<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 14, 1999
REGISTRATION STATEMENT NO. 333-74737
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
F.N.B. CORPORATION
(Exact name of registrant as specified in its charter)
PENNSYLVANIA
(State or other jurisdiction of incorporation or organization)
25-1255406
(I.R.S. Employer Identification No.)
ONE F.N.B. BOULEVARD, HERMITAGE, PA 16148
(724) 981-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
JOHN D. WATERS
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
F.N.B. CORPORATION
ONE F.N.B. BOULEVARD
HERMITAGE, PA 16148
(724) 981-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
COPY TO:
DAVID J. LOWE
COHEN & GRIGSBY, P.C.
11 STANWIX STREET, 15TH FLOOR
PITTSBURGH, PA 15222
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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> 2
PROSPECTUS
F.N.B. CORPORATION
$125,000,000
OF
SUBORDINATED TERM NOTES AND DAILY NOTES
<TABLE>
<S> <C>
- -------------------------------------------------
TERM NOTES
Available Term: 3, 6, 9, 12, 18, 24, 30,
36, 48, 60, 84 and 120
months
Minimum Purchase: $500
Interest: We will establish the
interest rate when you
purchase the Term Note-See
the Prospectus Supplement
for current rates
You will have different
interest payment options,
depending on the term of
your Term Note
Redemption: You can redeem your Term
Note at any time but will
forfeit some interest
We can redeem your Term
Note on 30 days' notice
Security and Ranking: The Term Notes will not be
secured by any collateral
The Notes will be
subordinate to all of our
other existing and future
senior debt
- -------------------------------------------------
- -------------------------------------------------
DAILY NOTES
Term: The Daily Notes have no
set term
Minimum Purchase: $50.00
Interest: We will establish the
interest rate when you
purchase the Daily
Note-See the Prospectus
Supplement for current
rates
Interest is accrued daily,
compounded quarterly and
is paid when you redeem
the Daily Note
Redemption: You can redeem all or any
portion of your Daily Note
at any time without
penalty
We can redeem your Daily
Note on 30 days' notice
Security and Ranking: The Daily Notes will not
be secured by any
collateral
The Daily Notes will be
subordinate to all of our
existing and future senior
debt
- -------------------------------------------------
</TABLE>
THE TERM NOTES AND DAILY NOTES ARE NOT DEPOSITS AND ARE NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS ON PAGE 3 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PER NOTE TOTAL
-------- ------------
<S> <C> <C>
Public Offering Price................................... 100% $125,000,000
Underwriting Discounts.................................. None None
Proceeds to us (before expenses)........................ 100% $125,000,000
</TABLE>
We will sell the Daily Notes and the Term Notes at the offices of our
subsidiary, Regency Finance Company, and its subsidiary, Citizens Financial
Services, Inc. We will not list the Daily Notes or the Term Notes on any
securities exchange or other trading market.
------------------------
THE DATE OF THIS PROSPECTUS IS APRIL 15, 1999.
<PAGE> 3
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS
AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
Information is provided to you about the Daily Notes and Term Notes in this
Prospectus and the accompanying Prospectus Supplement, which describes the
interest rates applicable to the Notes at the time of your purchase. In making
your investment decision, you should rely only on the information contained or
incorporated by reference in this Prospectus and the Prospectus Supplement. We
have not authorized anyone to provide you with any other information. If you
receive any unauthorized information, you must not rely on it.
Cross-references are included in this Prospectus to captions in these materials
where you can find further related discussions. The following Table of Contents
provides the pages on which these captions are located.
This Prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended. Such forward-looking
statements, together with related qualifying language and assumptions, are found
in the material, set forth under "Risk Factors." Forward-looking statements are
also found elsewhere in this Prospectus, and may be identified by, among other
things, accompanying language including the words "expects," "intends,"
"anticipates," "estimates" or analogous expressions, or by qualifying language
or assumptions. Such statements involve known and unknown risks, uncertainties
and other important factors that could cause the actual results or performance
to differ materially from such forward-looking statements. Such risks,
uncertainties and other factors include, among others, general economic and
business conditions, competition, changes in political, social and economic
conditions, regulatory initiatives and compliance with government regulations,
customer preference and various other matters, many of which are beyond our
control. These forward-looking statements speak only as of the date of this
Prospectus. We disclaim any obligation or undertaking to disseminate any updates
or revisions to such forward-looking statements to reflect any change in our
expectations with regard thereto or any change in events, conditions or
circumstances on which any forward-looking statement is based.
TABLE OF CONTENTS
<TABLE>
<S> <C>
Risk Factors................................................ 3
Summary Consolidated Financial Data......................... 4
Use of Proceeds............................................. 5
The Company................................................. 6
Description of Notes........................................ 8
Plan of Distribution........................................ 14
Legal Matters............................................... 14
Independent Auditors........................................ 14
Where You Can Find Additional Information................... 14
Information Incorporated by Reference....................... 15
</TABLE>
2
<PAGE> 4
RISK FACTORS
You should carefully consider the following risk factors and other information
contained in this Prospectus before buying the Notes.
THE NOTES ARE NOT SECURED, INSURED OR GUARANTEED
The Notes are not secured by any of our assets or any other collateral. Also,
the Notes are not bank deposits and are not insured or guaranteed by the FDIC or
any other governmental agency. Therefore, you are increasing your risk of loss
if you buy Notes with funds taken from an insured account held at a bank,
savings and loan association or credit union.
YOUR RIGHT TO RECEIVE PAYMENTS ON THESE NOTES IS SUBORDINATE TO ALL OF OUR
SENIOR INDEBTEDNESS
According to the terms of the Notes, the payment of the principal and interest
on the Notes is subordinate in right of payment to the prior payment when due of
the principal and interest on all of our Senior Indebtedness. As of December 31,
1998, the total amount of our Senior Indebtedness was $6.0 million and the total
amount of our indebtedness that is equal in right of payment with the Notes was
$132.7 million. We have the absolute right to increase or decrease our Senior
Indebtedness.
Holders of Senior Indebtedness will be able to prevent payment on the Notes:
- - in the event of our bankruptcy, liquidation or reorganization;
- - if there is a payment default under certain Senior Indebtedness; and
- - if there are certain non-payment defaults under certain Senior Indebtedness.
OUR STATUS AS A HOLDING COMPANY MAKES US DEPENDENT ON DIVIDENDS FROM OUR
SUBSIDIARIES TO MEET OUR OBLIGATIONS
We are a holding company and conduct almost all of our operations through our
subsidiaries. We do not have any significant assets other than the stock of our
subsidiaries. Accordingly, we depend on the cash flows of our subsidiaries to
meet our obligations, including the payment of the principal and interest on the
Notes. Our right, and thus the right of the buyers of Notes and our other
creditors, to participate in any distribution of earnings or assets of our
subsidiaries is subject to the prior claims of creditors of such subsidiaries.
As of December 31, 1998, the amount of such claims (excluding deposit
liabilities) was $132.7 million.
Under federal and state law, our bank subsidiaries are limited in the amount of
dividends they can pay to us without prior regulatory approval. Also, bank
regulators have the authority to prohibit our subsidiary banks from paying
dividends if they think the payment would be an unsafe and unsound banking
practice.
YOU WILL FORFEIT INTEREST IF YOU REDEEM TERM NOTES EARLY
If you redeem your Term Notes before the maturity date, you will forfeit one
month of interest earned, or that could have been earned, if you are redeeming a
3, 6, 9 or 12 Month Term Note, or three months of interest earned, or that could
have been earned, if you are redeeming any other Term Note. We may also require
you to give us 30 days' prior written notice before you redeem a Term Note.
YOUR ABILITY TO SELL OR TRANSFER THE NOTES WILL BE LIMITED
There is no trading market for the Notes and we do not expect one to develop.
You should not purchase the Notes with the expectation that a trading market for
the Notes will subsequently develop. The Notes are also non-negotiable. You can
transfer or assign the Notes only with our consent and only at the offices of
our sales and paying agents, Regency Finance Company or Citizens Financial
Services, Inc.
3
<PAGE> 5
SUMMARY CONSOLIDATED FINANCIAL DATA
The following table sets forth summary consolidated financial data for the
Company for the periods indicated, giving retroactive effect to the mergers with
West Coast Bank, Seminole Bank and Citizens Holding Corporation, each of which
was accounted for as a pooling of interests. This information should be read in
conjunction with the financial statements and notes thereto incorporated by
reference in this Prospectus.
<TABLE>
<CAPTION>
AT OR FOR THE YEAR ENDED DECEMBER 31,
--------------------------------------------------------------
1998 1997 1996 1995 1994
---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS:
Interest income........................ $ 235,985 $ 216,278 $ 202,380 $ 190,743 $ 164,346
Interest expense....................... 103,385 92,664 84,736 81,660 65,043
---------- ---------- ---------- ---------- ----------
Net interest income.................. 132,600 123,614 117,644 109,083 99,303
Provision for loan losses.............. 7,255 11,100 9,773 7,174 9,369
---------- ---------- ---------- ---------- ----------
Net interest income after provision
for loan losses.................... 125,345 112,514 107,871 101,909 89,934
Non-interest income.................... 31,745 25,978 22,822 21,678 19,545
Non-interest expenses.................. 109,174 98,330 97,875 87,155 82,550
---------- ---------- ---------- ---------- ----------
Income before taxes.................... 47,916 40,162 32,818 36,432 26,929
Income taxes........................... 16,044 12,771 10,951 12,122 9,000
---------- ---------- ---------- ---------- ----------
Net income before extraordinary
items.............................. 31,872 27,391 21,867 24,310 17,929
Extraordinary items, net of tax........ -- 8,809 -- -- --
---------- ---------- ---------- ---------- ----------
Net income............................. $ 31,872 $ 36,200 $ 21,867 $ 24,310 $ 17,929
========== ========== ========== ========== ==========
Recurring net income................... $ 35,500 $ 31,956 $ 26,010 $ 24,310 $ 17,929
========== ========== ========== ========== ==========
PER SHARE DATA (A):
Net income:
Basic................................ $ 1.75 $ 2.05 $ 1.22 $ 1.37 $ 1.02
Diluted.............................. 1.68 1.95 1.19 1.32 1.01
Recurring net income*
Basic................................ 1.96 1.81 1.46 1.37 1.02
Diluted.............................. 1.87 1.72 1.41 1.32 1.01
Cash dividends......................... .71 .60 .57 .31 .23
Book value, end of period.............. 14.82 14.14 13.21 11.86 10.44
SELECTED PERIOD END BALANCES:
Assets................................. $3,250,695 $2,967,482 $2,680,096 $2,487,518 $2,318,405
Net loans.............................. 2,298,834 2,064,998 1,873,050 1,685,317 1,589,684
Deposits............................... 2,708,572 2,467,057 2,240,572 2,116,099 1,952,496
Long-term debt......................... 69,492 72,246 58,179 50,784 56,614
Preferred stock........................ 2,380 2,875 3,525 4,516 4,563
Stockholders' equity................... 272,158 260,251 225,649 212,514 187,516
</TABLE>
- ---------------
* Recurring net income excludes merger related and other non-recurring costs
of $3.6 million in 1998, extraordinary gains on the sale of a subsidiary
and branches of $8.8 million and merger related and other non-recurring
costs of $4.6 million in 1997 and a one-time assessment of $2.1 million
legislated by Congress to recapitalize the Savings Association Insurance
Fund and merger related and other non-recurring costs of $2.0 million in
1996, all on an after-tax basis.
(A) Net income per common share is based on weighted average shares outstanding
adjusted retroactively for stock splits and stock dividends. Cash dividends
per common share are based on the actual cash dividends declared adjusted
for stock splits and stock dividends. Book value per common share is based
on shares outstanding at each period-end adjusted retroactively for stock
splits and stock dividends.
4
<PAGE> 6
<TABLE>
<CAPTION>
AT OR FOR THE YEAR ENDED DECEMBER 31,
------------------------------------------
1998 1997 1996 1995 1994
------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
SELECTED PERFORMANCE RATIOS:
Return on average assets........................ 1.03% 1.32% .85% 1.01% .80%
Return on average equity........................ 11.96 15.21 9.91 12.13 10.03
Recurring net income:
Return on average assets...................... 1.15 1.16 1.02 1.01 .80
Return on average equity...................... 13.32 13.43 11.79 12.13 10.03
Total equity/total assets....................... 8.37 8.77 8.42 8.54 8.09
Net interest margin (fully taxable
equivalent)................................... 4.71 4.90 5.03 4.98 4.83
Dividend payout................................. 38.96 25.24 29.02 14.87 15.01
ASSET QUALITY RATIOS:
Non-performing loans/total loans................ .60 .46 .68 .78 .96
Allowance for loan losses/non-performing
loans......................................... 223.35 308.79 232.76 198.64 159.87
Non-performing assets/total assets (B).......... .47 .46 .76 .75 .90
Ratio of earnings to fixed charges.............. 1.45% 1.41% 1.37% 1.42% 1.38%
</TABLE>
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Notes:
(B) Non-performing assets include non-accrual loans, other real estate owned
and restructured loans.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of Notes primarily as
advances to its consumer finance subsidiary, Regency Finance Company, primarily
to fund Regency's lending and purchasing activities and secondarily for general
corporate purposes of the Company.
5
<PAGE> 7
THE COMPANY
GENERAL
F.N.B. Corporation, or the "Company," is a financial services holding company
headquartered in Hermitage, Pennsylvania. It provides a broad range of financial
services to its customers through its bank and consumer finance subsidiaries in
Pennsylvania, southwestern Florida, eastern Ohio and southwestern New York. The
Company's main office is located at One F.N.B. Boulevard, Hermitage,
Pennsylvania 16148 and its telephone number is (724) 981-6000.
The Company was formed in 1974 and currently operates ten bank subsidiaries and
one consumer finance company in Pennsylvania, southwestern Florida, eastern Ohio
and southwestern New York. On January 13, 1999, the Company completed its
acquisition of Guaranty Bank and Trust Company, a Florida state bank, located in
Venice, Florida with assets of approximately $154.0 million, which it
subsequently merged with West Coast Bank to form West Coast Guaranty Bank, N.A.
As of December 31, 1998, including Guaranty Bank and Trust Company, the Company
had approximately $3.4 billion in consolidated assets, approximately $2.9
billion in deposits and 122 offices.
The Company, through its subsidiaries, provides a full range of financial
services, principally to consumers and small to medium-size businesses in its
market areas. The Company's business strategy has been to focus primarily on
providing quality, community-based financial services adapted to the needs of
each of the markets it serves. The Company has emphasized its community
orientation by generally preserving the names and local boards of directors of
its subsidiaries, by allowing its subsidiaries autonomy in decision-making and
thus enabling them to respond to customer requests more quickly, and by
concentrating on transactions within its market areas. However, while the
Company has sought to preserve the identities and autonomy of its subsidiaries,
it has established centralized credit analysis, loan review, investment, audit
and data processing functions. The centralization of these processes has enabled
the Company to maintain consistent quality of these functions and to achieve
certain economies of scale.
The Company's lending philosophy is to minimize credit losses by following
uniform credit approval standards (which include independent analysis of
realizable collateral value), diversifying its loan portfolio, maintaining a
relatively modest average loan size and conducting ongoing review and management
of the loan portfolio. The Company is an active residential mortgage lender, and
its commercial loans are generally to established local businesses. The Company
does not have a significant amount of construction loans and has no highly
leveraged transaction loans or loans to foreign countries.
No material portion of the deposits of the Company's subsidiaries has been
obtained from a single or small group of customers, and the loss of any
customer's deposits or a small group of customers' deposits would not have a
material adverse effect on the business of the Company.
6
<PAGE> 8
Information as of December 31, 1998 for the Company's existing bank and consumer
finance subsidiaries (including the year established and location of principal
office for each) is set forth below. All subsidiaries are wholly-owned by the
Company.
<TABLE>
<CAPTION>
NUMBER OF
TOTAL TOTAL BRANCH
ASSETS DEPOSITS OFFICES
---------- ---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
BANK SUBSIDIARIES:
First National Bank of Pennsylvania (est. 1864)
Hermitage, Pennsylvania.............................. $1,229,283 $1,075,911 36
First National Bank of Naples (est. 1988)
Naples, Florida...................................... 664,500 519,109 7
First National Bank of Florida (est. 1997)
Clearwater, Florida.................................. 325,330 280,360 12
Cape Coral National Bank (est. 1994)
Cape Coral, Florida.................................. 301,056 271,987 5
West Coast Guaranty Bank, N.A. (est. 1999)*
Sarasota, Florida.................................... 273,410 235,951 7
Metropolitan National Bank (est. 1922)
Youngstown, Ohio..................................... 246,696 216,388 8
Reeves Bank (Est. 1868)
Beaver Falls, Pennsylvania........................... 143,972 130,880 8
First National Bank of Fort Myers (est. 1989)
Fort Myers, Florida.................................. 82,998 74,623 2
First County Bank, N.A. (est. 1987)
Chardon, Ohio........................................ 62,210 57,527 3
Totals............................................ $3,329,455 $2,862,736 88
CONSUMER FINANCE SUBSIDIARY:
Regency Finance Company (est. 1927)
Hermitage, Pennsylvania.............................. $ 88,154 N/A 34
</TABLE>
- ---------------
* Formed upon the merger of Guaranty Bank and Trust Company and West Coast Bank
on February 12, 1999.
The Company has five other operating subsidiaries, Penn-Ohio Life Insurance
Company, Mortgage Service Corporation, F.N.B. Building Corporation, F.N.B.
Investment Corporation and Customer Service Center of F.N.B., L.L.C. Penn-Ohio
Life Insurance Company underwrites, as a reinsurer, credit life and accident and
health insurance sold by the Company's subsidiaries. These activities are
incidental to the Company's banking business. Mortgage Service Corporation
services mortgage loans for unaffiliated financial institutions, F.N.B. Building
Corporation owns real estate that is leased to certain subsidiaries, F.N.B.
Investment Corporation holds equity securities and other miscellaneous assets on
behalf of the Company and Customer Service Center performs data processing and
other services for the Company and its affiliates.
As of February 28, 1999, the Company and its subsidiaries had approximately
1,508 full-time equivalent employees.
OPERATIONS OF THE BANK SUBSIDIARIES
The Company's bank subsidiaries offer services traditionally offered by
full-service commercial banks, including commercial and individual demand and
time deposit accounts, commercial, mortgage and
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<PAGE> 9
individual installment loans, credit card and discount brokerage services
through correspondent banks, night depository, automated teller services,
computer services, safe deposit boxes, money order services, travelers checks,
government savings bonds, food stamp sales and utility bill payments. The bank
subsidiaries also offer alternative investment products including mutual funds,
annuities and discount brokerage.
In addition, the Company offers a broad range of personal and corporate
fiduciary services, including the administration of decedent and trust estates.
As of December 31, 1998, trust assets under management totaled $670.0 million.
OPERATIONS OF THE CONSUMER FINANCE SUBSIDIARY
The Company's consumer finance subsidiary is involved principally in making
personal installment loans to individuals and purchasing installment sales
finance contracts from retail merchants.
OTHER INFORMATION
As part of its operations, the Company regularly evaluates the potential
acquisition of, and holds discussions with, various financial institutions and
other businesses of a type eligible for bank holding company investment. In
addition, the Company regularly analyzes the values of, and submits bids for,
the acquisition of customer-based funds and other liabilities and assets of such
financial institutions and other businesses. As a general rule, the Company
publicly announces such material acquisitions when a definitive agreement has
been reached.
For further information about the Company, reference is made to the Company's
Annual Report on Form 10-K for the year ended December 31, 1998, which is
incorporated herein by reference. Investors desiring a copy of such report may
(i) contact the Company at its address or telephone number indicated under
"Information Incorporated by Reference" or (ii) access the SEC's website at
"http://www/sec.gov."
DESCRIPTION OF NOTES
GENERAL
The Company will issue the Notes under an Indenture, dated as of May 15, 1992,
as supplemented by the First Supplemental Indenture dated as of January 1, 1994,
(the "Indenture"), between the Company and Chase Manhattan Trust Company,
National Association, successor to Northern Central Bank, as trustee (the
"Trustee"). The Notes will be subordinated, unsecured obligations of the
Company. The material terms, provisions and covenants contained in the Notes and
the Indenture are described below.
The Notes will be subordinate in right of payment to Senior Indebtedness of the
Company, as described below under "Subordination." The Indenture does not limit
the incurrence of Senior Indebtedness or any other debt, secured or unsecured,
of the Company or any of its subsidiaries, nor does it contain any terms which
would afford protection to holders of the Notes ("Holders") issued thereunder in
the event of a recapitalization, a change in control, a highly leveraged
transaction or a restructuring involving the Company.
The Notes will be obligations of the Company only. Because the Company is a
holding company, its rights and the rights of its creditors, including the
Holders of the Notes, to participate in the distribution of the assets of any of
the Company's subsidiaries upon liquidation, dissolution or reorganization of a
subsidiary will be subject to the prior claims of the subsidiaries' creditors
(including depositors in a bank or savings and loan subsidiary), except to the
extent that the Company may itself be a creditor with recognized claims against
the subsidiary.
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<PAGE> 10
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") as in effect on the date of the Indenture. The Notes
are subject to all such terms, and holders of the Notes are referred to the
Indenture and the Trust Indenture Act for a statement of them. The statements
under this caption relating to the Indenture, a copy of which is filed as an
exhibit to the Registration Statement, and the Notes are summaries and do not
purport to be complete. Such summaries make use of certain terms defined in the
Indenture and are qualified in their entirety by express reference to the
Indenture.
TERMS OF SUBORDINATED TERM NOTES
Subordinated Term Notes Due 3 Months or 6 Months.
The Company will issue each 3 Month and 6 Month Term Note in the minimum
principal amount of $500 and such Term Notes will mature 3 months or 6 months,
respectively, after their date of issue. The Company will determine, from time
to time, the rate of interest payable on such Term Notes. The rate of interest
at the time of purchase will be the rate payable throughout the original term of
the Term Note. The Company will pay interest, at the Holder's option, either
monthly or at maturity.
Each 3 Month and 6 Month Term Note will automatically extend for an additional
term, equal in duration to the original term, at the rate of interest then in
effect for Term Notes of comparable maturity. All of the other terms and
conditions applicable to the Term Notes when issued will also apply during each
extension term. The Holder may elect not to extend the term by notifying the
Company of his intention to redeem the Term Note.
Subordinated Term Notes Due 9 Months, 12 Months, 18 Months, 24 Months, 30
Months, 36 Months, 48 Months, 60 Months, 84 Months or 120 Months.
The Company will issue each 9, 12, 18, 24, 30, 36, 48, 60, 84, and 120 Month
Term Note in the minimum principal amount of $500. Such Term Notes will mature 9
months, 12 months, 18 months, 24 months, 30 months, 36 months, 48 months, 60
months, 84 months or 120 months after their date of issue. The Company will
determine, from time to time, the rate of interest payable on such Term Notes.
The rate of interest at the time of purchase will be payable throughout the
original term of the Term Note. The Company will pay interest, at the Holder's
option, either monthly or quarterly, or will compound the interest quarterly.
These Term Notes will automatically extend for additional terms, equal in
duration to their original terms, at the rate(s) of interest then in effect for
Term Notes of comparable maturity. All of the other terms and conditions
applicable to such Term Notes when issued will also apply during each extension
term. The Holder may elect not to extend the term by notifying the Company of
the Holder's intention to redeem the Term Note.
Redemption of Term Notes at Option of Holder.
The Holder of a Term Note will have the right, at such Holder's option, to
redeem the Term Note, in whole or in part, prior to maturity, provided that a
partial redemption may not reduce the principal amount of the Term Note below
$500. If the Holder redeems, in whole or in part, a 3 Month, 6 Month, 9 Month or
a 12 Month Term Note, the Holder will forfeit one month of interest earned, or
that could have been earned, on the amount redeemed at the rate being paid on
the Term Note, regardless of the length of time that the Holder has owned the
Term Note. If the Holder redeems, in whole or in part, an 18 Month, 24 Month, 30
Month, 36 Month, 48 Month, 60 Month, 84 Month or 120 Month Term Note, the Holder
will forfeit 3 months of interest earned, or that could have been earned, on the
amount redeemed at the rate being paid on the Term Note, regardless of the
length of time that the Holder has owned the Term Note. Where
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<PAGE> 11
necessary to comply with the requirements of this paragraph, the Company will
deduct interest already paid to or for the account of the Holder from the amount
redeemed.
Term Notes may be redeemed before maturity without forfeiture of interest upon
the death of any Holder or if the Holder is determined to be legally
incompetent. The Company may require the Holder to give the Company no less than
thirty (30) days' prior written notice, by first class mail, of a redemption
demanded by the Holder. The Holder must specify in the notice the principal
amount of the Term Note to be redeemed and the redemption date.
TERMS OF SUBORDINATED DAILY NOTES
The Company will issue Daily Notes in the minimum original principal amount of
$50. Holders of Daily Notes may increase or decrease the original principal
amount at any time by making additional purchases or partial redemptions. Each
partial redemption must be in the minimum amount of $50 and may not reduce the
principal amount of the Daily Note below $50. Upon request of the Holder of a
Daily Note, the Company will record on the Daily Note any adjustments to the
original principal amount, such as additional purchases or partial redemptions.
If the Holder redeems a Daily Note in full, such Daily Note must be surrendered
by the Holder to the Company and the Company will pay to the Holder the
outstanding principal amount thereof, together with any accrued but unpaid
interest. The Company may require the Holder to give the Company no less than
thirty (30) days' prior written notice, by first class mail, of a redemption
demanded by the Holder. The Holder must specify in the notice the principal
amount of the Daily Note to be redeemed and the redemption date.
The Company will determine the interest rate payable on the Daily Note. The
interest rate may increase or decrease on a monthly basis. The Company will make
each adjustment, if any, to the interest rate on the first day of the month. The
interest rate, once adjusted, will be effective on the first day of each month
and will remain in effect until next adjusted by the Company. Interest will be
accrued daily and compounded quarterly.
GENERAL PROVISIONS APPLICABLE TO ALL NOTES
Optional Redemption by the Company.
The Company has the right, at its option, to call any of the Notes for
redemption before maturity, at any time. The Company will make each partial
redemption payment ratably on all the outstanding Notes of the particular series
called for redemption. Interest on the Notes will continue to accrue until the
date of redemption and no premium will be paid on such Notes. The Company will
give each Holder at least thirty (30) days' prior written notice by first class
mail of each redemption, specifying, among other things, the principal amount of
the Note to be redeemed and the redemption date. Once the Company gives a notice
of redemption, the principal amount of the Note specified in such notice,
together with accrued and unpaid interest to the redemption date, will become
due and payable on the redemption date.
Subordination.
The indebtedness evidenced by the Notes is subordinate to the prior payment when
due of the principal of and interest on all Senior Indebtedness. Upon maturity
of any Senior Indebtedness, the Company must make payment in full on such Senior
Indebtedness before it can make any payment on the Notes. The Company may not
make any payment on the Notes while it is in default on the payment of any
Senior Indebtedness, or while any other event of default exists with respect to
Senior Indebtedness pursuant to which the holders thereof have accelerated the
maturity thereof. If the assets of the Company are distributed
10
<PAGE> 12
in any dissolution, winding up, liquidation or reorganization, payment of the
principal of and interest on the Notes will be subordinated, to the extent and
in the manner set forth in the Indenture, to the prior payment in full of all
Senior Indebtedness. The Indenture does not limit the Company's ability to
increase the amount of Senior Indebtedness or to incur any additional
indebtedness in the future that may affect the Company's ability to make
payments under the Notes. Except as described above, the obligation of the
Company to make payment of principal or interest on the Notes will not be
affected. The Holders of the Notes will be subrogated to the rights of the
holders of the Senior Indebtedness to the extent of payments made on Senior
Indebtedness out of the distributive share of the Notes. By reason of such
subordination, in the event of a distribution of assets upon insolvency, certain
general creditors of the Company may recover more, ratably, than Holders of the
Notes.
"Senior Indebtedness" means Indebtedness of the Company outstanding at any time
other than (1) Indebtedness of the Company to a Subsidiary for money borrowed or
advanced from any such Subsidiary and (2) Indebtedness which by its terms is not
superior in right of payment to the Notes.
"Indebtedness" means (1) any debt of the Company (i) for borrowed money or (ii)
evidenced by a note, debenture or similar instrument (including a purchase money
obligation) given in connection with the acquisition of any property or assets,
including securities; (2) any debt of others described in the preceding clause
(1) which the Company has guaranteed or for which it is otherwise liable; and
(3) any amendment, renewal, extension or refunding of any such debt. As of
December 31, 1998, the outstanding amount of Senior Indebtedness of the Company
was approximately $6.0 million.
Defaults and Remedies.
The term "Events of Default" when used in the Indenture means any one of the
following: (i) failure of the Company to pay interest which failure continues
for 30 days, or failure to pay principal of (or premium, if any, on) any of the
Notes when due (whether or not prohibited by the subordination provisions); (ii)
failure to perform any other covenant or breach of any warranty continuing for
60 days after the Company receives written notice of such failure or breach;
(iii) the default under any instrument governing indebtedness of the Company or
any subsidiary for money borrowed or guaranteed which constitutes a failure to
pay principal in an aggregate principal amount exceeding $1,000,000 or which has
resulted in an aggregate principal amount of at least $1,000,000 becoming or
being declared due prior to its stated maturity, and which default is not cured
within 30 days after the Company receives written notice thereof; and (iv)
certain events of bankruptcy, insolvency or reorganization involving the Company
or certain of its subsidiaries.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default, mail to the Holders notice of all uncured defaults
known to it (the term "default" for this purpose only means the happening of any
Event of Default specified above, excluding grace periods). In the case of
default in the payment of principal of or interest on any of the Notes, the
Trustee will be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest of the
Holders.
If an Event of Default occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount of any series of the Notes then
outstanding, by notice in writing to the Company (and to the Trustee if given by
the holders), may declare the principal of and all accrued interest on all the
Notes of such series to be due and payable immediately. The Holders of a
majority in principal amount of such series of Notes may rescind such
declaration if (1) the Company has paid or deposited with the Trustee a sum
sufficient to pay all overdue interest on such series of Notes and principal of
(and premium, if any, on) any Notes which have become due otherwise than by such
declaration of acceleration and (2) all existing Events of Default have been
cured or waived.
Defaults (except, unless cured, a default in payment of principal of or interest
on the Notes or a default with respect to a provision which cannot be modified
under the terms of the Indenture without the consent of
11
<PAGE> 13
each Holder affected) may be waived by the Holders of a majority in principal
amount of a series of Notes (with respect to such series) upon the conditions
provided in the Indenture.
The Indenture requires the Company to file periodic reports with the Trustee as
to the absence of defaults.
A director, officer, employee or stockholder, as such, of the Company will not
have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder, by accepting a Note, waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
Consolidation, Merger, Conveyance, Transfer or Lease.
The Company may not consolidate with, merge into, or transfer or lease
substantially all of its assets to, any other corporation unless the successor
corporation assumes all obligations of the Company under the Indenture and the
Notes and certain other conditions are met. Thereafter all such obligations of
the Company will terminate and the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer or
lease is made will succeed to all rights and powers of the Company under the
Indenture.
The Indenture prohibits the issuance, sale, assignment, transfer or other
disposition of shares of, or securities convertible into, or options, warrants
or rights to subscribe for or purchase shares of a subsidiary, or any
successors, or mergers or consolidations involving a subsidiary, or sales or
transfers of assets substantially as an entirety by any subsidiary. The Company
may, with respect to any subsidiary that is not a Principal Member Bank (as
defined in the Indenture), (1) dispose of any shares of stock or (2) issue
shares of stock or permit a merger, consolidation or sale or lease of assets if
the consideration received at least equals the fair value of the shares or
assets transferred and either the Company's pro rata interest in the subsidiary
is maintained or the Company owns no shares of the subsidiary immediately after
the transaction. The Indenture does not prohibit such dispositions (i) if made
in compliance with any order of the court or regulatory authority or made as a
condition imposed by a court or authority to the acquisition by the Company of
any entity, or (ii) when the proceeds are, within 270 days, or such longer
period of time as may be necessary to obtain requisite regulatory approvals, to
be invested in a subsidiary (including any entity which upon such investment
becomes a subsidiary) engaged in a business legally permissible for bank holding
companies.
Modification of the Indenture.
The Company and the Trustee may supplement or amend the Indenture under certain
specified circumstances, without the consent of any Holder, including to cure
any ambiguity, to correct or supplement any other provision thereof, to evidence
the succession of a successor to the Company or the Trustee, to add to the
covenants of the Company for the benefit of the Holders or additional Events of
Default, to secure the Notes, or to add any other provisions with respect to
matters or questions arising thereunder which the Company and the Trustee deem
necessary or desirable and which do not adversely affect the interests of the
Holders. Otherwise, the rights and obligations of the Company and the rights of
the Holders may be modified by the Company and the Trustee only with the consent
of the Holders of a majority in principal amount of each series of Notes then
outstanding.
Consumer Finance Subsidiary as Selling Agent and Paying Agent of the Company.
Regency Finance Company, and its subsidiary, Citizens Financial Services, Inc.,
will act as selling agents and paying agents of the Company. Therefore, the
Holders will make all payments for Notes to Regency or Citizens, as agent for
the Company, and Regency or Citizens will make all principal and certain
interest payments to the Holders, as agent for the Company.
12
<PAGE> 14
Notes Non-Negotiable.
The Notes are non-negotiable and no rights of ownership may be transferred by
mere endorsement and delivery of a Note to a purchaser. All transfers and
assignments of Notes may be made only at the offices of Regency Finance Company
or its subsidiary, Citizens Financial Services, Inc., upon presentation of the
Note and recordation of such transfer or assignment in the books of the Company.
Satisfaction and Discharge of Indenture.
The Indenture will be discharged and cancelled upon payment of all securities
issued under the Indenture, including the Notes, or upon deposit with the
Trustee, within not more than one year prior to the maturity of all the
outstanding securities issued under the Indenture, of funds sufficient for such
payment or redemption.
The Trustee.
The Trustee is Chase Manhattan Trust Company, National Association, successor to
Northern Central Bank. Notice to the Trustee should be directed to One Oxford
Centre, 301 Grant Street, Suite 1100, Pittsburgh, Pennsylvania 15219.
The Holders of a majority in principal amount of all outstanding series of Notes
have the right to direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee, provided that such direction
would not conflict with any rule of law or with the Indenture, would not be
prejudicial to the rights of another Holder and would not subject the Trustee to
personal liability. The Indenture provides that in case an Event of Default
should occur and be known to the Trustee (and not be cured), the Trustee will be
required to use the degree of care of a prudent man in the conduct of his own
affairs in the exercise of its power. Subject to such provisions, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request of any of the Holders unless they shall have offered to
the Trustee security and indemnity satisfactory to it.
Federal Income Tax Considerations.
A Holder of Notes may be subject to "backup withholding" under certain
circumstances. Backup withholding applies to a Holder who is a United States
person if the Holder, among other things,
(1) fails to furnish his social security number or other taxpayer identification
number ("TIN") to the payer responsible for backup withholding (for example,
the Holder's securities broker),
(2) furnishes such payer an incorrect TIN,
(3) fails to provide such payer with a certified statement, signed under
penalties of perjury, that the TIN provided to the payer is correct and that
the Holder is not subject to backup withholding, or
(4) fails to report properly interest and dividends on his tax return. Backup
withholding, however, does not apply to payments made to certain exempt
recipients, such as corporations and tax-exempt organizations. The backup
withholding rate is 31% of "reportable payments," which generally will
include interest on Notes.
Under present law all interest earned on the Notes will be taxable each year for
Federal income tax purposes. Even though interest on certain series of Notes may
be accrued during a calendar year but not paid until a future year, the accrued
interest may be taxable for Federal income tax purposes during the calendar year
of accrual.
Holders of Notes should consult their own tax advisors about the federal, state
and local tax consequences of owning Notes.
13
<PAGE> 15
PLAN OF DISTRIBUTION
Officers and employees of Regency, the Company's consumer finance subsidiary,
and its wholly-owned subsidiary, Citizens Financial Services, Inc., will sell
the Notes without registration as brokers or dealers in reliance upon the safe
harbor provided by Rule 3a4-1 under the Exchange Act. Such officers and
employees will not receive any commissions or direct or indirect compensation in
connection with the sale of the Notes.
The Company will market the Notes through the use of newspaper advertisements
and signs in the Regency offices and through the provision of copies of this
Prospectus to customers who inquire about purchasing the Notes. The Company will
not market the Notes through any mass mailings, telephone calls or other
personal solicitation.
LEGAL MATTERS
The law firm of Cohen & Grigsby, P.C., Pittsburgh, Pennsylvania, rendered an
opinion regarding the validity of the Notes covered by this Prospectus.
INDEPENDENT AUDITORS
The consolidated financial statements of the Company at December 31, 1998 and
1997, and for each of the three years in the period ended December 31, 1998,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon, included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, and incorporated herein by reference. As to
1997, their report is based, in part, on the reports of Hacker, Johnson, Cohen &
Grieb, PA, independent auditors, who audited Seminole Bank and Citizens Holding
Corporation. As to 1996, their report is based, in part, on the reports of Hill,
Barth & King, Inc., independent auditors, who audited Southwest Banks, Inc.,
PricewaterhouseCoopers LLP, independent auditors, who audited West Coast
Bancorp, Inc., and Hacker, Johnson, Cohen & Grieb, PA, independent auditors, who
audited Seminole Bank and Citizens Holding Corporation.
The financial statements referred to above are incorporated herein by reference
in reliance upon such reports given upon the authority of such firms as experts
in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
The Company files annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any report, statements or
other information filed by the Company at the SEC's public reference rooms in
Washington, D.C., New York, New York, or Chicago, Illinois. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms. The
Company's SEC filings are also available to the public from commercial document
retrieval services and at the web site maintained by the SEC at
"http://www.sec.gov."
The Company has filed a Registration Statement on Form S-3 to register with the
SEC the Notes sold under this Prospectus. This Prospectus is part of that
Registration Statement. As allowed by the SEC rules, this Prospectus does not
contain all the information you can find in the Registration Statement or the
exhibits to the Registration Statement.
14
<PAGE> 16
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" certain information in this
Prospectus which means that we can disclose important information to you by
referring you to another document filed separately with the SEC by the Company.
The information incorporated by reference is deemed to be part of this
Prospectus, except for any information superseded by information in the
Prospectus. This Prospectus incorporates by reference the documents set forth
below that the Company has previously filed with the SEC. These documents
contain important information about the Company and its finances.
<TABLE>
<CAPTION>
COMPANY FILINGS (SEC FILE NO. 08144) PERIOD
- ------------------------------------ ------
<S> <C>
Annual Report on Form 10-K the year ended December 31, 1998
</TABLE>
We further incorporate by reference additional documents that the Company files
with the SEC between the date of this Prospectus and the date the offering of
Notes is terminated.
Upon request the Company will provide, without charge, a copy of any or all of
the documents incorporated by reference in this document (other than exhibits to
the documents, unless the exhibits are specifically incorporated by reference).
Your requests for copies should be directed to F.N.B. Shareholder Services, P.O.
Box 413043, Naples, FL 34101-3043, Telephone: 800-490-3951.
15
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following expenses will be incurred in connection with the issuance and
distribution of the securities being registered:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee*..................... $34,750.00*
Printing and engraving expenses............................. 12,000.00
Legal fees and expenses..................................... 12,000.00
Accounting fees and expenses................................ 10,000.00
Trustee fees................................................ 6,000.00
Miscellaneous expenses...................................... 5,000.00
----------
Total.................................................. $79,750.00
==========
</TABLE>
- ---------------
* Exact; all other fees and expenses are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Numbered Paragraph 6.b of the Articles of Incorporation, as amended, of F.N.B.
Corporation provides as follows:
Directors and Officers of the Corporation shall be indemnified as of
right to the fullest extent now or hereafter permitted by law in connection
with any actual or threatened action, suit or proceedings, civil, criminal,
administrative, investigative or other (whether brought by or in the right
of the Corporation or otherwise), arising out of their service to the
Corporation or to another organization at the request of the Corporation,
or because of their positions with the Corporation. Persons who are not
Directors or Officers of the Corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by the Board
of Directors of the Corporation. The Corporation may purchase and maintain
insurance to protect itself and any such Director, Officer or other person
against any liability, cost or expense asserted against or incurred by him
in respect of such service, whether or not the Corporation would have the
power to indemnify him against such liability by law or under the
provisions of this paragraph. The provisions of this paragraph shall be
applicable to persons who have ceased to be Directors or Officers, and
shall inure to the benefit of the heirs, executors and administrators of
persons entitled to indemnity hereunder.
Article IX of the Bylaws of F.N.B. Corporation provides that the Corporation
shall indemnify each director and officer of the Corporation and of its
controlled subsidiaries made or threatened to be made a party to any civil,
criminal, administrative action, suit or proceeding (whether brought by or in
the name of the Corporation or otherwise) arising out of such director's or
officer's service to the Corporation or to another organization at the
Corporation's request against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such director and officer in connection with such action, suit or proceeding.
Indemnification shall not be made with respect to actions, suits or proceedings
where the act or omission giving rise to the claim for indemnification has been
determined to have constituted willful misconduct or recklessness or where
prohibited by law. In addition, expenses incurred by each director and officer
in defending any such action, suit or proceeding, shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding if an undertaking (in form and scope satisfactory to the Corporation)
shall have been furnished to the Corporation to repay amounts so advanced if and
to the extent it shall ultimately be determined that such officer or director is
not entitled
II-1
<PAGE> 18
to indemnification and certain other conditions shall have been satisfied. The
Corporation may purchase and maintain insurance, create a fund of any nature,
grant a security interest or otherwise secure or insure in any manner its
indemnification obligations.
Article II, Section 17 of the Bylaws of F.N.B. Corporation provides that to the
fullest extent permitted by law, no director of the Corporation shall be
personally liable for monetary damages for any action taken, or any failure to
take any action.
Section 1741 of the Pennsylvania Business Corporation Law (the "BCL") provides
that a corporation shall (subject to the provisions described in the second
succeeding paragraph) have the power to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that such person is or was a representative of the
corporation, or is or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such persons in connection with
the action or proceeding if such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action or
proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent shall not of itself create a presumption that such
person did not act in good faith and in a manner which he reasonably believed to
be in, or not opposed to, the best interests of the corporation and, with
respect to any criminal proceeding, had reasonable cause to believe that his
conduct was unlawful.
Section 1742 of the Pennsylvania BCL provides that a corporation shall (subject
to the provisions described in the succeeding paragraph) have the power to
indemnify any person who was or is a party, or is threatened to be made a party,
to any threatened, pending or completed action by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a representative of the corporation, or is or was serving at
the request of the corporation as a representative of another domestic or
foreign corporation for profit or not-for-profit, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense of the
settlement of the action if such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation. Indemnification shall not be made in respect of any claim, issue or
matter as to which such person has been adjudged to be liable to the corporation
unless and only to the extent that the court of common pleas of the county in
which the registered office of the corporation is located or the court in which
the action was brought determines upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses that the
court of common pleas or other court deems proper.
Under Section 1744 of the Pennsylvania BCL, any such indemnification (unless
ordered by a court) shall be made by the corporation only as authorized in a
specific case upon a determination that indemnification of the representative is
proper in the circumstances because such person has met the applicable standard
of conduct. Such determination shall be made:
(1) By the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to the action or proceeding; or
(2) If such quorum is not obtainable or, even if obtainable, a majority
vote of a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion; or
(3) By the shareholders.
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<PAGE> 19
Notwithstanding the above, Section 1743 provides that to the extent that a
representative of the corporation has been successful on the merits or otherwise
in defense of any action or proceeding referred to above, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
Under Section 1745 of the Pennsylvania BCL, expenses (including attorneys' fees)
incurred in defending any action or proceeding may be paid by the corporation in
advance of the final disposition of the action or proceeding upon receipt of an
undertaking by or on behalf of the representative to repay such amount if it is
ultimately determined that such person is not entitled to be indemnified by the
corporation.
Section 1746 of the Pennsylvania BCL further provides that the indemnification
provided by Sections 1741, 1742 and 1743 and the advancement of expenses
provided by Section 1745 shall not be deemed exclusive of any other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of shareholders, disinterested
directors or otherwise, both as to action in his official capacity and as to
action in other capacity while holding that office. A corporation may create a
fund of any nature, which may, but need not be, under the control of a trustee,
or otherwise secure or insure in any manner its indemnification obligations,
whether arising under or pursuant to Section 1746 or otherwise. Indemnification
pursuant to Section 1746 shall not be made in any case where the act or failure
to act giving rise to the claim for indemnification is determined by a court to
have constituted willful misconduct or recklessness.
Indemnification pursuant to Section 1746 under any bylaw, agreement, vote of
shareholders, or directors or otherwise may be granted for any action taken or
any failure to take any action and may be made whether or not the corporation
would have the power to indemnify the person under any other provision of law
except as provided in such Section 1746 and whether or not the indemnified
liability arises or arose from any threatened, pending or completed action by or
in the right of the corporation. Section 1746 declares such indemnification to
be consistent with the public policy of Pennsylvania.
The foregoing is only a general summary of certain aspects of Pennsylvania law
dealing with indemnification of directors and officers and does not purport to
be complete. It is qualified in its entirety by reference to the relevant
statutes which contain detailed specific provisions regarding the circumstances
under which the person for whose benefit indemnification shall or may be made
and accordingly are incorporated herein by reference as Exhibit 99.2 of this
registration statement.
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <S>
4.1 Specimen of the Registrant's Subordinated Term Notes due 3,
6, 9, 12, 18, 24, 30, 36, 48, 60, 84 and 120 Months*
4.2 Specimen of the Registrant's Subordinated Daily Notes*
4.3 Form of Indenture authorizing the Registrant's Securities
issued pursuant to this Registration Statement to be
qualified under the Trust Indenture Act, incorporated by
reference to Exhibit 4.7 of the Registrant's Registration
Statement on Form S-2, File No. 33-45888.
4.4 First Supplemental Indenture dated as of January 1, 1994
between the Registrant and the Trustee, incorporated by
reference to Exhibit 4.4 of the Registrant's Registration
Statement on Form S-3, File No. 33-61367.
</TABLE>
II-3
<PAGE> 20
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <S>
4.5 Form of Officer's Certificate setting forth the terms of (i)
the Registrant's Subordinated Notes due 3, 6, 9, 12, 18, 24,
30, 36, 48, 60, 84 and 120 Months, and (ii) the Registrant's
Subordinated Daily Cash Accounts, incorporated by reference
to Exhibit 4.5 of the Registrant's Registration Statement on
Form S-3, File No. 33-67440.
4.6 Form of Acceptance of Offer*
5 Opinion of Cohen & Grigsby, P.C. re: legality
12 Statement re: computation of ratios*
23.1 Consent of Cohen & Grigsby, P.C. (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP*
23.3 Consent of Hill, Barth & King, Inc.*
23.4 Consent of PricewaterhouseCoopers, LLP*
23.5 Consent of Hacker, Johnson, Cohen & Grieb, PA*
24 Powers of Attorney*
25 Statement of Eligibility of Trustee
99.1 Form of Prospectus Supplement*
99.2 Provisions of Pennsylvania law regarding indemnification of
directors and officers, incorporated by reference to Exhibit
99.3 of the Registrant's Registration Statement on Form S-4,
File No. 333-22909.
</TABLE>
* Previously Filed
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 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
II-4
<PAGE> 21
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore unenforceable. In the event that a claim for indemnification against
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 22
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 the
requirements for filing on Form S-3 and duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Hermitage, Commonwealth of Pennsylvania, on April 14, 1999.
F.N.B. CORPORATION
By /s/ JOHN D. WATERS
---------------------------------------
John D. Waters,
Vice President and Chief Financial
Officer
Pursuant to the requirements of Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman of the Board and
- ------------------------------------------------ Chief Executive Officer
Peter Mortensen (Principal Executive Officer)
* President, Chief Operating
- ------------------------------------------------ Officer and Director
Gary L. Tice
* Vice Chairman
- ------------------------------------------------
Stephen J. Gurgovits
* Vice President and Chief
- ------------------------------------------------ Financial Officer (Principal
John D. Waters Financial and Accounting
Officer)
* Director
- ------------------------------------------------
W. Richard Blackwood
* Director
- ------------------------------------------------
Alan C. Bomstein
* Director
- ------------------------------------------------
William B. Campbell
Director
- ------------------------------------------------
Charles T. Cricks
* Director
- ------------------------------------------------
Henry M. Ekker, Esq
* Director
- ------------------------------------------------
Thomas W. Hodge
</TABLE>
II-6
<PAGE> 23
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director
- ------------------------------------------------
James S. Lindsay
* Director
- ------------------------------------------------
Paul P. Lynch
* Director
- ------------------------------------------------
Edward J. Mace
* Director
- ------------------------------------------------
Robert S. Moss
* Director
- ------------------------------------------------
Richard C. Myers
Director
- ------------------------------------------------
William A. Quinn
* Director
- ------------------------------------------------
George A. Seeds
* Director
- ------------------------------------------------
William J. Strimbu
* Director
- ------------------------------------------------
Archie O. Wallace
* Director
- ------------------------------------------------
Joseph M. Walton
* Director
- ------------------------------------------------
James T. Weller
* Director
- ------------------------------------------------
Eric J. Werner, Esq.
* Director
- ------------------------------------------------
R. Benjamin Wiley
Director
- ------------------------------------------------
Donna C. Winner
</TABLE>
*By: /s/ JOHN D. WATERS
-------------------------------
John D. Waters,
Attorney-in-Fact
April 14, 1999
II-7
<PAGE> 24
EXHIBIT INDEX
(PURSUANT TO ITEM 601(a) OF REGULATION S-K)
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
- ----------- ----------- ----------
<C> <S> <C>
4.1 Specimen of the Registrant's Subordinated Term Notes due 3,
6, 9, 12, 18, 24, 30, 36, 48, 60, 84 and 120 Months*
4.2 Specimen of the Registrant's Subordinated Daily Notes*
4.3 Form of Indenture authorizing the Registrant's Securities
issued pursuant to this Registration Statement to be
qualified under the Trust Indenture Act, incorporated by
reference to Exhibit 4.7 of the Registrant's Registration
Statement on Form S-2, File No. 33-45888.
4.4 First Supplemental Indenture dated as of January 1, 1994
between the Registrant and the Trustee, incorporated by
reference to Exhibit 4.4 of the Registrant's Registration
Statement on Form S-3, File No. 33-61367.
4.5 Form of Officer's Certificate setting forth the terms of (i)
the Registrant's Subordinated Notes due 3, 6, 9, 12, 18, 24,
30, 36, 48, 60, 84 and 120 Months, and (ii) the Registrant's
Subordinated Daily Cash Accounts, incorporated by reference
to Exhibit 4.5 of the Registrant's Registration Statement on
Form S-3, File No. 33-67440.
4.6 Form of Acceptance of Offer*
5 Opinion of Cohen & Grigsby, P.C. re: legality
12 Statement re: computation of ratios*
23.1 Consent of Cohen & Grigsby, P.C. (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP*
23.3 Consent of Hill, Barth & King, Inc.*
23.4 Consent of PricewaterhouseCoopers, LLP*
23.5 Consent of Hacker, Johnson, Cohen & Grieb, PA*
24 Powers of Attorney*
25 Statement of Eligibility of Trustee
99.1 Form of Prospectus Supplement*
99.2 Provisions of Pennsylvania law regarding indemnification of
directors and officers, incorporated by reference to Exhibit
99.3 of the Registrant's Registration Statement on Form S-4,
File No. 333-22909.
</TABLE>
* Previously Filed
<PAGE> 1
EXHIBIT 5
COHEN & GRIGSBY, P.C.
ATTORNEYS AT LAW
11 STANWIX STREET, 15TH FLOOR
PITTSBURGH, PENNSYLVANIA 15222-3115
TELEPHONE (412) 297-4900
FAX (412) 209-0672
March 31, 1999
F.N.B. Corporation
One F.N.B. Boulevard
Hermitage, PA 16148
Gentlemen:
We have acted as counsel to F.N.B. Corporation, a Pennsylvania
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of a Registration Statement on Form S-3
(the "Registration Statement") in order to register under the Securities Act of
1933, as amended, $125,000,000 aggregate principal amount of (i) Subordinated
Term Notes due 3, 6, 9, 12, 18, 24, 30, 36, 48, 60, 84 and 120 Months (in the
aggregate, the "Term Notes") and (ii) Subordinated Daily Notes (the "Daily
Notes") of the Company (the Term Notes and the Daily Notes are collectively
referred to herein as the "Securities") to be issued under an Indenture, dated
as of May 15, 1992, between the Company and Chase Manhattan Trust Company,
National Association, successor to Northern Central Bank, as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture between the
Company and the Trustee dated as of January 1, 1994 (collectively the
"Indenture").
In connection with the foregoing, we have examined:
(a) The Registration Statement and the exhibits and amendments thereto;
(b) The Company's Articles of Incorporation, as amended, and Bylaws,
as amended;
(c) The Indenture;
(d) The form of Officer's Certificate of the Company setting forth the
terms of the Term Notes and the Daily Notes;
(e) Such other corporate records and documents as we have considered
relevant, necessary or appropriate for purposes of this opinion.
<PAGE> 2
We have also assumed:
(i) the due authentication by or on behalf of the Trustee and
the due execution and delivery by the Company of the Securities; and
(ii) the issuance and sale of the Securities under the
Indenture as described in the Registration Statement, including receipt
by the Company of the full consideration for the Securities set forth
therein.
Based upon such examination and assumptions, we are of the
opinion that the Securities and the Indenture will be enforceable obligations of
the Company.
We hereby consent to the use of our name in the Registration
Statement under the caption "Legal Matters" in the Prospectus which constitutes
part of the Registration Statement and to the filing of this opinion as an
exhibit to the Registration Statement.
This Opinion Letter is governed by, and shall be interpreted
in accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section
of Business Law (1991) as supplemented or modified by Part I, together with the
Forward and Glossary of the Pennsylvania Third Party Legal Opinion Supplement
(the "Pennsylvania Supplement") of the PBA Section of Corporation, Banking and
Business Law (1992). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord and the
Pennsylvania Supplement, and this Opinion Letter should be read in conjunction
therewith. Unless otherwise indicated, capitalized terms used in this Opinion
that are defined in the Accord or the Pennsylvania Supplement will have the same
meanings in this Opinion as the meanings set forth in the Accord or the
Pennsylvania Supplement, respectively (and, to the extent of a conflict between
the same, priority shall be given to the Accord and the Pennsylvania Supplement
in that order).
Very truly yours,
COHEN & GRIGSBY, P.C.
DL:JDP/eph
<PAGE> 1
EXHIBIT 25
-------------------------------------------------------------------
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) ________
----------------------------------------
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
29-2933369
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
ONE OXFORD CENTRE, SUITE 1100
301 GRANT STREET, PITTSBURGH, PA 15219
(Address of principal executive offices) (Zip Code)
WILLIAM H. MCDAVID
THE CHASE MANHATTAN BANK
GENERAL COUNSEL
270 PARK AVENUE
NEW YORK, NEW YORK 10017
TEL: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
F.N.B. CORPORATION
(Exact name of obligor as specified in its charter)
PENNSYLVANIA 25-1255406
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE F.N.B. BOULEVARD
HERMITAGE, PA 16148
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
GENERAL
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.
Comptroller of the Currency, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
None.
NO RESPONSES ARE INCLUDED FOR ITEMS 3-15 OF THIS FORM T-1 BECAUSE THE OBLIGOR IS
NOT IN DEFAULT AS PROVIDED UNDER ITEM 13.
ITEM 16. LIST OF EXHIBITS
----------------
List below all exhibits filed as a part of this Statement of Eligibility.
1. EXHIBIT T1A(a) A copy of the Articles of Association of the
Trustee as now in effect.
2. EXHIBIT T1A(b) A copy of the Certificate of Authority of the Trustee
(previously known as New Trust Company, National
Association,) to commence business. Also included in
Exhibit TIA(b) are letters dated November 24, 1997
from the Comptroller of the Currency authorizing the
exercise of fiduciary powers by the Trustee and
acknowledging the name change of the Trustee.
3. EXHIBIT T1A(c) The Authorization of the Trustee to exercise
Exhibit T1a(b) corporate trust powers is contained in Exhibit
T1A(b).
4. EXHIBIT T1B A copy of the By-Laws of the Trustee as now in
effect.
5. EXHIBIT T1C Not applicable
6. EXHIBIT T1D The Trustee's consent required by Section 321(b)
of the Act.
7. EXHIBIT T1E A copy of the latest report of condition of the
Trustee, published pursuant to law or the
requirements of its supervising or examining
authority.
8. EXHIBIT T1F Not applicable
9. EXHIBIT T1G Not applicable
-2-
<PAGE> 3
EXHIBIT T1A(a)
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chase Manhattan Trust Company, National Association, 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
Pittsburgh and Pennsylvania, on the 17th day of March, 1999.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By /s/ Elaine D. Renn
--------------------------------
Elaine D. Renn
Vice President
-3-
<PAGE> 4
EXHIBIT T1A(a)
[LOGO]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
CHARTER NO. 23548
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to perform any lawful activities of
a national bank, the undersigned do enter into the following Articles of
Association:
FIRST. The title of this Association shall be Chase Manhattan Trust Company,
National Association (the "Association").
SECOND. The main office of the Association shall be in the City of Pittsburgh,
County of Allegheny, Commonwealth of Pennsylvania. The business of the
Association shall be limited to the fiduciary powers and the support of
activities incidental to the exercise of those powers. The Association will
obtain the prior written approval of the Office of the Comptroller of the
Currency before amending these Articles of Association to expand the scope of
its activities and services.
THIRD. The board of directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director, during the full term of his
directorship, shall own common or preferred stock of the Association or of a
holding company owning the Association, with an aggregate par, fair market or
equity value of not less than $1,000. Any vacancy in the board of directors may
be filled by action of the shareholders or a majority of the remaining
directors.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the board of directors
may designate, on the day of each year specified therefore in the by-laws, or if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in event of a legal holiday, on the following banking day, an election
may be held on any subsequent day within 60 days of the day fixed, to be
designated by the board of directors, or, if the directors fail to fix the day,
by shareholders representing two-thirds of the shares issued and outstanding.
Advance notice of the meeting may be duly waived by the sole shareholder in
accordance with 12 C.F.R. 7.2001.
A director may resign at any time by delivering written notice to the board of
directors, its Chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause.
-4-
<PAGE> 5
EXHIBIT T1A(a)
FIFTH. The authorized amount of capital stock of this Association shall be five
million dollars ($5,000,000), divided into fifty thousand (50,000) shares of
common stock of the par value of one hundred dollars ($ 100) each; but said
capital stock may be increased or decreased from time to time, according to the
provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued, or sold, nor
any right to subscription to any thereof other than such, if any, as the board
of directors, in its discretion may from time to time determine and at such
price as the board of directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH. The board of directors may appoint one of its members President of this
Association, and one of its members Chairperson of the board or two of its
members as Co-Chairpersons of the board, and shall have the power to appoint one
or more Vice Presidents, a Secretary who shall keep minutes of the directors'
and shareholders' meetings and be responsible for authenticating the records of
the Association, and such other officers and employees as may be required to
transact the business of this Association. A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of
directors in accordance with the by-laws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the Association in accordance with law.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial by-laws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal by-laws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a board of directors to
perform.
SEVENTH. The board of directors shall have the power to change the location of
the main office to any other location permitted under applicable law, without
the approval of the shareholders, and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location permitted under applicable law, without the approval of the
shareholders subject to approval by the Office of the Comptroller of the
Currency.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's board of directors may propose one or
more amendments to the Articles of Association for
submission to the shareholders.
-5-
<PAGE> 6
EXHIBIT T1A (b)
[LOGO]
Whereas, SATISFACTORY EVIDENCE HAS BEEN PRESENTED TO THE COMPTROLLER OF THE
CURRENCY THAT NEW TRUST COMPANY NATIONAL ASSOCIATION LOCATED IN PITTSBURGH STATE
OF PENNSYLVANIA HAS COMPLIED WITH ALL PROVISIONS OF THE STATUES OF THE UNITED
STATES REQUIRED TO BE COMPLIED WITH BEFORE BEING AUTHORIZED TO COMMENCE THE
BUSINESS OF BANKING AS A NATIONAL BANKING ASSOCIATION;
NOW, THEREFORE, I HEREBY CERTIFY THAT THE ABOVE NAMED
ASSOCIATION IS AUTHORIZED TO COMMENCE THE BUSINESS OF BANKING AS A NATIONAL
BANKING ASSOCIATION.
In Testimony whereof, witness
my signature and seal of
office this 24th days of
November 1997
/s/
-------------------------------
[SEAL] Charter No.
23548 Deputy Comptroller of the Currency
-6-
<PAGE> 7
- --------------------------------------------------------------------------------
Comptroller of the Currency EXHIBIT T1A (b)
Administrator of National Banks
- --------------------------------------------------------------------------------
November District
11 14 Avenue of the America's Suite 3900
New York, New York 10036
November 24, 1997
Joseph R. Bielawa
Vice President and Assistant General Counsel
The Chase Manhattan Bank
270 Park Avenue, 39th Floor
New York, New York 10017
Re: Change in Corporate Title
New Trust Company, National Association (Bank)
Pittsburgh, Pennsylvania
Dear Mr. Bielawa:
The Office of the Comptroller of the Currency (OCC) has received your
submission, concerning the change and amendment to Article First of the
above-referenced Bank's Articles of Association. The OCC has amended its records
to reflect that effective November 24, 1997, the corporate title of New Trust
Company, National Association, Charter Number 23548, was changed to "Chase
Manhattan Trust Company, National Association."
You are reminded that the OCC does not approve national bank name changes nor
dies it maintain official titles or the retention of alternate titles. The use
of other titles or the retention of the rights o any previously title is the
responsibility of the Bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal state law.
A copy of the amended Article as accepted for filing is enclosed for the Bank's
records.
Very truly yours
/s/ Linda Leickel
Linda Leickel
Senior Licensing Analyst
Charter No.:23548
Control No.: 97 NE 04 010 w/97 NE 01 022
-7-
<PAGE> 8
- --------------------------------------------------------------------------------
Comptroller of the Currency EXHIBIT T1A (b)
Administrator of National Banks
- --------------------------------------------------------------------------------
November District Licensing
1114 Avenue of the America's Suite 3900 Telephone (212) 790-4055
New York, New York 10036 Fax: (212) 790-4098
November 24, 1997
Mr. Daryl J. Zupan
President and CEO
New Trust Company, National Association
c/o Mellon Bank, N.A., Corporate Trust
Two Mellon Bank Center, Suite 325
Pittsburgh, Pennsylvania 15259
Re: Charter for a National Trust Bank, New Trust Company, National Association.
Pittsburgh, Pennsylvania
ACN 97 NE 01 0022
Dear Mr. Zupan:
The Comptroller of the Currency (OCC) has found that you have met all conditions
imposed by the OCC and completed all steps necessary to commence the business of
banking. Your charter certificate is enclosed. You are authorized to commence
business on November 24, 1997.
This letter also constitutes OCC authorization to exercise fiduciary powers.
You are reminded that several of the standard conditions contained in the
preliminary approval letter dated October 23, 1997 will continue to apply once
the bank opens and by opening, you agree to subject your association to these
conditions of operations. Some of the conditions bear reiteration here:
1. Regardless of the association's FDIC insurance status, the
association is subject to the Change in Bank Control act (12 U.S.C.
1817(j)) by virtue of its national bank charter. Please refer to
item 4 in the list of standard conditions sent with the preliminary
approval letter.
2. The board of directors is responsible for regular review and update
of policies and procedures and for assuring ongoing compliance with
them. This includes maintaining an internal control system that
ensures compliance with the currency reporting and record keeping
requirements of the Bank Secrecy Act (BSA). The board is expected
to train its personnel in BSA procedures and designate one person
or a group to monitor day-to-day compliance.
-8-
<PAGE> 9
Mr. Daryl J. Zupan
Page two
3. The bank will not engage in full commercial powers authorized to
national banks without the OCC's prior approval
Following the commencement of operations, bank management is urged to become
familiar with the requirements of the Securities Exchange Act of 1934 and Part
11 of the Comptroller's regulations relative to the registration of the bank's
equity securities and related periodic reports. These requirements will be
applicable to your bank when the number of shareholders of record is maintained
at 500 or more. Such registration may be subsequently terminated pursuant to the
Act, only when the number of shareholders of record is reduced to fewer than
300.
Should you have any questions regarding the supervision of your bank, please
contact the portfolio manager who will be responsible for OCC's ongoing
supervisory effort at your institution. You will be notified of the name and
number of the appropriate individual in the near future.
Sincerely,
/s/ Micheal G. Tiscia
Micheal G. Tiscia
Licensing Manager
Enclosure
cc: Official File
Field File
-9-
<PAGE> 10
EXHIBIT T1B
[LOGO]
CHASE MANHATTAN TRUST COMPANY,
National Association
BY-LAWS
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1.1. ANNUAL MEETING. The regular annual meeting of the shareholders to
elect directors and transact whatever other business may properly come before
the meeting, shall be held at the main office of the Association, or such other
place as the board may designate, and at such time in each year as may be
designated by the board of directors. Unless otherwise provided by law, notice
of the meeting may be waived by the Association's sole shareholder in accordance
with 12 C.F.R. Section 7.2001. If, for any cause, an election of directors is
not made on that date, or in the event of a legal holiday, on the next following
banking day, an election may be held on any subsequent day within 60 days of the
date fixed, to be designated by the board, or, if the directors fail to fix the
date, by shareholders representing two thirds of the shares issued and
outstanding.
SECTION 1.2. SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by a majority of the board of directors or by any one or more
shareholders owning, in the aggregate, not less than twenty-five percent of the
stock of the Association or by the Chairperson of the board of directors or the
President. Unless otherwise provided by law, advance notice of a special meeting
may be waived by the Association's Sole Shareholder in accordance with 12 C.F.R.
Section 7.2001.
SECTION 1.3. NOMINATIONS OF DIRECTORS. Nominations for election to the board of
directors may be made by the board of directors or by any stockholder of any
outstanding class of capital stock of the Association entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the Association, shall be made in writing and shall be
delivered or mailed to the President of the Association and to the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days
prior to any meeting of shareholders called for the election of directors,
provided, however, that if less than 21 days' notice of the meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Association and to the Comptroller of the Currency not later than the close
of business on the seventh (7th) day following the day on which the notice of
meeting was mailed. Such notification shall contain the following information to
the extent known to the notifying shareholder.
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
(3) The total number of shares of capital stock of the Association
that will be voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the Association owned
by the notifying shareholder.
Nominations not made in accordance herewith may, in his/her discretion, be
disregarded by the Chairperson of the meeting, and upon his/her instructions,
the vote tellers may disregard all votes cast for each such nominee.
SECTION 1.4. PROXIES. Shareholders may vote at any meeting of the shareholders
by proxies duly authorized in writing, but no officer or employee of this
Association shall act as proxy. Proxies shall be valid only for one meeting to
be specified therein, and any adjournments of such meeting. Proxies shall be
dated and filed with the records of the meeting. Proxies with rubber stamped
facsimile signatures may be used and unexecuted proxies may be counted upon
receipt of a confirming telegram from the shareholder. Proxies meeting above
requirements submitted at any time during a meeting shall be accepted.
SECTION 1.5 QUORUM. A majority of the outstanding capital stock, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant
to Section 10.2, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held, as adjourned, without further notice. A
majority
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of the votes cast shall decide every question or matter submitted to the
shareholders at any meeting, unless otherwise provided by law or by the Articles
of Association, or by the shareholders or directors pursuant to Section 10.2.
Any action required or permitted to be taken by the shareholders may be taken
without a meeting by unanimous written consent of the shareholders to a
resolution authorizing the action. The resolution and the written consent shall
be filed with the minutes of the proceedings of the shareholders.
ARTICLE II. DIRECTORS
SECTION 2.1. BOARD OF DIRECTORS. The board of directors ("board") shall have the
power to manage and administer the business and affairs of the Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the board.
SECTION 2.2. NUMBER. The board shall consist of not less than five nor more than
twenty-five persons, the exact number within such minimum and maximum limits to
be fixed and determined from time to time by resolution of a majority of the
full board or by resolution of a majority of the shareholders at any meeting
thereof; provided, however, that a majority of the full board may not increase
the number of directors to a number which: (1) exceeds by more than two the
number of directors last elected by shareholders where such number was 15 or
less; and (2) exceeds by more than four the number of directors last elected by
shareholders where such number was 16 or more, but in no event shall the number
of directors exceed 25.
SECTION 2.3. ORGANIZATION MEETING. The Secretary shall notify the
directors-elect of their election and of the time at which they are required to
meet at the main office of the Association to organize the new board and elect
and appoint officers of the Association for the succeeding year. Such meeting
shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within 30 days thereof. If, at the time fixed for such
meeting, there shall not be a quorum, the directors present may adjourn the
meeting, from time to time, until a quorum is obtained.
SECTION 2.4. REGULAR MEETINGS. The time and location of regular meetings of the
board shall be set by the board. Such meetings may be held without notice. Any
business may be transacted at any regular meeting. The board may adopt any
procedures for the notice and conduct of any meetings as are not prohibited by
law.
SECTION 2.5. SPECIAL MEETINGS. Special meetings of the board may be called at
the request of the Chairperson or Co-Chairperson of the board, the President, or
three or more directors. Each member of the board shall be given notice stating
the time and place, by telegram, telephone, letter or in person, of each such
special meeting at least one day prior to such meeting. Any business may be
transacted at any special meeting.
SECTION 2.6. ACTION BY THE BOARD. Except as otherwise provided by law, corporate
action to be taken by the board shall mean such action at a meeting of the
board. Any action required or permitted to be taken by the board or any
committee of the board may be taken without a meeting if all members of the
board or the committee consent in writing to a resolution authorizing the
action. The resolution and the written consents thereto shall be filed with the
minutes of the proceedings of the board or committee. Any one or more members of
the board or any committee may participate in a meeting of the board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at such
meeting.
SECTION 2.7. WAIVER OF NOTICE. Notice of a special meeting need not be given to
any director who submits a signed waiver of notice, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to him or her.
SECTION 2.8. QUORUM AND MANNER OF ACTING. Except as otherwise required by law,
the Articles of Association or these by-laws, a majority of the directors shall
constitute a quorum for the transaction of any business at any meeting of the
board and the act of a majority of the directors present and voting at a meeting
at which a quorum is present shall be the act of the board. In the absence of a
quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present and no notice of any adjourned meeting need
be given. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
SECTION 2.9. VACANCIES. In the event a majority of the full board increases the
number of directors to a number which exceeds the number of directors last
elected by shareholders, as permitted by Section 2.2, directors may be appointed
to fill the resulting vacancies
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by vote of such majority of the full board. In the event of a vacancy in the
board for any other cause, a director may be appointed to fill such vacancy by
vote of a majority of the remaining directors then in office.
SECTION 2.10. REMOVAL OF DIRECTORS. The vacancy created by the removal of a
director pursuant to this Section may be filled by the board in accordance with
Section 2.9 of these by-laws or by the shareholders.
ARTICLE III. COMMITTEES
SECTION 3.1. EXECUTIVE COMMITTEE. There may be an executive committee consisting
of the Chairperson or Co-Chairperson of the board and not less than two other
directors appointed by the board annually or more often. Subject to the
limitations in Section 3.4(g) of these by-laws, the executive committee shall
have the maximum authority permitted by law.
SECTION 3.2. AUDIT COMMITTEE. There may be an audit committee composed of not
less than two directors, exclusive of any active officers, appointed by the
board annually or more often, whose duty it shall be to make an examination at
least once during each calendar year and within fifteen months of the last
examination into the affairs of the Association, or cause continuous suitable
examinations to be made, by auditors responsible only to the board, and to
report the results of any such examinations in writing to the board from time to
time. Such examinations shall include audits of the fiduciary business of the
Association as may be required by law or regulation.
SECTION 3.3. OTHER COMMITTEES. The board may appoint, from time to time, other
committees of one or more persons, for such purposes and with such powers as the
board may determine.
SECTION 3.4. GENERAL. (a) Each committee shall elect a Chairperson from among
the members thereof and shall also designate a Secretary of the committee, who
shall keep a record of its proceedings.
(b) Vacancies occurring from time to time in the membership of
any committee shall be filled by the board for the unexpired term of the member
whose departure causes such vacancy. The board may designate one or more
alternate members of any committee, who may replace any absent member or members
at any meeting of such committee.
(c) Each committee shall adopt its own rules of procedure and
shall meet at such stated times as it may, by resolution, appoint. It shall also
meet whenever called together by its Chairperson or the Chairperson of the
board.
(d) No notice of regular meetings of any committee need be
given. Notice of every special meeting shall be given either by mailing such
notice to each member of such committee at his or her address, as the same
appears in the records of the Association, at least two days before the day of
such meeting, or by notifying each member on or before the day of such meeting
by telephone or by personal notice, or by leaving a written notice at his or her
residence or place of business on or before the day of such meeting. Waiver of
notice in writing of any meeting, whether prior or subsequent to such meeting,
or attendance at such meeting, shall be equivalent to notice of such meeting.
Unless otherwise indicated in the notice thereof, any and all business may be
transacted at any special meeting.
(e) All committees shall, with respect to all matters, be
subject to the authority and direction of the board and shall report to it when
required.
(f) Unless otherwise required by law, the Articles of
Association or these by-laws, a quorum at any meeting of any committee shall be
one-third of the full membership and present shall be the act of the committee.
(g) No committee shall have authority to take any action which
is expressly required by law or regulation to be taken at a meeting of the board
or by a specified proportion of directors.
ARTICLE IV. OFFICERS AND EMPLOYEES
SECTION 4.1. CHAIRPERSON OF THE BOARD. The board shall appoint one of its
members to be the Chairperson of the board, or two persons to serve as
Co-Chairperson of the board to serve at its pleasure. Such person shall preside
at all meetings of the board. The Chairperson or Co-Chairpersons of the board
shall supervise the carrying out of the policies adopted or approved by the
board; shall have general executive powers, as well as the specific powers
conferred by these by-laws; and shall also have and may exercise such further
powers and duties as from time to time may be conferred upon, or assigned by the
board.
SECTION 4.2. PRESIDENT. The board may appoint one of its members to be the
President of the Association. In the absence of the Chairperson or
Co-Chairpersons, the President shall preside at any meeting of the board. The
President shall have general executive
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powers, and shall have and may exercise any and all other powers and duties
pertaining by law, regulation, or practice to the office of President, or
imposed by these by-laws. The President shall also have and may exercise such
further powers and duties as from time to time may be conferred, or assigned by
the board.
SECTION 4.3. VICE PRESIDENT. The board may appoint one or more Vice Presidents.
Each Vice President shall have such powers and duties as may be assigned by the
board.
SECTION 4.4. SECRETARY. The board shall appoint a Secretary, Cashier, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these by-laws; shall be custodian of the
corporate seal, records, documents and papers of the Association; shall provide
for the keeping of proper records of all transactions of the Association; shall
have and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the office of Cashier, or imposed by these by-laws;
and shall also perform such other duties as may be assigned from time to time,
by the board.
SECTION 4.5. OTHER OFFICERS. The board may appoint one or more Assistant Vice
Presidents, one or more Trust Officers, one or more Assistant Secretaries, one
or more Assistant Cashiers, one or more Managers and Assistant Managers of
branches and such other officers and attorneys in fact as from time to time may
appear to the board to be required or desirable to transact the business of the
Association. Such officers shall respectively exercise such powers and perform
such duties as pertain to their several offices, or as may be conferred upon, or
assigned to, them by the board, the Chairperson or Co-Chairpersons of the board,
or the President. The board may authorize an officer to appoint one or more
officers or assistant officers.
SECTION 4.6. RESIGNATION. An officer may resign at any time by delivering notice
to the Association. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
ARTICLE V. FIDUCIARY ACTIVITIES
SECTION 5.1. TRUST COMMITTEE. There shall be a Trust Committee of this
Association composed of four or more members, who shall be capable and
experienced officers or directors of the Association. The Committee is charged
with the responsibility for the investment, retention, or disposition of assets
held in accounts with respect to which the Association has investment authority;
for the review of the assets of accounts for which the Association has
investment authority promptly after the acceptance of such an account and at
least once during every calendar year thereafter to determine the advisability
of retaining or disposing of such assets; for the determination of the manner in
which proxies received for accounts for which the Association has responsibility
for the voting of proxies shall be voted; for the determination of all
substantial questions involving discretionary authority of the Association of a
non-investment nature, including, but not limited to, distribution of principal
and/or income in respect of any account; for providing advice as to the
investment, retention, or disposition of assets in investment advisory accounts
maintained by the Association; for the making of such reports as this board
shall require; and for such other responsibilities as may be assigned by this
board. The Trust Committee, in discharging its aforementioned responsibilities,
may authorize officers of the Association to exercise such powers and under such
conditions as the Committee may from time to time prescribe.
SECTION 5.2. TRUST INVESTMENTS. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship and
local law. Where such instrument does not specify the character and class of
investments to be made and does not vest in the Association a discretion in the
matter, funds held pursuant to such instrument shall be invested in investments
in which corporate fiduciaries may invest under applicable law.
SECTION 5.3. TRUST AUDIT COMMITTEE. The board shall appoint a committee of at
least two directors, exclusive of any active officer of the association, which
shall, at least once during each calendar year make suitable audits of the
association's fiduciary activities or cause suitable audits to be made by
auditors responsible only to the board, and at such time shall ascertain whether
fiduciary powers have been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound fiduciary principles.
SECTION 5.4. FIDUCIARY FILES. There shall be maintained by the association all
fiduciary records necessary to assure that its fiduciary responsibilities have
been properly undertaken and discharged.
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ARTICLE VI. STOCK AND STOCK CERTIFICATES
SECTION 6.1. TRANSFERS. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his or her shares, succeed to all rights of the prior
holder of such shares. The board may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the Association with respect
to stock transfers, voting at shareholder meetings, and related matters and to
protect it against fraudulent transfers.
SECTION 6.2. STOCK CERTIFICATES. Certificates of stock shall bear the signature
of the Chairperson or Co-Chairpersons of the board or President (which may be
engraved, printed or impressed), and shall be signed manually or by facsimile
process by the Secretary, Assistant Secretary, Cashier, Assistant Cashier, or
any other officer appointed by the board for that purpose, to be known as an
authorized officer, and the seal of the Association shall be engraved thereon.
Each certificate shall recite on its face that the stock represented thereby is
transferable only upon the books of the Association properly endorsed. In case
any such officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such before such certificate is
issued, it may be issued by the Association with the same effect as if such
officer had not ceased to be such at the time of its issue. The corporate seal
may be a facsimile, engraved or printed.
ARTICLE VII. CORPORATE SEAL
SECTION 7.1. CORPORATE SEAL. The Chairperson, the President, the Cashier, the
Secretary or any Assistant Cashier or Assistant Secretary, or other officer
thereunto designated by the board, shall have authority to affix the corporate
seal to any document requiring such seal, and to attest the same. Such seal
shall be substantially in the following form: A circle, with the words "Chase
Manhattan Trust Company, National Association" within such circle.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
SECTION 8.1. FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
SECTION 8.2. EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Association by the Chairperson or Co-Chairpersons of the board, or the
President, or any Vice Chairperson, or any Managing Director, or any Vice
President, or any Assistant Vice President, or the Chief Financial Officer, or
the Controller, or the Secretary, or the Cashier, or, if in connection with
exercise of fiduciary powers of the Association, by any of those officers or by
any Trust Officer. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the Association in such other
manner and by such other officers as the board may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
by-laws.
SECTION 8.3. RECORDS. The Articles of Association, the by-laws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for that purpose. The minutes of each meeting shall be signed by the Secretary,
Cashier or other officer appointed to act as Secretary of the meeting.
SECTION 8.4. CORPORATE GOVERNANCE PROCEDURES. To the extent not inconsistent
with applicable Federal banking law, bank safety and soundness or these by-laws,
the corporate governance procedures found in the Delaware General Corporation
Law shall be followed by the Association.
ARTICLE IX. INDEMNIFICATION
SECTION 9.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Association or is or was serving at the request of
the Association as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise,
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including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Association to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Association to provide broader indemnification
rights than such law permitted the Association to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section 9.3 of these
by-laws with respect to proceedings to enforce rights to indemnification, the
Association shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the board.
SECTION 9.2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to indemnification
conferred in Section 9.1 of these by-laws shall include the right to be paid by
the Association the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Association of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 9.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 9.1 and 9.2 of these by-laws shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnities heirs, executors and administrators.
SECTION 9.3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 9.1 or
9.2 of these by-laws is not paid in full by the Association within sixty (60)
days after a written claim has been received by the Association except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Association to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Association to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (1) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (2) any suit brought by the Association to recover an
advancement of expenses pursuant to the terms of an undertaking, the Association
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Association
(including the board, the Association's independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Association (including the board, the Association's independent legal counsel,
or its shareholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Association to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article IX or otherwise shall be on the Association.
SECTION 9.4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Article IX shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Association's Articles of Association, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
SECTION 9.5. INSURANCE. The Association may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Association or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Association would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 9.6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE ASSOCIATION. The
Association may, to the extent authorized from time to time by the board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Association
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to the fullest extent of the provisions of this Article IX with respect to the
indemnification and advancement of expenses of directors and officers of the
Association.
ARTICLE X. BY-LAWS
SECTION 10.1. INSPECTION. A copy of the by-laws, with all amendments, shall at
all times be kept in a convenient place at the main office of the Association,
and shall be open for inspection to all shareholders during banking hours.
SECTION 10.2. AMENDMENTS. The by-laws may be amended, altered or repealed, at
any regular meeting of the board by a vote of a majority of the total number of
the directors except as provided below. The Association's shareholders may amend
or repeal the by-laws even though the by-laws may be amended or repealed by its
board.
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EXHIBIT T1D
Consent for Records of Governmental Agencies
to be Made Available to the Commission
The undersigned, Chase Manhattan Trust Company, National Association,
Pittsburgh, Pennsylvania pursuant to Section 321(b) of The Trust Indenture Act
of 1939, hereby authorizes the Board of Governors of the Federal Reserve System,
the Federal Reserve Banks, the Treasury Department, the Comptroller of the
Currency and the Federal Deposit Insurance Corporation, under such conditions as
they may prescribe, to make available to the Commission such reports, records or
other information as they may have available with respect to the undersigned as
a prospective trustee under an indenture to be qualified under the aforesaid
Trustee Indenture Act of 1939 and to make through their examiners or other
employees for the use of the Commission, examinations of the undersigned
prospective Trustee.
The undersigned also, pursuant to Section 321(b) of said Trust Indenture
Act of 1939, consents that reports of examination by the Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Commission upon request therefor.
Dated this 11th day of December , 1998.
Chase Manhattan Trust Company,
National Association
By: /s/ Timothy J. Vara
-------------------------
Timothy J. Vara
Vice President
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EXHIBIT T1E
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
STATEMENT OF CONDITION
DECEMBER 31, 1998
<TABLE>
<CAPTION>
($000)
--------
<S> <C>
ASSETS
Cash and Due From Banks $ 6,388
Securities Available for Sale 3,027
Premises and Fixed Assets
653
Intangible Assets
186,910
--------
Total Assets $196,978
========
LIABILITIES
Sundry Liabilities and Accrued Expenses $ 4,635
--------
STOCKHOLDER'S EQUITY
Common Stock $ 5,000
Surplus 180,000
Retained Earnings 7,343
--------
Total Stockholder's Equity $192,343
--------
Total Liabilities and Stockholder's Equity $196,978
========
</TABLE>
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