and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from us and any profit on the resale
of the securities by them may be treated as underwriting discounts and
commissions under the Securities Act.
We may have agreements with the underwriters, dealers, and agents to
indemnify them against some civil liabilities, including liabilities under the
Act, or to contribute to payments which the underwriters, dealers or agents may
be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our subsidiaries in the ordinary course of their
businesses.
We may authorize underwriters, dealers and agents to solicit offers by
certain specified institutions to purchase securities from us at the public
offering price stated in the applicable prospectus supplement on delayed
delivery contracts providing for payment and delivery on a specified date in
the future. These contracts will be subject only to the conditions included in
the applicable prospectus supplement, and the prospectus supplement will
specify the commission payable for solicitation of such contracts.
Unless the applicable prospectus supplement states otherwise, all securities
except for common stock will be new issues of securities with no established
trading market. Any underwriters who purchase securities from us for public
offering and sale may make a market in such securities, but such underwriters
will not be obligated to do so and may discontinue any market making at any
time without notice. We cannot assure you that the trading market for any
securities will be liquid.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable prospectus supplement, some
legal matters will be passed upon for us by Dorsey & Whitney LLP, Minneapolis,
Minnesota, our counsel, and for the underwriters, by Davis Polk & Wardwell, New
York, New York. Richards, Layton & Finger, P.A., Wilmington, Delaware, special
Delaware counsel for the trusts, will pass on some legal matters for the
trusts. Dorsey & Whitney LLP and Davis Polk & Wardwell will rely on the opinion
of Richards, Layton & Finger, P.A., Wilmington, Delaware as to matters of
Delaware law.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report (Form 10-K) for the year
ended December 31, 1998, as stated in their report which is incorporated by
reference in this prospectus. Our consolidated financial statements are
incorporated in this prospectus by reference in reliance on Ernst & Young's
report given on their authority as experts in accounting and auditing.
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GLOSSARY
Below are abbreviated definitions of capitalized terms used in this
prospectus and in the applicable prospectus supplement. The applicable
prospectus supplement may contain a more complete definition of some of the
terms defined here and reference should be made to the applicable prospectus
supplement for a more complete definition of these terms.
"Additional Sums" refers to the additional amounts required to be paid so
that the amount of distributions due and payable by a trust on outstanding
capital securities and common securities shall not be reduced because of any
additional taxes, duties and other governmental charges to which a trustee is
subject because of a Tax Event.
"Beneficial Owner" refers to the ownership interest of each actual purchaser
of each debt security.
"Capital Treatment Event" refers to the reasonable determination by us that,
as a result of any:
. amendment to, or change (including any prospectus change) in, laws or
any applicable regulation of the United States and any political
subdivision; or
. as a result of any official or administrative pronouncement or action or
judicial decision interpreting or applying the laws or regulations,
which amendment is effective or announced on or after the date of
issuance the capital securities,
there is more than an insubstantial risk of impairment of our ability to treat
the capital securities (or any substantial portion) as "Tier 1 capital" (or its
equivalent) for purposes of the capital adequacy guidelines of the Federal
Reserve, in effect and applicable to us.
"Company" refers to U.S. Bancorp and its subsidiaries, unless otherwise
stated.
"Debt" refers to, for any person, whether recourse is to all or a portion of
the assets of the person and whether or not contingent:
. every obligation of the person for money borrowed;
. every obligation of the person evidenced by bonds, debt securities,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
. every reimbursement obligation of the person regarding letters of
credit, bankers' acceptances or similar facilities issued for the
account of the person;
. every obligation of the person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of
business);
. every capital lease obligation of the person;
. all indebtedness of the person whether incurred on, before, or after the
date of the indenture, for claims relating to derivative products
including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; and
. every obligation of the type referred to in the first through the sixth
bullet points above of another person and all dividends of another
person the payment of which, in either case, the person has guaranteed
or is responsible or liable, directly or indirectly, as obligor or
otherwise.
"Depositary" refers to a bank or trust company selected by us, having its
principal office in the United States, and having a combined capital and
surplus of at least $50 million, and where we will deposit the shares of any
series of the preferred stock underlying the depositary shares under a separate
deposit agreement between us and that bank or trust company.
30
<PAGE>
"Direct Participants" refers to securities brokers and dealers, banks, trust
companies, clearing corporations and other organizations who, with the New York
Stock Exchange, Inc., the American Stock Exchange Inc., and the National
Association of Securities Dealers, Inc., own DTC. Purchases of debt securities
within the DTC system must be made by or through Direct Participants who will
receive a credit for the debt securities on DTC's records.
"Guarantee Payments" refers to the following payments, to the extent not
paid by a trust, which will be subject to the guarantee:
. any accumulated and unpaid distributions required to be paid on the
capital securities, to the extent that the trust has applicable funds
available to make the payment;
. the redemption price and all accrued and unpaid distributions to the
date of redemption with respect to capital securities called for
redemption, to the extent that the trust has funds available to make the
payment; or
. in the event of a voluntary or involuntary dissolution, winding up or
liquidation of the trust (other than in connection with a distribution
of corresponding junior subordinated debt securities to you or the
redemption of all the related capital securities), the lesser of:
--the aggregate of the Liquidation Amount specified in the prospectus
supplement for each capital security plus all accrued and unpaid
distributions on the capital securities to the date of payment; and
--the amount of assets of the trust remaining available for
distribution to you.
"Indirect Participants" refers to others, like securities brokers and
dealers, banks and trust companies that clear through or maintain custodial
relationships with Direct Participants, either directly or indirectly, and who
also have access to the DTC system.
"Investment Company Event" refers to receipt by us and a trust of an opinion
of counsel experienced in matters relating to investment companies to the
effect that, as a result of any:
. change in law or regulation; or
. change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority,
the trust is or will be considered an investment company that is required to be
registered under the Investment Company Act, which change becomes effective on
or after the original issuance of the capital securities.
"Like Amount" refers to:
. for a redemption of any series of capital securities and common
securities, capital securities and common securities of the series
having a Liquidation Amount equal to that portion of the principal
amount of corresponding junior subordinated debt securities to be
contemporaneously redeemed. The Like Amount will be allocated to the
common securities and to the capital securities based upon their
relative Liquidation Amounts. The proceeds will be used to pay the
redemption price of the capital securities and common securities; and
. for a distribution of corresponding junior subordinated debt securities
to holders of any series of capital securities and common securities,
corresponding junior subordinated debt securities having a principal
amount equal to the Liquidation Amount of the related capital securities
and common securities.
"Liquidation Amount" refers to $25 per capital security and common security,
unless otherwise provided in the applicable prospectus supplement.
31
<PAGE>
"Omnibus Proxy" refers to the omnibus proxy that DTC would mail under its
usual procedures to the relevant trustee as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to
Direct Participants for whose accounts the debt securities are credited on the
record date.
"Our" refers to U.S. Bancorp and its subsidiaries, unless otherwise stated.
"Ours" refers to U.S. Bancorp and its subsidiaries, unless otherwise stated.
"Senior Debt" refers to the principal of, premium, if any, and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to us whether or not the claim for
post-petition interest is allowed in the proceeding), on our Debt whether
incurred on, before or subsequent to the date of the indenture, unless, in the
instrument creating or evidencing the Debt or under which the Debt is
outstanding, it is provided that the obligations are not superior in right of
payment to the junior subordinated debt securities or to other Debt which ranks
equally with, or subordinated to the junior subordinated debt securities.
"Tax Event" refers to the fact that either we or a trust will have received
an opinion of counsel (which may be our counsel or counsel of an affiliate but
not an employee and which must be reasonably acceptable to the property
trustee) experienced in tax matters stating that, as a result of any:
. amendment to, or change (including any announced prospective change) in,
the laws (or any regulations under those laws) of the United States or
any political subdivision or taxing authority affecting taxation; or
. interpretation or application of the laws, enumerated in the preceding
bullet point, or regulations by any court, governmental agency or
regulatory authority;
there is more than an insubstantial risk that:
--a trust is, or will be within 90 days of the date of the opinion of
counsel, subject to U.S. federal income tax on interest received on the
junior subordinated debt securities;
--interest payable by us to the trusts on the junior subordinated debt
securities is not, or will not be within 90 days of the date of the
opinion of counsel, deductible, in whole or in part, for U.S. federal
income tax purposes; or
--a trust is, or will be within 90 days of the date of the opinion of
counsel, subject to more than a minimal amount of other taxes, duties,
assessments or other governmental charges.
"Tier 1 Capital" refers to the sum of core capital elements, less goodwill
and other intangible assets. The core capital elements include: common
stockholders' equity, qualifying noncumulative perpetual preferred stock
(including related surplus), qualifying cumulative perpetual preferred stock
(including related surplus), and minority interest in the equity account of
consolidated subsidiaries.
"Us" refers to U.S. Bancorp and its subsidiaries, unless otherwise stated.
"We" refers to U.S. Bancorp and its subsidiaries, unless otherwise stated.
32
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
You should rely on the information incorporated by reference or provided in
this prospectus. We have not authorized anyone else to provide you with
different information. Neither we nor the underwriters are making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus is accurate as of any date
other than the date on the front of this document.
---------------
TABLE OF CONTENTS
Prospectus
<TABLE>
<CAPTION>
Page
----
<S> <C>
About this Prospectus.................................................... 2
Where You Can Find More Information...................................... 2
About U.S. Bancorp....................................................... 3
About The Trusts......................................................... 4
Use of Proceeds.......................................................... 4
Ratios of Earnings to Fixed Charges and to Combined Fixed Charges and
Preferred Stock Dividends............................................... 5
Description of Junior Subordinated Debt Securities....................... 5
Description of Capital Securities........................................ 15
Description of the Guarantee............................................. 24
The Expense Agreement.................................................... 25
Relationship among the Capital Securities, the Corresponding Junior
Subordinated Debt Securities and the Guarantees......................... 25
Book-entry Issuance...................................................... 27
Plan of Distribution..................................................... 28
Validity of Securities................................................... 29
Experts.................................................................. 29
Glossary................................................................. 30
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
-----------------------------------
-----------------------------------
$2,300,000,000
U.S. Bancorp
Junior Subordinated Deferrable
Interest Debt Securities
USB Capital III
USB Capital IV
USB Capital V
Capital Securities
Fully and unconditionally guaranteed
as described in this document, by
U.S. Bancorp
---------------
PROSPECTUS
---------------
, 1999
-----------------------------------
-----------------------------------
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
<TABLE>
<S> <C>
SEC registration fee............................................... $ 639,400
Accountant's fee and expenses...................................... 45,000
Attorneys' fees and expenses....................................... 100,000
Trustee's and Depositary fees and expenses......................... 100,000
Printing and engraving expenses.................................... 100,000
Fees and expenses of trustees...................................... 100,000
State qualification fees and expenses.............................. 35,000
Rating agencies' fees.............................................. 450,000
Miscellaneous...................................................... 30,600
----------
Total.......................................................... $1,600,000*
==========
</TABLE>
- --------
* All fees and expenses other than the SEC registration fee are estimated. The
expenses listed above will be paid by USB.
Item 15. Indemnification Of Directors And Officers
Section 145 of the Delaware General Corporation Law contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in connection
with litigation.
Article Ninth of USB's Restated Certificate of Incorporation, as amended,
provides that a director will not be personally liable to USB or its
stockholders for monetary damages for a breach of fiduciary duty as a director,
except for liability (1) for any breach of the director's duty of loyalty to
USB or its stockholders, (2) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (3) under the
Delaware statutory provision making directors personally liable for unlawful
dividends or unlawful stock repurchases or redemptions or (4) for any
transaction for which the directors derived an improper personal benefit.
The bylaws of USB provide that the officers and directors of USB and certain
others will be indemnified to substantially the same extent permitted by
Delaware law.
USB maintains a standard policy of officers' and directors' insurance.
In the Underwriting Agreements, forms of which are filed as Exhibit 1.1 and
1.3 hereto, and in the Distribution Agreement, a form of which is filed as
Exhibit 1.2 hereto, the Underwriters and the Agents, respectively, will agree
to indemnify, under certain conditions, USB, its directors, certain of its
officers and persons who control USB within the meaning of the Securities Act
of 1933, as amended (the "Act") against certain liabilities.
II-1
<PAGE>
Item 16. List Of Exhibits
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
1.1 Proposed form of Underwriting Agreement with respect to the Debt
Securities with respect to the Debt Securities (incorporated by
reference to Exhibit 1.1 to USB's Registration Statement on Form S-3
(File No. 33-58521)).
1.2 Proposed form of Distribution Agreement with respect to the Debt
Securities with respect to the Debt Securities (incorporated by
reference to Exhibit 1.2 to USB's Registration Statement on Form S-3
(File No. 33-58521)).
1.3 Proposed form of Underwriting Agreement with respect to the Capital
Securities (to be filed subsequently by Form 8-K).
4.1 Indenture dated as of October 1, 1991 between USB and Citibank, N.A.,
as Senior Trustee (incorporated by reference to Exhibit 4.1 to USB's
Current Report on Form 8-K dated November 12, 1991).
4.2 Indenture dated as of October 1, 1991 between USB and Citibank, N.A.,
as Subordinated Trustee, as amended by a First Supplemental Indenture
dated as of April 1, 1993 (incorporated by reference to Exhibit 4.2 to
USB's Current Report on Form 8-K dated November 12, 1991 and Exhibit
4.1 to USB's Current Report on Form 8-K dated April 26, 1993).
4.3 Junior Subordinated Indenture dated November 15, 1996, between USB and
Wilmington Trust Company, as Junior Subordinated Trustee (incorporated
by reference to Exhibit 4.1 to USB's Registration Statement on Form S-4
(File No. 333-16991)).
4.4 Certificate of Trust of USB Capital III (incorporated by reference to
Exhibit 4.5 to USB's Registration Statement on Form S-3 (File No. 333-
45211)).
4.5 Certificate of Trust of USB Capital IV (incorporated by reference to
Exhibit 4.6 to USB's Registration Statement on Form S-3 (File No. 333-
45211)).
4.6 Certificate of Trust of USB Capital V (incorporated by reference to
Exhibit 4.7 to USB's Registration Statement on Form S-3 (File No. 333-
45211)).
4.7 Trust Agreement, with respect to USB Capital III, dated January 22,
1998, between USB, Wilmington Trust Company as Property Trustee and
Junior Subordinated Trustee and the Administrative Agents named therein
(incorporated by reference to Exhibit 4.9 to USB's Registration
Statement on Form S-3 (File No. 333-45211)).
4.8 Trust Agreement, with respect to USB Capital IV dated January 22, 1998,
between USB, Wilmington Trust Company as Property Trustee and Junior
Subordinated Trustee and the Administrative Agents named therein
(incorporated by reference to Exhibit 4.10 to USB's Registration
Statement on Form S-3 (File No. 333-45211)).
4.9 Trust Agreement, with respect to USB Capital V, dated January 22, 1998,
between USB, Wilmington Trust Company as Property Trustee and Junior
Subordinated Trustee and the Administrative Agents named therein
(incorporated by reference to Exhibit 4.11 to USB's Registration
Statement on Form S-3 (File No. 333-45211)).
4.10 Form of Amended and Restated Trust Agreement (incorporated by reference
to Exhibit 4.12 to USB's Registration Statement on Form S-3 (File No.
333-45211)).
4.11 Form of Senior Debt Security (included as part of Exhibit 4.1).
4.12 Form of Subordinated Debt Security (included as part of Exhibit 4.2).
4.13 Form of Capital Security Certificate (included as part of Exhibit
4.10).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
4.14 Form of Junior Subordinated Debt Security (included as part of Exhibit
4.3).
4.15 Form of Guarantee Agreement (incorporated by reference to Exhibit 4.17
to USB's Registration Statement on Form S-3 (File No. 333-45211)).
4.16 Proposed form of Debt Securities Warrant Agreement (incorporated by
reference to Exhibit 4.5 to USB's Registration Statement on Form S-3
(File No. 33-39303)).
4.17 Proposed form of Debt Securities Warrant Certificate (included as part
of Exhibit 4.16).
4.18 Proposed Form of Certificate of Designations (incorporated by
reference to Exhibit 4.7 to USB's Registration Statement on Form S-3
(File No. 333-1455)).
4.19 Proposed form of Deposit Agreement (incorporated by reference to
Exhibit 4.8 to USB's Registration Statement on Form S-3 (File No. 333-
1455)).
* 5.1 Opinion and consent of Dorsey & Whitney LLP as to the legality of the
Debt Securities, Preferred Stock, Depositary Shares, Debt Warrants and
Guarantees to be issued by USB.
* 5.2 Opinion of Richards, Layton & Finger PA, special Delaware counsel, as
to the legality of the Capital Securities to be issued by USB Capital
III, USB Capital IV and USB Capital V.
*12.1 Computation of ratio of earnings to fixed charges and to combined
fixed charges and preferred stock.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Dorsey & Whitney LLP (included as part of Exhibit 5.1).
*23.3 Consent of Richards, Layton & Finger (included as part of Exhibit
5.2).
*24.1 Power of attorney from directors of USB signing by an attorney-in-
fact.
*25.1 Form T-1 Statement of Eligibility of Citibank, N.A. to act as Senior
Trustee and Subordinated Trustee under the Senior Indenture and the
Subordinated Indenture, respectively.
*25.2 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee under the Junior Subordinated Indenture.
*25.3 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee with respect to the Amended and Restated Trust Agreement of
USB Capital III.
*25.4 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee with respect to the Amended and Restated Trust Agreement of
USB Capital IV.
*25.5 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee with respect to the Amended and Restated Trust Agreement of
USB Capital V.
*25.6 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee under the Guarantee Agreement for the benefit of the
holders of Capital Securities of USB Capital III.
*25.7 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee under the Guarantee Agreement for the benefit of the
holders of Capital Securities of USB Capital IV.
*25.8 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee under the Guarantee Agreement for the benefit of the
holders of Capital Securities of USB Capital V.
</TABLE>
- --------
* Filed herewith.
II-3
<PAGE>
Item 17. Undertakings
Each of the undersigned registrants 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) under the Securities Act if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change in the information set forth in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by USB pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each the post-effective amendment will be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of the securities at that time will 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.
Each of the undersigned registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
USB's annual report pursuant to section 13(a) or section 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 will be deemed to be a new registration statement
relating to the securities offered therein, and the offering of the securities
at that time will be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
registrant pursuant to the foregoing provisions, or otherwise, each registrant
has been advised that, in the opinion of the Securities and Exchange
Commission, the indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against liabilities (other than the payment by each 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 the director, officer or controlling person in connection with the
securities being registered, each registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether the indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of the issue.
II-4
<PAGE>
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 Minneapolis, State of Minnesota, on July 21, 1999.
U.S. Bancorp
/s/ John F. Grundhofer
By: _________________________________
John F. Grundhofer
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ John F. Grundhofer Chairman, President,
Chief Executive
Officer and
Director
(principal executive officer)
July 21, 1999
- -------------------------------------
John F. Grundhofer
/s/ Susan E. Lester Executive Vice
President
and Chief Financial Officer
(principal financial officer)
July 21, 1999
- -------------------------------------
Susan E. Lester
/s/ Terrance R. Dolan Senior Vice
President
and Controller
(principal accounting officer)
July 21, 1999
- -------------------------------------
Terrance R. Dolan
/s/ Linda L. Ahlers* Director July 21, 1999
- -------------------------------------
Linda L. Ahlers
/s/ Harry L. Bettis* Director July 21, 1999
- -------------------------------------
Harry L. Bettis
/s/ Arthur D. Collins, Jr.* Director July 21, 1999
- -------------------------------------
Arthur D. Collins, Jr.
II-5
<PAGE>
Signature Title Date
/s/ Peter H. Coors* Director July 21, 1999
- -------------------------------------
Peter H. Coors
/s/ Robert L. Dryden* Director July 21, 1999
- -------------------------------------
Robert L. Dryden
/s/ Joshua Green III* Director July 21, 1999
- -------------------------------------
Joshua Green III
/s/ Delbert W. Johnson* Director July 21, 1999
- -------------------------------------
Delbert W. Johnson
/s/ Joel W. Johnson* Director July 21, 1999
- -------------------------------------
Joel W. Johnson
/s/ Jerry W. Levin* Director July 21, 1999
- -------------------------------------
Jerry W. Levin
/s/ Edward J. Phillips* Director July 21, 1999
- -------------------------------------
Edward J. Phillips
/s/ Paul A. Redmond* Director July 21, 1999
- -------------------------------------
Paul A. Redmond
/s/ Richard G. Reiten* Director July 21, 1999
- -------------------------------------
Richard G. Reiten
/s/ S. Walter Richey* Director July 21, 1999
- -------------------------------------
S. Walter Richey
*By /s/ Terrance R. Dolan July 21, 1999
- -------------------------------------
Pro se and as Attorney-in-Fact
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, USB Capital III
certifies that it has reasonable grounds to believe that it meets all 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 Minneapolis, and State of Minnesota on July 21,
1999.
USB CAPITAL, III
By: U.S. Bancorp, as Depositor
/s/ Lee R. Mitau
By___________________________________
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, USB Capital IV
certifies that it has reasonable grounds to believe that it meets all 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 Minneapolis, and State of Minnesota on July 21,
1999.
USB CAPITAL, IV
By: U.S. Bancorp, as Depositor
/s/ Lee R. Mitau
By:__________________________________
II-8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, USB Capital V
certifies that it has reasonable grounds to believe that it meets all 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 Minneapolis, and State of Minnesota on July 21,
1999.
USB CAPITAL, V
By: U.S. Bancorp, as Depositor
/s/ Lee R. Mitau
By:__________________________________
II-9
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1 Proposed form of Underwriting Agreement with respect to the Debt
Securities with respect to the Debt Securities (incorporated by
reference to Exhibit 1.1 to USB's Registration Statement on Form S-3
(File No. 33-58521)).
1.2 Proposed form of Distribution Agreement with respect to the Debt
Securities with respect to the Debt Securities (incorporated by
reference to Exhibit 1.2 to USB's Registration Statement on Form S-3
(File No. 33-58521)).
1.3 Proposed form of Underwriting Agreement with respect to the Capital
Securities (to be filed subsequently by Form 8-K).
4.1 Indenture dated as of October 1, 1991 between USB and Citibank, N.A.,
as Senior Trustee (incorporated by reference to Exhibit 4.1 to USB's
Current Report on Form 8-K dated November 12, 1991).
4.2 Indenture dated as of October 1, 1991 between USB and Citibank, N.A.,
as Subordinated Trustee, as amended by a First Supplemental Indenture
dated as of April 1, 1993 (incorporated by reference to Exhibit 4.2 to
USB's Current Report on Form 8-K dated November 12, 1991 and Exhibit
4.1 to USB's Current Report on Form 8-K dated April 26, 1993).
4.3 Junior Subordinated Indenture dated November 15, 1996, between USB and
Wilmington Trust Company, as Junior Subordinated Trustee (incorporated
by reference to Exhibit 4.1 to USB's Registration Statement on Form S-
4 (File No. 333-16991)).
4.4 Certificate of Trust of USB Capital III (incorporated by reference to
Exhibit 4.5 to USB's Registration Statement on Form S-3 (File No. 333-
45211)).
4.5 Certificate of Trust of USB Capital IV (incorporated by reference to
Exhibit 4.6 to USB's Registration Statement on Form S-3 (File No. 333-
45211)).
4.6 Certificate of Trust of USB Capital V (incorporated by reference to
Exhibit 4.7 to USB's Registration Statement on Form S-3 (File No. 333-
45211)).
4.7 Trust Agreement, with respect to USB Capital III, dated January 22,
1998, between USB, Wilmington Trust Company as Property Trustee and
Junior Subordinated Trustee and the Administrative Agents named
therein (incorporated by reference to Exhibit 4.9 to USB's
Registration Statement on Form S-3 (File No. 333-45211)).
4.8 Trust Agreement, with respect to USB Capital IV dated January 22,
1998, between USB, Wilmington Trust Company as Property Trustee and
Junior Subordinated Trustee and the Administrative Agents named
therein (incorporated by reference to Exhibit 4.10 to USB's
Registration Statement on Form S-3 (File No. 333-45211)).
4.9 Trust Agreement, with respect to USB Capital V, dated January 22,
1998, between USB, Wilmington Trust Company as Property Trustee and
Junior Subordinated Trustee and the Administrative Agents named
therein (incorporated by reference to Exhibit 4.11 to USB's
Registration Statement on Form S-3 (File No. 333-45211)).
4.10 Form of Amended and Restated Trust Agreement (incorporated by
reference to Exhibit 4.12 to USB's Registration Statement on Form S-3
(File No. 333-45211)).
4.11 Form of Senior Debt Security (included as part of Exhibit 4.1).
4.12 Form of Subordinated Debt Security (included as part of Exhibit 4.2).
4.13 Form of Capital Security Certificate (included as part of Exhibit
4.10).
4.14 Form of Junior Subordinated Debt Security (included as part of Exhibit
4.3).
</TABLE>
II-10
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
4.15 Form of Guarantee Agreement (incorporated by reference to Exhibit 4.17
to USB's Registration Statement on Form S-3 (File No. 333-45211)).
4.16 Proposed form of Debt Securities Warrant Agreement (incorporated by
reference to Exhibit 4.5 to USB's Registration Statement on Form S-3
(File No. 33-39303)).
4.17 Proposed form of Debt Securities Warrant Certificate (included as part
of Exhibit 4.16).
4.18 Proposed Form of Certificate of Designations (incorporated by
reference to Exhibit 4.7 to USB's Registration Statement on Form S-3
(File No. 333-1455)).
4.19 Proposed form of Deposit Agreement (incorporated by reference to
Exhibit 4.8 to USB's Registration Statement on Form S-3 (File No. 333-
1455)).
*5.1 Opinion and consent of Dorsey & Whitney LLP as to the legality of the
Debt Securities, Preferred Stock, Depositary Shares, Debt Warrants and
Guarantees to be issued by USB.
*5.2 Opinion of Richards, Layton & Finger PA, special Delaware counsel, as
to the legality of the Capital Securities to be issued by USB Capital
III, USB Capital IV and USB Capital V.
*12.1 Computation of ratio of earnings to fixed charges and to combined
fixed charges and preferred stock.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Dorsey & Whitney LLP (included as part of Exhibit 5.1).
*23.3 Consent of Richards, Layton & Finger (included as part of Exhibit
5.2).
*24.1 Power of attorney from directors of USB signing by an attorney-in-
fact.
*25.1 Form T-1 Statement of Eligibility of Citibank, N.A. to act as Senior
Trustee and Subordinated Trustee under the Senior Indenture and the
Subordinated Indenture, respectively.
*25.2 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee under the Junior Subordinated Indenture.
*25.3 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee with respect to the Amended and Restated Trust Agreement of
USB Capital III.
*25.4 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee with respect to the Amended and Restated Trust Agreement of
USB Capital IV.
*25.5 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee with respect to the Amended and Restated Trust Agreement of
USB Capital V.
*25.6 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee under the Guarantee Agreement for the benefit of the
holders of Capital Securities of USB Capital III.
*25.7 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee under the Guarantee Agreement for the benefit of the
holders of Capital Securities of USB Capital IV.
*25.8 Form T-1 Statement of Eligibility of Wilmington Trust Company to act
as Trustee under the Guarantee Agreement for the benefit of the
holders of Capital Securities of USB Capital V.
</TABLE>
- --------
* Filed herewith.
II-11
<PAGE>
[LETTERHEAD OF DORSEY & WHITNEY LLP]
Exhibit 5.1
U.S. Bancorp
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Ladies and Gentlemen:
We have acted as counsel to U.S. Bancorp, a Delaware corporation
(the "Company") and Depositor of USB Capital III, USB Capital IV and USB Capital
V, each a Delaware business trust (each a "Trust" and collectively the
"Trusts"), in connection with a Registration Statement on Form S-3 (the
"Registration Statement") relating to:
(A) the proposed sale by the Company from time to time, in one or more
series, of (i) its unsecured debt securities, which may be either senior debt
securities (the "Senior Debt Securities") or unsecured subordinated debt
securities (the "Subordinated Debt Securities" and, together with the Senior
Debt Securities, the "Debt Securities"); (ii) shares of its preferred stock (the
"Preferred Stock"); (iii) depositary shares (the "Depositary Shares")
representing fractional shares of Preferred Stock and evidenced by depositary
receipts; (iv) warrants to purchase Debt Securities (the "Debt Warrants"); and
the guarantee by the Company of the Capital Securities (as hereinafter defined)
of each of the Trusts (the "Guarantees");
(B) the proposed sale by the Company from time to time, in one or more
series, to the Trusts, of the Company's junior subordinated deferrable interest
debentures (the "Junior Subordinated Debentures"); and
(C) the proposed sale by each of the Trusts of its capital securities
(the "Capital Securities") from time to time, in one or more series.
The Debt Securities, Preferred Stock, Depositary Shares, Debt Warrants,
Guarantees, Junior Subordinated Debentures and Capital Securities are
hereinafter collectively referred to as the "Securities".
<PAGE>
U.S. Bancorp
July 23, 1999
Page 2
We have examined such documents, including the resolution of the Board
of Directors of the Company adopted on October 20, 1998 (the "Financing
Resolution") and the resolution of the Board of Directors of the Company adopted
on October 16, 1996 (the "Preferred Stock Resolution") (the Financing
Resolution and the Preferred Stock Resolution are hereinafter collectively
referred to as the "Resolutions"), and have reviewed such questions of law, as
we have considered necessary and appropriate for the purposes of our opinion set
forth below. In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company and the
Trusts, that such parties had the requisite power and authority (corporate or
otherwise) to execute, deliver and perform such agreements or instruments, that
such agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinion, we have relied
upon certificates of officers of the Company and the Trusts and of public
officials. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Indentures, the Trust Agreement and
the Guarantees, each in the form incorporated by reference as exhibits to the
Registration Statement.
Based on the foregoing, we are of the opinion that:
1. When the specific terms of a series of Debt Securities have been
specified in a Supplemental Indenture or an Officer's Certificate, which has
been executed and delivered to the Trustee by an Authorized Officer (as defined
in the Financing Resolution), such series of Debt Securities will have been duly
authorized by all requisite corporate action and, when executed and
authenticated as specified in the Indentures and delivered against payment
therefor pursuant to the terms described in the Registration Statement and as
specified by an Authorized Officer, or when issued upon valid exercise of Debt
Warrants that have been duly authorized by all requisite corporate action and
validly issued, will constitute valid and binding obligations of the Company,
enforceable in accordance with the terms of such series.
2. When the specified terms of a series of Debt Warrants have been
specified in a Warrant Agreement executed and delivered by an Authorized Officer
(as defined in the Financing Resolution), in substantially the form incorporated
by reference as Exhibit 4.16 to the Registration Statement, the Debt Warrants
established in such Warrant Agreement will have been duly authorized by all
requisite corporate action and, when executed and authenticated as specified in
such Warrant Agreement and delivered against payment therefor pursuant to the
terms described in the Registration Statement and as specified by an Authorized
Officer, will
<PAGE>
U.S. Bancorp
July 23, 1999
Page 3
constitute valid and binding obligations of the Company, enforceable in
accordance with the terms of such Debt Warrants.
3. When the specific terms of a series of Preferred Stock have been
specified in a Certificate of Designations duly adopted by the Securities
Committee (as defined in the Preferred Stock Resolution) of the Board of
Directors, in substantially the form incorporated by reference as Exhibit 4.18
to the Registration Statement, and such Certificate of Designations has been
duly filed with the Secretary of State of Delaware, such series of Preferred
Stock will have been duly authorized by all requisite corporate action and, upon
issuance, delivery and payment therefor as described in the Registration
Statement, will be validly issued, fully paid and nonassessable.
4. When the specific terms of a series of Depositary Shares have been
specified in a Deposit Agreement executed and delivered by an Authorized Officer
(as defined in the Preferred Stock Resolution), in substantially the form
incorporated by reference as Exhibit 4.19 to the Registration Statement, the
Depositary Shares established in such Deposit Agreement will have been duly
authorized by all requisite corporate action and, upon issuance, delivery and
payment therefor as described in the Registration Statement, will be validly
issued, fully paid and nonassessable.
5. When the specific terms of a series of the Junior Subordinated
Debentures have been specified in a Supplemental Indenture or an Officer's
Certificate, which has been executed and delivered to the Trustee by an
Authorized Officer (as defined in the Financing Resolution), such series of the
Junior Subordinated Debentures will have been duly authorized by all requisite
corporate action and, when executed and authenticated as specified in the
Junior Subordinated Indenture and delivered against payment therefor pursuant to
the terms described in the Registration Statement and as specified by an
Authorized Officer, will constitute valid and binding obligations of the
Company, enforceable in accordance with the terms of such series.
6. When the Guarantees have been duly authorized by all requisite
corporate action and, when executed and delivered as specified in the Guarantee
Agreements, in substantially the form filed as Exhibit 4.15 to the Registration
Statement, the Guarantees will constitute the valid and binding obligation of
the Company, enforceable in accordance with its terms.
The opinions set forth above are subject to the following qualifications
and exceptions:
(a) Our opinions in paragraphs 1, 2, 5 and 6 above are subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or other similar law of general application affecting creditors' rights.
<PAGE>
U.S. Bancorp
July 23, 1999
page 4
(b) Our opinions in paragraphs 1, 2, 5 and 6 above are subject to the
effect of general principles of equity, including (without limitation) concepts
of materiality, reasonableness, good faith and fair dealing, and other similar
doctrines affecting the enforceability of agreements generally (regardless of
whether considered in a proceeding in equity or at law).
(c) Our opinion in paragraph 6 above, insofar as it relates to
indemnification provisions, is subject to the effect of federal and state
securities laws and public policy relating thereto.
(d) In rendering the opinions set forth above, we have assumed that, at
the time of the authentication and delivery of a series of Securities, the
Resolutions referred to above will not have been modified or rescinded, there
will not have occurred any change in the law affecting the authorization,
execution, delivery, validity or enforceability of the Securities, the
Registration Statement will have been declared effective by the Commission and
will continue to be effective, none of the particular terms of a series of
Securities will violate any applicable law and neither the issuance and sale
thereof nor the compliance by the Company and the Trusts with the terms thereof
will result in a violation of any agreement or instrument then binding upon the
Company and the Trusts or any order of any court or governmental body having
jurisdiction over the Company and the Trusts.
(e) As of the date of this opinion, a judgment for money in an action
based on a debt security denominated in a foreign currency or currency unit in a
federal or State court in the United States ordinarily would be enforced in the
United States only in United States dollars. The date used to determine the rate
of conversion into United States dollars of the foreign currency or currency
unit in which a particular debt security is denominated will depend upon various
factors, including which court renders the judgment. Under Section 27 of the New
York Judiciary Law, a state court in the State of New York rendering a judgment
on a debt security would be required to render such judgment in the foreign
currency or currency unit in which such debt security is denominated, and such
judgment would be converted into United States dollars at the exchange rate
prevailing on the date of entry of the judgment.
(f) Minnesota Statutes S290.371, Subd. 4, provides that any corporation
required to file a Notice of Business Activities Report does not have a cause of
action upon which it may bring suit under Minnesota law unless the corporation
has filed a Notice of Business Activities Report and provides that the use of
the courts of the State of Minnesota for all contracts executed and all causes
of action that arose before the end of any period for which a corporation failed
to file a required report is precluded. Insofar as our opinion may relate to the
valid, binding and enforceable character of any agreement
<PAGE>
U.S. Bancorp
July 23, 1999
Page 5
under Minnesota law or in a Minnesota court, we have assumed that any party
seeking to enforce such agreement has at all times been, and will continue
at all times to be, exempt from the requirement of filing a Notice of
Business Activities Report or, if not exempt, has duly filed, and will
continue to duly file, all Notice of Business Activities Reports.
Our opinions expressed above are limited to the laws of the States
of Minnesota and New York, the Delaware General Corporation Law and the federal
laws of the United States of America.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Validity of Securities" contained in the Prospectuses included therein.
Dated: July 23, 1999
Very truly yours,
/s/ Dorsey & Whitney LLP
CFS
<PAGE>
EXHIBIT 5.2
[Richards, Layton & Finger, PA Letterhead]
July 23, 1999
USB Capital III
USB Capital IV
USB Capital V
c/o U.S. Bancorp
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Re: USB Capital III, USB Capital IV and USB Capital V
-------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for U.S. Bancorp, a Delaware
corporation (the "Company"), USB Capital III, a Delaware business trust ("Trust
III"), USB Capital IV, a Delaware business trust ("Trust IV"), and USB Capital
V, a Delaware business trust ("Trust V") (Trust III, Trust IV and Trust V are
hereinafter collectively referred to as the "Trusts" and sometimes hereinafter
individually referred to as a "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust III, as filed with the
Secretary of State on January 28, 1998;
(b) The Certificate of Trust of Trust IV, as filed with the Secretary
of State on January 28, 1998;
(c) The Certificate of Trust of Trust V, as filed with the Secretary
of State on January 28, 1998;
<PAGE>
USB Capital III
USB Capital IV
USB Capital V
July 23, 1999
Page 2
(d) The Trust Agreement of Trust III, dated as of January 22, 1998
among the Company and the trustees of Trust III named therein;
(e) The Trust Agreement of Trust IV, dated as of January 22, 1998
among the Company and the trustees of Trust IV named therein;
(f) The Trust Agreement of Trust V, dated as of January 22, 1998
among the Company and the trustees of Trust V named therein;
(g) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus with respect to the Trusts (the
"Prospectus"), relating to the Capital Securities of the Trusts representing
preferred beneficial interests in the Trusts (each, a "Capital Security" and
collectively, the "Capital Securities"), as filed by the Company and the Trusts
with the Securities and Exchange Commission on January 29, 1998;
(h) A form of Amended and Restated Trust Agreement for each of the
Trusts, to be entered into between the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (including Exhibits A and B thereto)
(collectively, the "Trust Agreements" and individually, a "Trust Agreement"),
attached as an exhibit to the Registration Statement; and
(I) A Certificate of Good Standing for each of the Trusts, dated July
21, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (i) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (i) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
<PAGE>
USB Capital III
USB Capital IV
USB Capital V
July 23, 1999
Page 3
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Trust Agreements will constitute the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of the applicable Trust, and that the Trust
Agreements and the Certificates of Trust will be in full force and effect and
will not be amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Capital Security is to be issued by the Trusts (collectively, the "Capital
Security Holders") of a Capital Security Certificate for such Capital Security
and the payment for such Capital Security, in accordance with the Trust
Agreements and the Registration Statement, and (vii) that the Capital Securities
are authenticated, issued and sold to the Capital Security Holders in accordance
with the Trust Agreements and the Registration Statement. We have not
participated in the preparation of the Registration Statement or the Prospectus
and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing
in good standing as a business trust under the Business Trust Act.
<PAGE>
USB Capital III
USB Capital IV
USB Capital V
July 23, 1999
Page 4
2. The Capital Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable beneficial interests in the assets of the applicable Trust.
3. The Capital Security Holders, as beneficial owners of the
applicable Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Capital
Security Holders may be obligated to make payments as set forth in the Trust
Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Validity of Securities" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, PA
EAM/sek
<PAGE>
Exhibit 12.1
Ratio of Fixed Charges and Preferred Stock Dividends
<TABLE>
<CAPTION>
Computation of Ratio of Earnings to Fixed Charges and Three Months Ended
Preferred Stock Dividends March 31, Year Ended December 31,
-------------------------------------------
1999 1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Earnings
1. Net income from continuing operations $ 366.8 $1,327.4 $ 838.5 $1,218.7
2. Applicable income taxes 206.4 766.5 552.2 725.7
------------------------------------------
3. Income before taxes (1 + 2) $ 573.2 $2,093.9 $1,390.7 $1,944.4
==========================================
4. Fixed charges:
a. Interest expense excluding interest on deposits $ 257.7 $ 955.8 $ 808.7 $ 702.5
b. Portion of rents representative of interest and amortization of debt expense 11.5 47.7 41.2 45.4
------------------------------------------
c. Fixed charges excluding interest on deposits (4a + 4b) 269.2 1,003.5 849.9 747.9
d. Interest on deposits 311.6 1,391.0 1,436.8 1,441.3
------------------------------------------
e. Fixed charges including interest on deposits (4c + 4d) $ 580.8 $2,394.5 $2,286.7 $2,189.2
==========================================
f. Preferred stock dividends $ -- $ -- $ 10.6 $ 18.4
g. Effective tax rate ( 2 / 3 ) 36.01% 36.61% 39.71% 37.32%
h. Preferred dividend factor on pretax basis (4f / 100% - 4g ) $ -- $ -- $ 17.6 $ 29.4
5. Amortization of interest capitalized $ -- $ -- $ -- $ --
6. Earnings excluding interest on deposits (3 + 4c + 5) 842.4 3,097.4 2,240.6 2,692.3
7. Earnings including interest on deposits (3 + 4e + 5) 1,154.0 4,488.4 3,677.4 4,133.6
8. Fixed charges excluding interest on deposits (4c) 269.2 1,003.5 849.9 747.9
9. Fixed charges including interest on deposits (4e) 580.8 2,394.5 2,286.7 2,189.2
10. Fixed charges and preferred dividends excluding interest on deposits (4c + 4h) 269.2 1,003.5 867.5 777.3
11. Fixed charges and preferred dividends including interest on deposits (4e + 4h) 580.8 2,394.5 2,304.3 2,218.6
Ratio of Earnings to Fixed Charges
12. Excluding interest on deposits (line 6 / line 8) 3.13 3.09 2.64 3.60
13. Including interest on deposits (line 7 / line 9) 1.99 1.87 1.61 1.89
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends
14. Excluding interest on deposits (line 6 / line 10) 3.13 3.09 2.58 3.46
15. Including interest on deposits (line 7 / line 11) 1.99 1.87 1.60 1.86
<CAPTION>
Year Ended December 31,
-------------------
1995 1994
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Earnings
1. Net income from continuing operations $ 897.1 $ 568.2
2. Applicable income taxes 523.9 311.5
-------------------
3. Income before taxes (1 + 2) $1,421.0 $ 879.7
===================
4. Fixed charges:
a. Interest expense excluding interest on deposits $ 681.4 $ 486.3
b. Portion of rents representative of interest and amortization of debt expense 46.6 48.7
-------------------
c. Fixed charges excluding interest on deposits (4a + 4b) 728.0 535.0
d. Interest on deposits 1,416.7 1,121.1
-------------------
e. Fixed charges including interest on deposits (4c + 4d) $2,144.7 $1,656.1
===================
f. Preferred stock dividends $ 19.7 $ 24.8
g. Effective tax rate ( 2 / 3 ) 36.87% 35.41%
h. Preferred dividend factor on pretax basis (4f / 100% - 4g ) $ 31.2 $ 38.4
5. Amortization of interest capitalized $ -- $ .1
6. Earnings excluding interest on deposits (3 + 4c + 5) 2,149.0 1,414.8
7. Earnings including interest on deposits (3 + 4e + 5) 3,565.7 2,535.9
8. Fixed charges excluding interest on deposits (4c) 728.0 535.0
9. Fixed charges including interest on deposits (4e) 2,144.7 1,656.1
10. Fixed charges and preferred dividends excluding interest on deposits (4c + 4h) 759.2 573.4
11. Fixed charges and preferred dividends including interest on deposits (4e + 4h) 2,175.9 1,694.5
Ratio of Earnings to Fixed Charges
12. Excluding interest on deposits (line 6 / line 8) 2.95 2.64
13. Including interest on deposits (line 7 / line 9) 1.66 1.53
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends
14. Excluding interest on deposits (line 6 / line 10) 2.83 2.47
15. Including interest on deposits (line 7 / line 11) 1.64 1.50
</TABLE>
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectuses of U.S. Bancorp for
the registration of Senior Notes, Subordinated Notes, Junior Subordinated Debt
Securities, Preferred Stock, Depositary Shares, Debt Warrants, Capital
Securities of USB Capital III, IV, and V and Guarantees of Capital Securities of
USB Capital III, IV, and V by U.S. Bancorp and to the incorporation by reference
therein of our report dated January 20, 1999, with respect to the consolidated
financial statements of U.S. Bancorp included in its Annual Report (Form 10-K)
for the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
Minneapolis, Minnesota
July 20, 1999
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Lee R. Mitau, Susan E. Lester and
Terrance R. Dolan, and each of them, his or her true and lawful attorneys-in-
fact and agents, each acting alone, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign a Registration Statement on Form S-3 of U.S.
Bancorp, and any and all amendments thereto, including post-effective
amendments, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, full power and
authority to do and perform to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, each acting alone, or the substitutes for such attorneys-in-
fact and agents, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
- --------- ----- ----
Chairman, President, Chief July 21, 1999
- ------------------------- Executive Officer and Director
John F. Grundhofer (principal executive officer)
Executive Vice President and July 21, 1999
- ------------------------- Chief Financial Officer
Susan E. Lester (principal financial officer)
Senior Vice President and July 21, 1999
- ------------------------- Controller
Terrance R. Dolan (principal accounting officer)
/s/ Linda L. Ahlers Director July 21, 1999
- -------------------------
Linda L. Ahlers
/s/ Harry L. Bettis Director July 21, 1999
- -------------------------
Harry L. Bettis
/s/ Arthur D. Collins, Jr. Director July 21, 1999
- -------------------------
Arthur D. Collins, Jr.
/s/ Peter H. Coors Director July 21, 1999
- -------------------------
Peter H. Coors
<PAGE>
/s/ Robert L. Dryden Director July 21, 1999
- -------------------------
Robert L. Dryden
/s/ Joshua Green III Director July 21, 1999
- -------------------------
Joshua Green III
/s/ Delbert W. Johnson Director July 21, 1999
- -------------------------
Delbert W. Johnson
/s/ Joel W. Johnson Director July 21, 1999
- -------------------------
Joel W. Johnson
/s/ Jerry W. Levin Director July 21, 1999
- -------------------------
Jerry W. Levin
/s/ Edward J. Phillips Director July 21, 1999
- -------------------------
Edward J. Phillips
/s/ Paul A. Redmond Director July 21, 1999
- -------------------------
Paul A. Redmond
/s/ Richard G. Reiten Director July 21, 1999
- -------------------------
Richard G. Reiten
/s/ S. Walter Richey Director July 21, 1999
- -------------------------
S. Walter Richey
/s/ Warren R. Staley Director July 21, 1999
- -------------------------
Warren R. Staley
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
_________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
399 Park Avenue, New York, New York 13-5266470
(Address of principal executive office) (I.R.S. employer identification no.)
10043
(Zip Code)
_________________________
U.S. Bancorp
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
601 Second Avenue South
Minneapolis, Minnesota 55402
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement No.
2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No.
2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1
to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
<PAGE>
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of March 31, 1999- attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
___________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 23rd day
of July, 1999.
CITIBANK, N.A.
By /s/ [SIGNATURE ILLEGIBLE]^^
---------------------------
(Authorized Officer)
<PAGE>
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of March 31, 1999- attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 23rd day
of July, 1999.
CITIBANK, N.A.
By /s/ Florence Mills
-----------------------
Florence Mills
Senior Trust Officer
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business on March 31,
1999, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
ASSETS
<TABLE>
<CAPTION>
Thousands
of dollars
<S> <C>
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin................. $ 7,997,000
Interest-bearing balances............. 12,201,000
Held-to-maturity securities............. 0
Available-for-sale securities........... 36,050,000
Federal funds sold and
securities purchased under
agreements to resell.................. 8,658,000
Loans and lease financing
receivables:
Loans and Leases, net of un-
earned income......................... $189,886,000
LESS: Allowance for loan
and lease losses...................... 4,674,000
Loans and leases, net of un-
earned income, allowance,
and reserve........................... $185,212,000
Trading assets.......................... 31,195,000
Premises and fixed assets (includ-
ing capitalized leases)............... 3,911,000
Other real estate owned................. 400,000
Investments in unconsolidated
subsidiaries and associated com-
panies................................ 1,128,000
Customers' liability to this bank
on acceptances outstanding............ 1,426,000
Intangible assets....................... 3,560,000
Other assets............................ 12,578,000
------------
TOTAL ASSETS............................ $304,316,000
============
LIABILITIES
Deposits:
In domestic offices................... $ 40,444,000
Noninterest-
bearing.................... $13,607,000
Interest-
bearing.................... 26,837,000
===========
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs.................................. 173,560,000
Noninterest-
bearing.................... 11,287,000
Interest-
bearing.................... 162,273,000
===========
Federal funds purchased and
securities sold under agree-
ments to repurchase................... 6,977,000
Trading liabilities..................... 25,422,000
Other borrowed money (includes
mortgage indebtedness and
obligations under capitalized
leases):
With a remaining maturity of one
year or less.......................... 11,454,000
With a remaining maturity of more
than one year through three years..... 1,569,000
With a remaining maturity of more
than three years...................... 2,156,000
Bank's liability on acceptances ex-
ecuted and outstanding................ 1,500,000
Subordinated notes and
debentures............................ 6,600,000
Other liabilities....................... 14,406,000
------------
TOTAL LIABILITIES....................... $284,088,000
============
EQUITY CAPITAL
Perpetual preferred stock
and related surplus................... 0
Common stock............................ $ 751,000
Surplus................................. 9,524,000
Undivided profits and capital re-
serves................................ 10,651,000
Net unrealized holding gains (losses)
on available-for-sale securities...... 31,000
Accumulated net gains (losses)
on cash flow hedges................... 0
Cumulative foreign currency
translation adjustments............... (729,000)
------------
TOTAL EQUITY CAPITAL.................... $ 20,228,000
============
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL........................ $304,316,000
============
</TABLE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
<PAGE>
EXHIBIT 25.2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
U.S. BANCORP
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
(State of incorporation) (I.R.S. employer identification no.)
601 Second Avenue South
Minneapolis, Minesota 55403-4302
(Address of principal executive offices) (Zip Code)
Junior Subordinated Debentures of U.S. Bancorp
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an affiliate
of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility
and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 16th day
of July, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ James P. Lawler By: /s/ Donald G. MacKelcan
------------------------- ------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold,
<PAGE>
purchase, convey, mortgage or otherwise deal in real and personal
estate and property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws not
inconsistent with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of debt, to
receive deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of exchange,
and generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other
2
<PAGE>
instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit,
order, or decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority, in the
State of Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or authority
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as security for
the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of
3
<PAGE>
interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual owners
thereof, including the right to vote thereon; to invest and deal in
and with any of the moneys of the Corporation upon such securities
and in such manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds and secure
the same by pledges or deeds of trust or mortgages of or upon the
whole or any part of the property held or owned by the Corporation,
and to sell and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and convey
real and personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or
4
<PAGE>
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any
foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes and
powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the
5
<PAGE>
foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article
6
<PAGE>
Fourth), if any, shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of section (b) of this Article Fourth),
and subject further to any conditions which may be fixed in accordance
with the provisions of section (b) of this Article Fourth, then and not
otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of
Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of
7
<PAGE>
Directors in the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required
for the issuance by the Board of Directors of any other series of
Preferred Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior to, or on
a parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article Fourth that the
consent of the holders of a majority (or such greater proportion as shall
be therein fixed) of the outstanding shares of such series voting thereon
shall be required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class
8
<PAGE>
shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the directors,
may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors.
At such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for which
such director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to
9
<PAGE>
the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as
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one class).
Fourteenth: - Meetings of the Directors may be held outside of the State of
Delaware at such places as may be from time to time designated by the Board, and
the Directors may keep the books of the Company outside of the State of Delaware
at such places as may be from time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this Article
Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to or
with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of related transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder, or
any Affiliate of any Interested Stockholder,
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shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any one
or more of clauses (A) through (E) of paragraph 1 of the section
(a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
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(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or
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transfer of securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
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ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time
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for that purpose, and any provisions of these By-Laws (other than this Section)
and any resolutions which are contrary to the provisions of this Section or to
the provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim Executive
Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
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Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
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ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
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Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a
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transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
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ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was
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serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 16, 1999 By: /s/ Donald G. MacKelcan
---------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has not
been approved by any state banking authorities. Refer to your
appropriate state banking authorities for your state
publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------- -----------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1999.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............................ 196,035
Interest-bearing balances...................................................... 0
Held-to-maturity securities......................................................... 44,909
Available-for-sale securities....................................................... 1,396,028
Federal funds sold and securities purchased under agreements to resell.............. 127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income....................................... 4,176,290
LESS: Allowance for loan and lease losses..................................... 68,543
LESS: Allocated transfer risk reserve......................................... 0
Loans and leases, net of unearned income, allowance, and reserve............... 4,107,747
Assets held in trading accounts..................................................... 0
Premises and fixed assets (including capitalized leases)............................ 139,843
Other real estate owned............................................................. 1,055
Investments in unconsolidated subsidiaries and associated companies................. 1,225
Customers' liability to this bank on acceptances outstanding........................ 0
Intangible assets................................................................... 5,265
Other assets........................................................................ 99,075
Total assets........................................................................ 6,118,520
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices 4,332,124
Noninterest-bearing.................................................... 959,777
Interest-bearing....................................................... 3,372,347
Federal funds purchased and Securities sold under agreements to repurchase... 432,395
Demand notes issued to the U.S. Treasury..................................... 28,906
Trading liabilities (from Schedule RC-D)..................................... 0
Other borrowed money:........................................................ ///////
With original maturity of one year or less.............................. 715,000
With original maturity of more than one year............................ 43,000
Bank's liability on acceptances executed and outstanding..................... 0
Subordinated notes and debentures............................................ 0
Other liabilities (from Schedule RC-G)....................................... 93,311
Total liabilities............................................................ 5,644,736
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................ 0
Common Stock................................................................. 500
Surplus (exclude all surplus related to preferred stock)..................... 62,118
Undivided profits and capital reserves....................................... 408,053
Net unrealized holding gains (losses) on available-for-sale securities....... 3,113
Total equity capital......................................................... 473,784
Total liabilities, limited-life preferred stock, and equity capital.......... 6,118,520
</TABLE>
2
<PAGE>
EXHIBIT 25.3
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
U.S. BANCORP
USB CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
Delaware Applied For
(State of incorporation) (I.R.S. employer identification no.)
601 Second Avenue South
Minneapolis, Minesota 55403-4302
(Address of principal executive offices) (Zip Code)
Capital Securities of USB Capital III
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 16th day
of July, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ James P. Lawler By: /s/ Donald G. MacKelcan
------------------- -----------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address is
Rodney Square North, in said City. In addition to such principal office,
the said corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New Castle
County, Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of business as
may be authorized from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold,
<PAGE>
purchase, convey, mortgage or otherwise deal in real and personal
estate and property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws not
inconsistent with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of debt, to
receive deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of exchange,
and generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation, association,
state or municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two parties,
and in like manner may act as Treasurer of any corporation or
municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
2
<PAGE>
instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit, order,
or decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any
of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of
3
<PAGE>
interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual owners
thereof, including the right to vote thereon; to invest and deal in
and with any of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from time to time
to vary or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon the whole or
any part of the property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business of
investment and to the extent authorized by law, to lease, purchase,
hold, sell, assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or
4
<PAGE>
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any foreign
country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or restricted
by reference to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this paragraph
shall be regarded as independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the
5
<PAGE>
foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or winding-
up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section (b)
of this Article
6
<PAGE>
Fourth), if any, shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article Fourth), and
subject further to any conditions which may be fixed in accordance with the
provisions of section (b) of this Article Fourth, then and not otherwise
the holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable for stock
of the Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of stock or
securities convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may
be deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of
7
<PAGE>
Directors in the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of Preferred
Stock as are from time to time outstanding shall not be required for the
issuance by the Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such other series
shall be fixed by the Board of Directors as senior to, or on a parity with,
the powers, preferences and rights of such outstanding series, or any of
them; provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time to
time by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be conducted
and managed by a Board of Directors. The number of directors constituting
the entire Board shall be not less than five nor more than twenty-five as
fixed from time to time by vote of a majority of the whole Board, provided,
however, that the number of directors shall not be reduced so as to shorten
the term of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be twenty-four
until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the first
class shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class
8
<PAGE>
shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be elected
to hold office for a term expiring at the third succeeding annual meeting.
Any vacancies in the Board of Directors for any reason, and any newly
created directorships resulting from any increase in the directors, may be
filled by the Board of Directors, acting by a majority of the directors
then in office, although less than a quorum, and any directors so chosen
shall hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to hold
office until the next election of the class for which such director shall
have been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any time
without cause, but only by the affirmative vote of the holders of two-
thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on behalf
of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such nominee
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to
9
<PAGE>
the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find necessary
or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved
March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be adopted only by
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as
10
<PAGE>
one class).
Fourteenth: - Meetings of the Directors may be held outside of the State of
Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder, or any Affiliate of any Interested
Stockholder,
11
<PAGE>
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any one
or more of clauses (A) through (E) of paragraph 1 of the section
(a).
(b) The provisions of section (a) of this Article Fifteenth shall not
be applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by
law and any other provisions of the Charter or Act of Incorporation of
By-Laws if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10%
of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
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<PAGE>
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or
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transfer of securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware General
Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
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<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time
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<PAGE>
for that purpose, and any provisions of these By-Laws (other than this Section)
and any resolutions which are contrary to the provisions of this Section or to
the provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim Executive
Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
4
<PAGE>
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
6
<PAGE>
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a
7
<PAGE>
transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
8
<PAGE>
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was
9
<PAGE>
serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
-------- -------
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall
not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Charter or Act of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
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EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 16, 1999 By: /s/ Donald G. MacKelcan
--------------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking
authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- --------------
Name of Bank City
in the State of DELAWARE , at the close of business on March 31, 1999.
-----------
ASSETS
<TABLE>
<CAPTION>
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................ 196,035
Interest-bearing balances.......................................... 0
Held-to-maturity securities............................................. 44,909
Available-for-sale securities........................................... 1,396,028
Federal funds sold and securities purchased under agreements to resell.. 127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income........................... 4,176,290
LESS: Allowance for loan and lease losses......................... 68,543
LESS: Allocated transfer risk reserve............................. 0
Loans and leases, net of unearned income, allowance, and reserve... 4,107,747
Assets held in trading accounts......................................... 0
Premises and fixed assets (including capitalized leases)................ 139,843
Other real estate owned................................................. 1,055
Investments in unconsolidated subsidiaries and associated companies..... 1,225
Customers' liability to this bank on acceptances outstanding............ 0
Intangible assets....................................................... 5,265
Other assets............................................................ 99,075
Total assets............................................................ 6,118,520
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices......................................................... 4,332,124
Noninterest-bearing.................................................... 959,777
Interest-bearing....................................................... 3,372,347
Federal funds purchased and Securities sold under agreements to repurchase.. 432,395
Demand notes issued to the U.S. Treasury.................................... 28,906
Trading liabilities (from Schedule RC-D).................................... 0
Other borrowed money:....................................................... ///////
With original maturity of one year or less............................. 715,000
With original maturity of more than one year........................... 43,000
Bank's liability on acceptances executed and outstanding.................... 0
Subordinated notes and debentures........................................... 0
Other liabilities (from Schedule RC-G)...................................... 93,311
Total liabilities........................................................... 5,644,736
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................... 0
Common Stock................................................................ 500
Surplus (exclude all surplus related to preferred stock).................... 62,118
Undivided profits and capital reserves...................................... 408,053
Net unrealized holding gains (losses) on available-for-sale securities...... 3,113
Total equity capital........................................................ 473,784
Total liabilities, limited-life preferred stock, and equity capital......... 6,118,520
</TABLE>
2
<PAGE>
EXHIBIT 25.4
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
U.S. BANCORP
USB CAPITAL IV
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
Delaware Applied For
(State of incorporation) (I.R.S. employer identification no.)
601 Second Avenue South
Minneapolis, Minesota 55403-4302
(Address of principal executive offices) (Zip Code)
Capital Securities of USB Capital IV
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 16th day
of July, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ James P. Lawler By: /s/ Donald G. MacKelcan
---------------------- -----------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at pleasure,
to hold,
<PAGE>
purchase, convey, mortgage or otherwise deal in real and personal estate
and property, and to appoint such officers and agents as the business of
the Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to discount
bills, notes or other evidences of debt, to receive deposits of money, or
securities for money, to buy gold and silver bullion and foreign coins, to
buy and sell bills of exchange, and generally to use, exercise and enjoy
all the powers, rights, privileges and franchises incident to a
corporation which are proper or necessary for the transaction of the
business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real or
personal, against any claim or claims, adverse to his interest therein,
and to prepare and give certificates of title for any lands or premises in
the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the purchase,
sale, management and disposal of property of all descriptions, and to
prepare and execute all papers which may be necessary or proper in such
business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description, and
to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds,
bonds and any and all other personal property of every sort and kind, from
executors, administrators, guardians, public officers, courts, receivers,
assignees, trustees, and from all fiduciaries, and from all other persons
and individuals, and from all corporations whether state, municipal,
corporate or private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering, issuing,
certificating, countersigning, transferring or underwriting the stock,
bonds or other obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund therefor on such
terms as may be agreed upon between the two parties, and in like manner
may act as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other
2
<PAGE>
instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract or
agreement, and the fidelity of persons holding places of responsibility or
trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons, corporation,
or corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be entered
in any court of record within the State of Delaware or elsewhere, or which
may now or hereafter be required by any law, judge, officer or court in
the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons, corporations,
court, officer, or authority, in the State of Delaware or elsewhere; and
whenever this Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to give
bond with surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon it by such
appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities, obligations,
contracts and evidences of indebtedness, of any private, public or
municipal corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or country; to receive,
collect, receipt for, and dispose of
3
<PAGE>
interest, dividends and income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held and owned by
it, and to exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations, contracts,
evidences of indebtedness and other property, any and all the rights,
powers and privileges of individual owners thereof, including the right to
vote thereon; to invest and deal in and with any of the moneys of the
Corporation upon such securities and in such manner as it may think fit
and proper, and from time to time to vary or realize such investments; to
issue bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the Board of
Directors shall determine, and in the promotion of its said corporate
business of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and convey real
and personal property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the
laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in cash,
stock of this Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so purchased; to conduct
in any lawful manner the whole or any part of any business so acquired,
and to exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit as
to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or
4
<PAGE>
transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations
and businesses, without restriction to the same extent as natural persons
might or could do, to purchase or otherwise acquire, to hold, own, to
mortgage, sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State, District,
Territory or Colony of the United States, and in any foreign country or
place.
(6) It is the intention that the objects, purposes and powers specified
and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the
5
<PAGE>
foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors) or
decreased (but not below the number of shares thereof then outstanding)
from time to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be paid,
the extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other class of stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of any
other class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or winding-up,
of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or together
with other series of Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation if there shall
have been a default in the payment of dividends on any one or more series
of Preferred Stock or under such circumstances and on such conditions as
the Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of section (b) of this
Article
6
<PAGE>
Fourth), if any, shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of section (b) of this Article Fourth),
and subject further to any conditions which may be fixed in accordance
with the provisions of section (b) of this Article Fourth, then and not
otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of
Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of
7
<PAGE>
Directors in the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required
for the issuance by the Board of Directors of any other series of
Preferred Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior to, or on
a parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article Fourth that the
consent of the holders of a majority (or such greater proportion as shall
be therein fixed) of the outstanding shares of such series voting thereon
shall be required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class
8
<PAGE>
shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the directors,
may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors.
At such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for which
such director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to
9
<PAGE>
the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as
10
<PAGE>
one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
11
<PAGE>
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
12
<PAGE>
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or
13
<PAGE>
transfer of securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
14
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
2
<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be held
at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the provisions of Article III of these By-Laws; and if less than three
members of the Trust Committee is constituted immediately prior to such disaster
shall be available for the transaction of its business, such Executive Committee
shall also be empowered to exercise all of the powers reserved to the Trust
Committee under Article III Section 2 hereof. In the event of the
unavailability, at such time, of a minimum of two members of such Executive
Committee, any three available directors shall constitute the Executive
Committee for the full conduct and management of the affairs and business of the
Company in accordance with the foregoing provisions of this Section. This By-Law
shall be subject to implementation by Resolutions of the Board of Directors
presently existing or hereafter passed from time to time
3
<PAGE>
for that purpose, and any provisions of these By-Laws (other than this Section)
and any resolutions which are contrary to the provisions of this Section or to
the provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim Executive
Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor employed
for that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
4
<PAGE>
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
6
<PAGE>
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a
7
<PAGE>
transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
8
<PAGE>
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was
9
<PAGE>
serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
-------- -------
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 16, 1999 By: /s/ Donald G. MacKelcan
--------------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking
authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- ---------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1999.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.................................. 196,035
Interest-bearing balances............................................................ 0
Held-to-maturity securities............................................................... 44,909
Available-for-sale securities............................................................. 1,396,028
Federal funds sold and securities purchased under agreements to resell.................... 127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income............. 4,176,290
LESS: Allowance for loan and lease losses...............68,543
LESS: Allocated transfer risk reserve........................0
Loans and leases, net of unearned income, allowance, and reserve..................... 4,107,747
Assets held in trading accounts........................................................... 0
Premises and fixed assets (including capitalized leases).................................. 139,843
Other real estate owned................................................................... 1,055
Investments in unconsolidated subsidiaries and associated companies....................... 1,225
Customers' liability to this bank on acceptances outstanding.............................. 0
Intangible assets......................................................................... 5,265
Other assets.............................................................................. 99,075
Total assets.............................................................................. 6,118,520
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................... 4,332,124
Noninterest-bearing..................................................... 959,777
Interest-bearing........................................................ 3,372,347
Federal funds purchased and Securities sold under agreements to repurchase... 432,395
Demand notes issued to the U.S. Treasury..................................... 28,906
Trading liabilities (from Schedule RC-D)..................................... 0
Other borrowed money:........................................................ ///////
With original maturity of one year or less.............................. 715,000
With original maturity of more than one year............................ 43,000
Bank's liability on acceptances executed and outstanding..................... 0
Subordinated notes and debentures............................................ 0
Other liabilities (from Schedule RC-G)....................................... 93,311
Total liabilities............................................................ 5,644,736
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................ 0
Common Stock................................................................. 500
Surplus (exclude all surplus related to preferred stock)..................... 62,118
Undivided profits and capital reserves....................................... 408,053
Net unrealized holding gains (losses) on available-for-sale securities....... 3,113
Total equity capital......................................................... 473,784
Total liabilities, limited-life preferred stock, and equity capital.......... 6,118,520
</TABLE>
<PAGE>
EXHIBIT 25.5
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
U.S. BANCORP
USB CAPITAL V
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
Delaware Applied For
(State of incorporation) (I.R.S. employer identification no.)
601 Second Avenue South
Minneapolis, Minesota 55403-4302
(Address of principal executive offices) (Zip Code)
Capital Securities of USB Capital V
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee .
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 16th day
of July, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ James P. Lawler By: /s/ Donald G. MacKelcan
----------------------- -----------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold,
<PAGE>
purchase, convey, mortgage or otherwise deal in real and personal
estate and property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws not
inconsistent with the Constitution or laws of the United States or of this
State, to discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver bullion
and foreign coins, to buy and sell bills of exchange, and generally to
use, exercise and enjoy all the powers, rights, privileges and franchises
incident to a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real or
personal, against any claim or claims, adverse to his interest therein,
and to prepare and give certificates of title for any lands or premises in
the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the purchase,
sale, management and disposal of property of all descriptions, and to
prepare and execute all papers which may be necessary or proper in such
business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description, and
to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries, and from all
other persons and individuals, and from all corporations whether state,
municipal, corporate or private, and to rent boxes, safes, vaults and
other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting the
stock, bonds or other obligations of any corporation, association, state
or municipality, and may receive and manage any sinking fund therefor on
such terms as may be agreed upon between the two parties, and in like
manner may act as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other
2
<PAGE>
instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of responsibility
or trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons, corporation,
or corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be entered
in any court of record within the State of Delaware or elsewhere, or which
may now or hereafter be required by any law, judge, officer or court in
the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust capacity
in the receiving, holding, managing, and disposing of any and all estates
and property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State of Delaware or
elsewhere; and whenever this Corporation is so appointed by any person,
corporation, court, officer or authority such trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity, it shall
not be required to give bond with surety, but its capital stock shall be
taken and held as security for the performance of the duties devolving
upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts and
evidences of indebtedness, of any private, public or municipal corporation
within and without the State of Delaware, or of the Government of the
United States, or of any state, territory, colony, or possession thereof,
or of any foreign government or country; to receive, collect, receipt for,
and dispose of
3
<PAGE>
interest, dividends and income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held and owned by
it, and to exercise in respect of all such bonds, mortgages, debentures,
notes, shares of capital stock, securities, obligations, contracts,
evidences of indebtedness and other property, any and all the rights,
powers and privileges of individual owners thereof, including the right to
vote thereon; to invest and deal in and with any of the moneys of the
Corporation upon such securities and in such manner as it may think fit
and proper, and from time to time to vary or realize such investments; to
issue bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the Board of
Directors shall determine, and in the promotion of its said corporate
business of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and convey real
and personal property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the
laws of the State of Delaware, it is hereby expressly provided that the said
Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in cash,
stock of this Corporation, bonds or otherwise; to hold or in any manner to
dispose of the whole or any part of the property so purchased; to conduct
in any lawful manner the whole or any part of any business so acquired,
and to exercise all the powers necessary or convenient in and about the
conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without limit
as to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or
4
<PAGE>
transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations
and businesses, without restriction to the same extent as natural persons
might or could do, to purchase or otherwise acquire, to hold, own, to
mortgage, sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State, District,
Territory or Colony of the United States, and in any foreign country or
place.
(6) It is the intention that the objects, purposes and powers specified
and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00
per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors each
of said series to be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be cumulative, if
made cumulative. The voting powers and the preferences and relative,
participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to the
provisions of subparagraph 1 of Paragraph (c) of this Article Fourth, the
Board of Directors of the Corporation is hereby expressly granted authority to
fix by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights, and
the qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the
5
<PAGE>
foregoing, the following:
(1) The distinctive designation of, and the number of shares of Preferred
Stock which shall constitute such series, which number may be increased
(except where otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then outstanding) from time to
time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which,
dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other class of stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series
to convert the same into or exchange the same for, shares of any other
class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series
upon the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred
Stock which may, without limiting the generality of the foregoing include
the right, voting as a series or by itself or together with other series
of Preferred Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series of Preferred
Stock or under such circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of section (b) of
this Article
6
<PAGE>
Fourth), if any, shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting aside
of sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article Fourth), and
subject further to any conditions which may be fixed in accordance with the
provisions of section (b) of this Article Fourth, then and not otherwise the
holders of Common Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any, (fixed
in accordance with the provisions of section (b) of this Article Fourth),
to be distributed to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to receive all of the remaining assets of the
Corporation, tangible and intangible, of whatever kind available for
distribution to stockholders ratably in proportion to the number of shares
of Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder of
Common Stock shall have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or series, but
any such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of Preferred
Stock in relation to the relative powers, preferences and rights of each other
series of Preferred Stock shall, in each case, be as fixed from time to time
by the Board of
7
<PAGE>
Directors in the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required
for the issuance by the Board of Directors of any other series of
Preferred Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior to, or on
a parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article Fourth that the
consent of the holders of a majority (or such greater proportion as shall
be therein fixed) of the outstanding shares of such series voting thereon
shall be required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class
8
<PAGE>
shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the directors,
may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors.
At such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for which
such director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to
9
<PAGE>
the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as
10
<PAGE>
one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder, or any Affiliate of any Interested
Stockholder,
11
<PAGE>
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
12
<PAGE>
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or
13
<PAGE>
transfer of securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
14
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
2
<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time
3
<PAGE>
for that purpose, and any provisions of these By-Laws (other than this Section)
and any resolutions which are contrary to the provisions of this Section or to
the provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim Executive
Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
4
<PAGE>
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
6
<PAGE>
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a
7
<PAGE>
transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
8
<PAGE>
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was
9
<PAGE>
serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided, however,
-------- -------
that the payment of expenses incurred by a Director officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall
not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Charter or Act of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 16, 1999 By: /s/ Donald G. MacKelcan
------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- --------------
Name of Bank City
in the State of DELAWARE , at the close of business on March 31, 1999.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............................ 196,035
Interest-bearing balances...................................................... 0
Held-to-maturity securities......................................................... 44,909
Available-for-sale securities....................................................... 1,396,028
Federal funds sold and securities purchased under agreements to resell.............. 127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income....................................... 4,176,290
LESS: Allowance for loan and lease losses..................................... 68,543
LESS: Allocated transfer risk reserve......................................... 0
Loans and leases, net of unearned income, allowance, and reserve............... 4,107,747
Assets held in trading accounts..................................................... 0
Premises and fixed assets (including capitalized leases)............................ 139,843
Other real estate owned............................................................. 1,055
Investments in unconsolidated subsidiaries and associated companies................. 1,225
Customers' liability to this bank on acceptances outstanding........................ 0
Intangible assets................................................................... 5,265
Other assets........................................................................ 99,075
Total assets........................................................................ 6,118,520
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.................................................................. 4,332,124
Noninterest-bearing............................................................. 959,777
Interest-bearing................................................................ 3,372,347
Federal funds purchased and Securities sold under agreements to repurchase........... 432,395
Demand notes issued to the U.S. Treasury............................................. 28,906
Trading liabilities (from Schedule RC-D)............................................. 0
Other borrowed money:................................................................ ///////
With original maturity of one year or less...................................... 715,000
With original maturity of more than one year.................................... 43,000
Bank's liability on acceptances executed and outstanding............................. 0
Subordinated notes and debentures.................................................... 0
Other liabilities (from Schedule RC-G)............................................... 93,311
Total liabilities.................................................................... 5,644,736
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................ 0
Common Stock......................................................................... 500
Surplus (exclude all surplus related to preferred stock)............................. 62,118
Undivided profits and capital reserves............................................... 408,053
Net unrealized holding gains (losses) on available-for-sale securities............... 3,113
Total equity capital................................................................. 473,784
Total liabilities, limited-life preferred stock, and equity capital.................. 6,118,520
</TABLE>
2
<PAGE>
EXHIBIT 25.6
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
U.S. BANCORP
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
(State of incorporation) (I.R.S. employer identification no.)
601 Second Avenue South
Minneapolis, Minesota 55403-4302
(Address of principal executive offices) (Zip Code)
Guarantee of Capital Securities of USB Capital III by U.S. Bancorp
(Title of the indenture securities)
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor is
not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 16th day
of July, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ James P. Lawler By: /s/ Donald G. MacKelcan
------------------------------- ---------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
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Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold,
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purchase, convey, mortgage or otherwise deal in real and personal
estate and property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws not
inconsistent with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of debt, to
receive deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of exchange,
and generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other
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instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit,
order, or decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or hereafter be
required by any law, judge, officer or court in the State of Delaware
or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator, guardian or bailee
by any persons, corporations, court, officer, or authority, in the
State of Delaware or elsewhere; and whenever this Corporation is so
appointed by any person, corporation, court, officer or authority
such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any
other trust capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as security for
the performance of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of
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interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual owners
thereof, including the right to vote thereon; to invest and deal in
and with any of the moneys of the Corporation upon such securities
and in such manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds and secure
the same by pledges or deeds of trust or mortgages of or upon the
whole or any part of the property held or owned by the Corporation,
and to sell and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said corporate business
of investment and to the extent authorized by law, to lease,
purchase, hold, sell, assign, transfer, pledge, mortgage and convey
real and personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or
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transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any
foreign country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of this
paragraph shall be regarded as independent objects, purposes and
powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the
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foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article
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Fourth), if any, shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of section (b) of this Article Fourth),
and subject further to any conditions which may be fixed in accordance
with the provisions of section (b) of this Article Fourth, then and not
otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of
Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of
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Directors in the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required
for the issuance by the Board of Directors of any other series of
Preferred Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior to, or on
a parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article Fourth that the
consent of the holders of a majority (or such greater proportion as shall
be therein fixed) of the outstanding shares of such series voting thereon
shall be required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class
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shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the directors,
may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors.
At such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for which
such director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to
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the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as
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one class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
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shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
12
<PAGE>
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or
13
<PAGE>
transfer of securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
14
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall be
as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in charge
of such of the departments or division of the Company as it may deem advisable.
2
<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time
3
<PAGE>
for that purpose, and any provisions of these By-Laws (other than this Section)
and any resolutions which are contrary to the provisions of this Section or to
the provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim Executive
Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
4
<PAGE>
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to the
office of the President conferred or imposed upon him by statute or assigned to
him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated by
the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
6
<PAGE>
Section 7. The Treasurer shall have general supervision over all assets and
liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general supervision
over the internal operations of the Company, including accounting, and shall
render to the Board of Directors at appropriate times a report relating to the
general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in charge
of the Audit Division of the Company with such title as the Board of Directors
shall prescribe, shall report to and be directly responsible only to the Board
of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a
7
<PAGE>
transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
8
<PAGE>
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was
9
<PAGE>
serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending
any proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall
not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Charter or Act of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection hereunder of
any person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 16, 1999 By: /s/ Donald G. MacKelcan
------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved by
any state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------- --------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1999.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.................. 196,035
Interest-bearing balances............................................ 0
Held-to-maturity securities............................................... 44,909
Available-for-sale securities............................................. 1,396,028
Federal funds sold and securities purchased under agreements to resell.... 127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income............................. 4,176,290
LESS: Allowance for loan and lease losses........................... 68,543
LESS: Allocated transfer risk reserve............................... 0
Loans and leases, net of unearned income, allowance, and reserve..... 4,107,747
Assets held in trading accounts........................................... 0
Premises and fixed assets (including capitalized leases).................. 139,843
Other real estate owned................................................... 1,055
Investments in unconsolidated subsidiaries and associated companies....... 1,225
Customers' liability to this bank on acceptances outstanding.............. 0
Intangible assets......................................................... 5,265
Other assets.............................................................. 99,075
Total assets.............................................................. 6,118,520
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices....................................................... 4,332,124
Noninterest-bearing.................................................. 959,777
Interest-bearing..................................................... 3,372,347
Federal funds purchased and Securities sold under agreements to
repurchase........................................................... 432,395
Demand notes issued to the U.S. Treasury.................................. 28,906
Trading liabilities (from Schedule RC-D).................................. 0
Other borrowed money:..................................................... ///////
With original maturity of one year or less........................... 715,000
With original maturity of more than one year......................... 43,000
Bank's liability on acceptances executed and outstanding.................. 0
Subordinated notes and debentures......................................... 0
Other liabilities (from Schedule RC-G).................................... 93,311
Total liabilities......................................................... 5,644,736
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common Stock.............................................................. 500
Surplus (exclude all surplus related to preferred stock).................. 62,118
Undivided profits and capital reserves.................................... 408,053
Net unrealized holding gains (losses) on available-for-sale securities.... 3,113
Total equity capital...................................................... 473,784
Total liabilities, limited-life preferred stock, and equity capital....... 6,118,520
</TABLE>
2
<PAGE>
EXHIBIT 25.7
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
---
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
U.S. BANCORP
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
(State of incorporation) (I.R.S. employer identification no.)
601 Second Avenue South
Minneapolis, Minesota 55403-4302
(Address of principal executive offices) (Zip Code)
Guarantee of Capital Securities of USB Capital IV by U.S. Bancorp
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 16th day
of July, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ James P. Lawler By: /s/ Donald G. MacKelcan
------------------- -----------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address is
Rodney Square North, in said City. In addition to such principal office,
the said corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New Castle
County, Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of business as
may be authorized from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold,
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purchase, convey, mortgage or otherwise deal in real and personal
estate and property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws not
inconsistent with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of debt, to
receive deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of exchange,
and generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation, association,
state or municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two parties,
and in like manner may act as Treasurer of any corporation or
municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
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instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit, order,
or decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any
of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of
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interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual owners
thereof, including the right to vote thereon; to invest and deal in
and with any of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from time to time
to vary or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon the whole or
any part of the property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business of
investment and to the extent authorized by law, to lease, purchase,
hold, sell, assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount, execute
and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or
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transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any foreign
country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or restricted
by reference to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this paragraph
shall be regarded as independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the
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foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or winding-
up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section (b)
of this Article
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Fourth), if any, shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts (fixed in
accordance with the provisions of section (b) of this Article Fourth), and
subject further to any conditions which may be fixed in accordance with the
provisions of section (b) of this Article Fourth, then and not otherwise
the holders of Common Stock shall be entitled to receive such dividends as
may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable for stock
of the Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of stock or
securities convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may
be deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of
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Directors in the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required
for the issuance by the Board of Directors of any other series of
Preferred Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior to, or on
a parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article Fourth that the
consent of the holders of a majority (or such greater proportion as shall
be therein fixed) of the outstanding shares of such series voting thereon
shall be required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class
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shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the directors,
may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors.
At such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for which
such director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to
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the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as
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one class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
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shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any one
or more of clauses (A) through (E) of paragraph 1 of the section
(a).
(b) The provisions of section (a) of this Article Fifteenth shall not
be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10%
of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
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(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or
13
<PAGE>
transfer of securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
14
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
2
<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time
3
<PAGE>
for that purpose, and any provisions of these By-Laws (other than this Section)
and any resolutions which are contrary to the provisions of this Section or to
the provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim Executive
Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
4
<PAGE>
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
6
<PAGE>
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a
7
<PAGE>
transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
8
<PAGE>
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was
9
<PAGE>
serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 16, 1999 By: /s/ Donald G. MacKelcan
------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has
not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your
state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- ---------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1999.
----------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins...................................... 196,035
Interest-bearing balances................................................................ 0
Held-to-maturity securities................................................................... 44,909
Available-for-sale securities................................................................. 1,396,028
Federal funds sold and securities purchased under agreements to resell........................ 127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income................................................. 4,176,290
LESS: Allowance for loan and lease losses............................................... 68,543
LESS: Allocated transfer risk reserve................................................... 0
Loans and leases, net of unearned income, allowance, and reserve......................... 4,107,747
Assets held in trading accounts............................................................... 0
Premises and fixed assets (including capitalized leases)...................................... 139,843
Other real estate owned....................................................................... 1,055
Investments in unconsolidated subsidiaries and associated companies........................... 1,225
Customers' liability to this bank on acceptances outstanding.................................. 0
Intangible assets............................................................................. 5,265
Other assets.................................................................................. 99,075
Total assets.................................................................................. 6,118,520
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices..................................................................................... 4,332,124
Noninterest-bearing................................................................................ 959,777
Interest-bearing................................................................................... 3,372,347
Federal funds purchased and Securities sold under agreements to repurchase.............................. 432,395
Demand notes issued to the U.S. Treasury................................................................ 28,906
Trading liabilities (from Schedule RC-D)................................................................ 0
Other borrowed money:................................................................................... ///////
With original maturity of one year or less......................................................... 715,000
With original maturity of more than one year....................................................... 43,000
Bank's liability on acceptances executed and outstanding................................................ 0
Subordinated notes and debentures....................................................................... 0
Other liabilities (from Schedule RC-G).................................................................. 93,311
Total liabilities....................................................................................... 5,644,736
EQUITY CAPITAL
Perpetual preferred stock and related surplus........................................................... 0
Common Stock............................................................................................ 500
Surplus (exclude all surplus related to preferred stock)................................................ 62,118
Undivided profits and capital reserves.................................................................. 408,053
Net unrealized holding gains (losses) on available-for-sale securities.................................. 3,113
Total equity capital.................................................................................... 473,784
Total liabilities, limited-life preferred stock, and equity capital..................................... 6,118,520
</TABLE>
2
<PAGE>
EXHIBIT 25.8
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
U.S. BANCORP
(Exact name of obligor as specified in its charter)
Delaware 41-0255900
(State of incorporation) (I.R.S. employer identification no.)
601 Second Avenue South
Minneapolis, Minesota 55403-4302
(Address of principal executive offices) (Zip Code)
Guarantee of Capital Securities of USB Capital V by U.S. Bancorp
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 16th day
of July, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ James P. Lawler By: /s/ Donald G. MacKelcan
----------------------------- ----------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold,
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purchase, convey, mortgage or otherwise deal in real and personal
estate and property, and to appoint such officers and agents as the
business of the Corporation shall require, to make by-laws not
inconsistent with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of debt, to
receive deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of exchange,
and generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation, association,
state or municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two parties,
and in like manner may act as Treasurer of any corporation or
municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
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instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit, order,
or decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any
of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of
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interest, dividends and income upon and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property
held and owned by it, and to exercise in respect of all such bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of individual owners
thereof, including the right to vote thereon; to invest and deal in
and with any of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from time to time
to vary or realize such investments; to issue bonds and secure the
same by pledges or deeds of trust or mortgages of or upon the whole or
any part of the property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors shall
determine, and in the promotion of its said corporate business of
investment and to the extent authorized by law, to lease, purchase,
hold, sell, assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or interest
therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit
as to amount, to draw, make, accept, endorse, discount, execute and
issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or
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transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any foreign
country or place.
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or restricted
by reference to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this paragraph
shall be regarded as independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which
the Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the
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foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of stock and whether such dividends
shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or winding-
up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article
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Fourth), if any, shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting
aside of sums as sinking funds or redemption or purchase accounts (fixed
in accordance with the provisions of section (b) of this Article Fourth),
and subject further to any conditions which may be fixed in accordance
with the provisions of section (b) of this Article Fourth, then and not
otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive all of the
remaining assets of the Corporation, tangible and intangible, of
whatever kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder
of Common Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of
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Directors in the resolution or resolutions adopted pursuant to authority
granted in section (b) of this Article Fourth and the consent, by class or
series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required
for the issuance by the Board of Directors of any other series of
Preferred Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior to, or on
a parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article Fourth that the
consent of the holders of a majority (or such greater proportion as shall
be therein fixed) of the outstanding shares of such series voting thereon
shall be required for the issuance of any or all other series of Preferred
Stock.
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board
of Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from
time to time by the affirmative vote of the holders of a majority of the
stock of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class
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shall be elected to hold office for a term expiring at the second
succeeding annual meeting and directors of the third class shall be
elected to hold office for a term expiring at the third succeeding annual
meeting. Any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the directors,
may be filled by the Board of Directors, acting by a majority of the
directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors.
At such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for which
such director shall have been chosen and until his successor shall be
elected and qualified. No decrease in the number of directors shall
shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the Corporation may be removed at any
time without cause, but only by the affirmative vote of the holders of
two-thirds or more of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to
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the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make,
alter or repeal any By-Law whether or not adopted by them, provided
however, that any such additional By-Laws, alterations or repeal may be
adopted only by the affirmative vote of the holders of two-thirds or more
of the outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose
as
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one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to time
designated by the Board, and the Directors may keep the books of the
Company outside of the State of Delaware at such places as may be from
time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more,
or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
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shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to
any one or more of clauses (A) through (E) of paragraph 1 of
the section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
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(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or
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transfer of securities by the Corporation, or any Subsidiary has an
aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall
not adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
14
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
<PAGE>
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect from
its own members a Chairman of the Board of Directors and a President who may be
the same person. The Board of Directors shall also elect at such meeting a
Secretary and a Treasurer, who may be the same person, may appoint at any time
such other committees and elect or appoint such other officers as it may deem
advisable. The Board of Directors may also elect at such meeting one or more
Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
2
<PAGE>
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time
3
<PAGE>
for that purpose, and any provisions of these By-Laws (other than this Section)
and any resolutions which are contrary to the provisions of this Section or to
the provisions of any such implementary Resolutions shall be suspended during
such a disaster period until it shall be determined by any interim Executive
Committee acting under this section that it shall be to the advantage of the
Company to resume the conduct and management of its affairs and business under
all of the other provisions of these By-Laws.
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the Trust
Department and the investment of trust funds, in all matters, however, being
subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept
and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
4
<PAGE>
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any Committee
created under Article III of the By-Laws of this Company, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absence or
disqualified member.
5
<PAGE>
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
-------------------------------
Board of Directors shall preside at all meetings of the Board of Directors at
which the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
6
<PAGE>
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a
7
<PAGE>
transfer book shall be kept in which all transfers of stock shall be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
8
<PAGE>
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was
9
<PAGE>
serving at the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation or of a partnership, joint venture,
trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
reasonably incurred by such person. The Corporation shall indemnify a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
-------- -------
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these By-
Laws, agreement, vote of stockholders or disinterested Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE>
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: July 16, 1999 By: /s/ Donald G. MacKelcan
--------------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved by
any state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------- -------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on March 31, 1999.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................ 196,035
Interest-bearing balances.......................................... 0
Held-to-maturity securities............................................. 44,909
Available-for-sale securities........................................... 1,396,028
Federal funds sold and securities purchased under agreements to resell.. 127,340
Loans and lease financing receivables:
Loans and leases, net of unearned income........................... 4,176,290
LESS: Allowance for loan and lease losses......................... 68,543
LESS: Allocated transfer risk reserve............................. 0
Loans and leases, net of unearned income, allowance, and reserve... 4,107,747
Assets held in trading accounts......................................... 0
Premises and fixed assets (including capitalized leases)................ 139,843
Other real estate owned................................................. 1,055
Investments in unconsolidated subsidiaries and associated companies..... 1,225
Customers' liability to this bank on acceptances outstanding............ 0
Intangible assets....................................................... 5,265
Other assets............................................................ 99,075
Total assets............................................................ 6,118,520
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices 4,332,124
Noninterest-bearing.................................................... 959,777
Interest-bearing....................................................... 3,372,347
Federal funds purchased and Securities sold under agreements to repurchase.. 432,395
Demand notes issued to the U.S. Treasury.................................... 28,906
Trading liabilities (from Schedule RC-D).................................... 0
Other borrowed money:....................................................... ///////
With original maturity of one year or less............................. 715,000
With original maturity of more than one year........................... 43,000
Bank's liability on acceptances executed and outstanding.................... 0
Subordinated notes and debentures........................................... 0
Other liabilities (from Schedule RC-G)...................................... 93,311
Total liabilities........................................................... 5,644,736
</TABLE>
<TABLE>
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus............................... 0
Common Stock................................................................ 500
Surplus (exclude all surplus related to preferred stock).................... 62,118
Undivided profits and capital reserves...................................... 408,053
Net unrealized holding gains (losses) on available-for-sale securities...... 3,113
Total equity capital........................................................ 473,784
Total liabilities, limited-life preferred stock, and equity capital......... 6,118,520
</TABLE>
2
