<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 3, 1998
REGISTRATION NOS.
333- ,
333- ,
333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<CAPTION>
<S> <C> <C>
CENDANT CORPORATION DELAWARE 06-0918165
CENDANT CAPITAL II DELAWARE 22-356523
CENDANT CAPITAL III DELAWARE 22-3565321
(EXACT NAME OF THE REGISTRANTS (State or other Jurisdiction of (I.R.S. Employer
AS SPECIFIED IN THEIR RESPECTIVE CHARTERS) Incorporation or Organization) Identification No.)
</TABLE>
6 SYLVAN WAY
PARISPPANY, NEW JERSEY 07054
(973) 428-9700
FAX: (973) 496-5331
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JAMES E. BUCKMAN, ESQ.
SENIOR EXECUTIVE VICE PRESIDENT
AND GENERAL COUNSEL
CENDANT CORPORATION
6 SYLVAN WAY
PARSIPPANY, NEW JERSEY 07054
(973) 428-9700
FAX: (973) 496-5331
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPIES TO:
<TABLE>
<CAPTION>
<S> <C>
VINCENT J. PISANO, ESQ. ERIC J. BOCK, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP VICE PRESIDENT-LEGAL
919 THIRD AVENUE CENDANT CORPORATION
NEW YORK, NY 10022 6 SYLVAN WAY
(212) 735-3000 PARSIPPANY, NEW JERSEY 07054
FAX: (212) 735-2000 (973) 428-9700
FAX: (973) 496-5331
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
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. [ ]
<PAGE>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED
OFFERING PRICE MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PER AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED SECURITY(1) OFFERING PRICE(1) FEE
- -------------------------------------------- ----------------- -------------- --------------------- --------------
<S> <C> <C> <C> <C>
Debt Securities(2) ..........................
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Common Stock, $.01 par value ................
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Preferred Stock, par value $.01 .............
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Stock Purchase Units of Cendant Corporation
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Stock Purchase Contracts of Cendant
Corporation ................................
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Warrants of Cendant Corporation .............
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Preferred Securities of Cendant Capital II .
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Preferred Securities of Cendant Capital III
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Guarantees and backup Undertakings of
Cendant Corporation in connection with
Preferred Securities of Cendant Capital II
and Cendant Capital III ....................
- -------------------------------------------- ----------------- -------------- --------------------- --------------
Total....................................... $3,000,000,000(3) 100% $3,000,000,000(3)(4) $885,000
- -------------------------------------------- ----------------- -------------- --------------------- --------------
</TABLE>
- -----------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(i).
(2) Also includes such indeterminate number of Debt Securities, shares of
Common Stock, shares of Preferred Stock, Stock Purchase Units, Stock
Purchase Contracts, Guarantees and Warrants of Cendant Corporation, or
Preferred Securities of Cendant Capital II and Cendant Capital III as
may be issued upon conversion or exchange of any of the Debt Securities
or Preferred Stock that provide for conversion or exchange into other
securities.
(3) Such amount represents the principal amount of any Debt Securities
issued at their principal amount, the issue price rather than the
principal amount of any Debt Securities issued at original issue
discount, the liquidation preference of any Preferred Stock and the
amount computed pursuant to Rule 457(i) for any Common Stock.
(4) No separate consideration will be received for Debt Securities,
Preferred Stock, Common Stock, Stock Purchase Units, Stock Purchase
Contracts, Guarantees and Warrants of Cendant Corporation, or Preferred
Securities of Cendant Capital II and Cendant Capital III issuable upon
conversion or exchange of the Debt Securities or Preferred Stock.
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.
<PAGE>
PROSPECTUS
$3,000,000,000
CENDANT CORPORATION
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK,
STOCK PURCHASE CONTRACTS, STOCK PURCHASE UNITS AND WARRANTS
CENDANT CAPITAL II
CENDANT CAPITAL III
PREFERRED SECURITIES FULLY AND UNCONDITIONALLY GUARANTEED
BY CENDANT CORPORATION
Cendant Corporation (the "Company"), directly or through such agents,
dealers or underwriters as may be designated from time to time, may offer,
issue and sell, together or separately, its (i) debt securities (the "Debt
Securities"), which may be senior debt securities (the "Senior Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (ii) shares of its preferred stock, par value $0.01 per share
(the "Preferred Stock"), (iii) shares of its common stock, par value $0.01
per share (the "Common Stock"), (iv) Stock Purchase Contracts ("Stock
Purchase Contracts") to purchase shares of Common Stock, (v) Stock Purchase
Units, each representing ownership of a Stock Purchase Contract and Preferred
Securities (as defined herein) or debt obligations of third parties,
including U.S. Treasury securities, securing the holder's obligation to
purchase Common Stock under the Stock Purchase Contracts ("Stock Purchase
Units") and (vi) warrants to purchase Debt Securities, Preferred Stock,
Common Stock or other securities or rights ("Warrants").
Cendant Capital II and Cendant Capital III (each, a "Cendant Trust"),
statutory business trusts formed under the laws of the State of Delaware, may
offer, from time to time, preferred securities, representing preferred
undivided beneficial interests in the assets of the respective Cendant Trusts
("Preferred Securities"). The payment of periodic cash distributions
("Distributions") with respect to Preferred Securities out of moneys held by
each of the Cendant Trusts, and payments on liquidation, redemption or
otherwise with respect to such Preferred Securities, will be guaranteed by
the Company to the extent described herein (each, a "Trust Guarantee"). See
"Description of Preferred Securities" and "Description of Trust Guarantees."
The Company's obligations under the Trust Guarantees will rank junior and
subordinate in right of payment to all other liabilities of the Company and
on a parity with its obligations under the senior most preferred or
preference stock of the Company. See "Description of Trust Guarantees--Status
of the Trust Guarantees." Debt Securities may be issued and sold by the
Company in one or more series to a Cendant Trust or a trustee of such Cendant
Trust in connection with the investment of the proceeds from the offering of
Preferred Securities and Common Securities (as defined herein) of such
Cendant Trust. The Debt Securities purchased by a Cendant Trust may be
subsequently distributed pro rata to holders of Preferred Securities and
Common Securities in connection with the dissolution of such Cendant Trust.
The Debt Securities, Preferred Stock, Common Stock, Stock Purchase Contracts,
Stock Purchase Units, Warrants and Preferred Securities are herein
collectively referred to as the "Securities," with an aggregate public
offering price of up to $3,000,000,000 (or its equivalent in foreign
currencies or foreign currency units based on the applicable exchange rate at
the time of offering) in amounts, at prices and on terms to be determined at
the time of sale.
The form in which the Securities are to be issued, their specific
designation, aggregate principal amount or aggregate initial offering price,
maturity, if any, rate and times of payment of interest or dividends, if any,
redemption, conversion, and sinking fund terms, if any, voting or other
rights, if any, exercise price and detachability, if any, and other specific
terms will be set forth in a Prospectus Supplement (the "Prospectus
Supplement"), together with the terms of offering of such Securities. Any
such Prospectus Supplement will also contain information, as applicable,
about certain material United States Federal income tax considerations
relating to the particular Securities offered thereby.
The Declaration of Trust for each of such Trusts also provides that to the
full extent permitted by law, the Company shall indemnify any Company
Indemnified Person who was or is a party or is threatened to be made a party
<PAGE>
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of any such Trust) by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys' fees),
judgments, fines and amounts paid insettlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of any such Trust,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe such person's conduct was unlawful. Each of the Declaration
of Trusts also provides that to the full extent permitted by law, the Company
shall indemnify any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of any such trust to procure a judgment in its
favor by reason of the fact that such person is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of any such
trust and except that no such indemnification shall be made in respect of any
claim, issue or matter as to which such Company Indemnified Person shall have
been adjudged to be liable to any such trust unless and only to the extent
that the Court of Chancery of Delaware or the court in which such action or
suit was brought shall determine 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
which such Court of Chancery or such other court shall deem proper. The
Declaration of Trust for each such Trust further provides that expenses
(including attorneys' fees) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in the immediately preceding two sentences shall be
paid by the Company in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the Company as
authorized in any such Declaration.
The Declaration of Trust for each Trust also provides that the Company
shall indemnify each Fiduciary Indemnified Person against any loss, liability
or expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts under any such Trust, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties thereunder.
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol "CD". Any Prospectus Supplement will also contain information,
where applicable, as to any other listing on a securities exchange of the
Securities covered by such Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. The
Company reserves the sole right to accept, and together with its agents, from
time to time, to reject in whole or in part any proposed purchase of
Securities to be made directly or through agents. If any agents or
underwriters are involved in the sale of any Securities, the names of such
agents or underwriters and any applicable fees, commissions or discounts will
be set forth in the applicable Prospectus Supplement. See "Plan of
Distribution."
This Prospectus may not be used to consummate any sale of Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is April , 1998
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS OR INCORPORATED HEREIN BY REFERENCE IN CONNECTION WITH THE
OFFERING DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY UNDERWRITER, DEALER OR AGENT INVOLVED IN THE OFFERING
DESCRIBED HEREIN. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THOSE SPECIFICALLY
OFFERED HEREBY OR OF ANY SECURITIES OFFERED HEREBY IN ANY JURISDICTION WHERE,
OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION
IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
This Prospectus constitutes a part of a combined Registration Statement on
Form S-3 (together with all the amendments and exhibits thereto, the
"Registration Statement") filed by the Company and the Cendant Trusts with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Securities. This Prospectus does not contain all of the information set
forth in such Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission, although it does
include a summary of the material terms of the Indenture and the Declaration
of Trust (each as defined herein). Reference is made to such Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company, the Cendant Trusts and the Securities. Any statements
contained herein concerning the provisions of any document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission
or incorporated by reference herein are not necessarily complete, and, in
each instance, reference is made to the copy of such document so filed for a
more complete description of the matter involved. Each such statement is
qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy and information statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at prescribed rates at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, IL 60661 and 7 World Trade Center, 13th Floor,
New York, New York 10048. The Commission also maintains a website that
contains reports, proxy and information statements and other information. The
website address is http.//www.sec.gov. In addition, such material can be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
No separate financial statements of the Cendant Trusts have been included
or incorporated by reference herein. The Company does not consider that such
financial statements would be material to holders of the Preferred Securities
because (i) all of the voting securities of the Cendant Trusts will be owned,
directly or indirectly, by the Company, a reporting company under the
Exchange Act, (ii) the Cendant Trusts have and will have no independent
operations but exist for the sole purpose of issuing securities representing
undivided beneficial interests in their assets and investing the proceeds
thereof in Subordinated Debt Securities issued by the Company, and (iii) the
Company's obligations described herein and in any accompanying Prospectus
Supplement, under the Declaration (as defined herein)(including the
obligation to pay expenses of the Cendant Trusts), the Subordinated Indenture
and any supplemental indentures thereto, the Subordinated Debt Securities
issued to the Cendant Trust and the Trust Guarantees taken together,
constitute a full and unconditional guarantee by the Company of payments due
on the Preferred Securities. See "Description of Preferred Securities of the
Cendant Trusts" and "Description of Trust Guarantees."
The Cendant Trusts are not currently subject to the information reporting
requirements of the Exchange Act. The Cendant Trusts will become subject to
such requirements upon the effectiveness of the Registration Statement,
although they intend to seek and expect to receive exemptions therefrom.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the
Commission pursuant to the Exchange Act are incorporated herein by reference:
(i) Annual Report on Form 10-K for the fiscal year ended December 31, 1997
(the "1997 Form 10-K"); (ii) Current Reports on Form 8-K dated January 14,
1998, January 22, 1998, January 27, 1998, January 29, 1998, February 4, 1998,
February 6, 1998, February 16, 1998, March 6, 1998, March 10, 1998 and March
25, 1998; and (iii) description of the common stock of the Company which is
contained in the Registration Statements on Form 8-A of the Company dated
July 27, 1984 and August 15, 1989.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities shall be deemed to
be incorporated herein by reference and to be a part hereof from the date of
filing of such documents. Any statement contained in this Prospectus or in a
document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated herein by reference or
in any Prospectus Supplement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any or all of the documents referred to above which have
been or may be incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference in
such documents). Requests for such copies should be directed to James E.
Buckman, Esq., Senior Executive Vice President and General Counsel, Cendant
Corporation, 6 Sylvan Way, Parsippany, New Jersey 07054, (Telephone: (973)
428-9700).
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICES OF THE SECURITIES
OFFERED HEREBY, INCLUDING STABILIZING TRANSACTIONS, THE PURCHASE OF
SECURITIES TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF PENALTY
BIDS.
3
<PAGE>
THE COMPANY
The Company is one of the foremost consumer and business services
companies in the world. The Company was created through the merger (the
"Merger") of CUC International Inc. ("CUC") and HFS Incorporated ("HFS") in
December 1997 with CUC surviving and being renamed Cendant Corporation. The
Company provides all the services formerly provided by each of CUC and HFS
including technology-driven membership-based consumer services, travel
services and real estate services.
Within three principal operating segments--membership, travel and real
estate services--the Company's businesses provide a wide range of
complementary consumer and business services. The travel segment facilitates
vacation timeshare exchanges, manages corporate and government vehicle fleets
and franchises car rental and hotel businesses; the real estate segment
assists in employee relocation, provides home buyers with mortgages and
franchises real estate brokerage businesses; and the membership segment
provides an array of value driven services through more than 20 membership
clubs. The Company also offers tax preparation services, consumer software in
various multimedia forms, information technology services, credit information
services and financial products.
The Company's membership-based consumer services provide more than 66.5
million members with access to a variety of goods and services worldwide.
These memberships include such components as shopping, travel, auto, dining,
home improvement, lifestyle, credit card and checking account enhancement
packages, financial products and discount programs. The Company also
administers insurance package programs which are generally combined with
discount shopping and travel for credit union members. The Company believes
that it is the leading provider of membership-based consumer services of
these types in the United States. The Company's membership activities are
conducted principally through Cendant Membership Services, Inc. and certain
of the Company's other wholly-owned subsidiaries, including FISI*Madison
Financial Corporation, Benefit Consultants, Inc., Entertainment Publications,
Inc. and SafeCard Services, Incorporated.
In the travel industry, the Company, through certain of its subsidiaries,
franchises hotels primarily in the mid-priced and economy markets. The
Company is the world's largest hotel franchisor, operating the Days
Inn(Registered Trademark), Ramada(Registered Trademark) (in the United
States), Howard Johnson(Registered Trademark), Super 8(Registered Trademark),
Travelodge(Registered Trademark) (in North America), Villager
Lodge(Registered Trademark), Knights Inn(Registered Trademark) and Wingate
Inn(Registered Trademark) franchise systems. Additionally, the Company owns
the Avis worldwide vehicle rental franchise system which, operated by its
franchisees, is the second-largest car rental system in the world (based on
total revenues and volume of rental transactions). The Company currently owns
approximately 20% of the capital stock of the world's largest Avis
franchisee, Avis Rent A Car, Inc. The Company also owns Resort Condominiums
International, LLC, the world's leading timeshare exchange organization, and
PHH Vehicle Management Services Corporation which operates the second largest
provider in North America of comprehensive vehicle management services, and
is the market leader in the United Kingdom among the four nationwide
providers of fuel card services and the six nationwide providers of vehicle
management services. The Company also operates the world's leading
value-added tax refund service for travelers.
In the residential real estate industry, the Company, through certain of
its subsidiaries, franchises real estate brokerage offices under the CENTURY
21(Registered Trademark), Coldwell Banker(Registered Trademark) and
Electronic Realty Associates(Registered Trademark) (ERA(Registered
Trademark)) real estate brokerage franchise systems and is the world's
largest real estate brokerage franchisor. Additionally, the Company, through
Cendant Mobility Services Corporation, is the largest provider of corporate
relocation services in the United States, offering relocation clients a
variety of services in connection with the transfer of a client's employees.
Through Cendant Mortgage Corporation, the Company originates, sells and
services residential mortgage loans in the United States, marketing such
services to consumers through relationships with corporations, affinity
groups, financial institutions, real estate brokerage firms and mortgage
banks.
Through the acquisition of Jackson Hewitt, Inc. on January 7, 1998, the
Company operates the second largest tax preparation service system in the
United States with locations in 43 states. The Company franchises a system of
approximately 2,000 offices that specialize in computerized preparation of
federal and state individual income tax returns.
4
<PAGE>
The Company also offers consumer software in various multimedia forms,
predominately on CD-ROM for personal computers. The Company's Cendant
Software unit is one of the largest personal computer consumer software
groups in the world, and a leader in entertainment and educational software.
It includes Sierra On-Line, Inc., Davidson & Associates, Inc., Blizzard
Entertainment and Knowledge Adventure, Inc., and offers such titles as
Diablo, Warcraft, You Don't Know Jack, King's Quest, JumpStart, Math Blaster,
Reading Blaster and many others.
As a franchisor of hotels, residential real estate brokerage offices, car
rental operations and tax preparation services, the Company licenses the
owners and operators of independent businesses to use the Company's brand
names. The Company does not own or operate hotels, real estate brokerage
offices or tax preparation offices (except for certain company-owned Jackson
Hewitt offices which the Company intends to resell during 1998). Instead, the
Company provides its franchisee customers with services designed to increase
their revenue and profitability.
The Company from time to time explores and conducts discussions with
regard to acquisitions and other strategic corporate transactions in its
industries and in other businesses. Historically, the Company has been
involved in numerous transactions of various magnitudes, for consideration
which included cash or securities (including Common Stock) or combinations
thereof. The Company will evaluate and pursue appropriate acquisition and
combination opportunities as they arise. No assurance can be given with
respect to the timing, likelihood or financial or business effect of any
possible transaction. In the past, acquisitions by the Company have involved
both relatively small acquisitions and acquisitions which have been
significant.
As part of its regular on-going evaluation of acquisition opportunities,
the Company is currently engaged in a number of separate and unrelated
preliminary discussions concerning possible acquisitions. The Company is in
the early stages of such discussions and has not entered into any agreement
in principle with respect to any of these possible acquisitions. The purchase
price for the possible acquisitions may be paid in cash, through the issuance
of Common Stock (which would increase the number of shares of Common Stock
outstanding) Preferred Stock, Debt Securities or other securities of the
Company, borrowings, or a combination thereof. Prior to consummating any such
possible acquisitions, the Company, among other things, will have to initiate
and satisfactorily complete its due diligence investigation; negotiate the
financial and other terms (including price) and conditions of such
acquisitions; obtain appropriate Board of Directors, regulatory and other
necessary consents and approvals; and secure financing. The Company cannot
predict whether any such acquisitions will be consummated or, if consummated,
will result in a financial or other benefit to the Company.
The Company's principal executive offices are located at 6 Sylvan Way,
Parsippany, New Jersey 07054 (telephone number: (973) 428-9700).
RECENT DEVELOPMENTS
Proposed Acquisition of American Bankers. On March 23, 1998, the Company
announced that it had entered into a definitive agreement to acquire
American Bankers Insurance Group Inc. ("American Bankers") for $67 per share
in cash and stock, for an aggregate consideration of approximately $3.1
billion. The Company intends to purchase 23.5 million shares of American
Bankers at $67 per share through its pending cash tender offer, to be
followed by a merger in which the Company will deliver Cendant shares with a
value of $67 for each remaining share of American Bankers common stock
outstanding. The Company has already received anti-trust clearance to acquire
American Bankers. The tender offer is subject to the receipt of tenders
representing at least 51 percent of the common shares of American Bankers as
well as customary closing conditions, including regulatory approvals. The
transaction is expected to be completed in the latter part of the second
quarter of 1998. American Bankers concentrates on marketing affordable,
specialty insurance products and services through financial institutions,
retailers and other entities offering consumer financing as a regular part
of their business. American Bankers, through its subsidiaries, operates in the
United States, Canada, Latin America, the Caribbean and the United Kingdom.
In connection with the Company's proposal to acquire American Bankers, the
Company entered into a commitment letter, dated January 23, 1998, with The
Chase Manhattan Bank and Chase Securities Inc. to provide a $1.5 billion
364-day revolving credit facility (the "New Facility") which will mature
364 days after the execution of the definitive documentation relating thereto.
The New Facility will bear interest, at the option of the Company, at rates
based on competitive bids of lenders participating in such facilities at a
prime rate or at LIBOR plus an applicable variable margin based on the
Company's senior unsecured long-term debt rating.
National Parking Corporation Acquisition. On March 23, 1998, the Company
announced that it had agreed with the board of directors of U.K.-based National
Parking Corporation Limited ("NPC") to the terms of a recommended cash offer to
acquire the entire issued share capital of NPC for 673 pence per share, a total
of approximately (pound sterling)801 million (approximately $1.3 billion).
Payment for the shares will be made in cash. The Company has received
irrevocable undertakings to accept the offer with respect to holdings amounting
to approximately 73 percent of NPC's issued share capital and the directors of
NPC intend unanimously to recommend that NPC shareholders accept the offer.
The offer is subject to customary regulatory approvals and it is anticipated
that the transaction will close during the second quarter of 1998. NPC operates
in two principal segments: National Car Parks Limited, the largest private
(non-municipality owned) car park operator in the U.K. with approximately
500 locations; and Green Flag Group Limited, the largest for-profit roadside
assistance organization with more than 3.5 million members in the U.K.
Providian Acquisition. On December 10, 1997, the Company announced that it
had entered into a definitive agreement to acquire Providian Auto and Home
Insurance Company ("Providian") and its subsidiaries from an Aegon N.V.
subsidiary for approximately $219 million in cash. Providian sells automobile
insurance to consumers through direct response marketing in 45 states and the
District of Columbia. The closing of this transaction is subject to customary
conditions, including regulatory approval, and is anticipated to occur in the
spring of 1998. Upon acquisition, the Company intends to change the name of
Providian to Cendant Auto Insurance Company ("Cendant Auto") and expand
Cendant Auto's marketing channels to the Company's existing distribution
channels, while also providing the Company's existing customer base with a new
product offering.
THE CENDANT TRUSTS
Each of the Cendant Trusts is a statutory business trust formed under
Delaware law pursuant to (i) a declaration of trust (each a "Declaration")
executed by the Company as sponsor for such trust (the "Sponsor"), and the
Cendant Trustees (as defined herein) of such trust and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware on
February 5, 1998. Each Cendant Trust exists for the exclusive purposes of (i)
issuing and selling the Preferred Securities and common securities
representing common undivided beneficial interests in the assets of such
Cendant Trust (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities"), (ii) using the gross proceeds from the
sale of the Trust Securities to acquire the Debt Securities and (iii)
engaging in only those other activities necessary, appropriate, convenient or
incidental thereto. All of the Common Securities will be directly or
indirectly owned by the Company. The Common Securities will rank on a parity,
and payments will be made thereon pro rata, with the Preferred Securities,
except that, if an event of default under the Declaration has occurred and is
continuing, the rights of the holders of the Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Preferred
Securities. The Company will directly or indirectly acquire Common Securities
in an aggregate liquidation amount equal to at least 3% of the total capital
of each Cendant Trust.
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Unless otherwise specified in the applicable Prospectus Supplement, each
Cendant Trust has a term of up to 55 years but may terminate earlier, as
provided in the Declaration. Each Cendant Trust's business and affairs will
be conducted by the trustees (the "Cendant Trustees") appointed by the
Company as the direct or indirect holder of all of the Common Securities. The
holder of the Common Securities will be entitled to appoint, remove or
replace any of, or increase or reduce the number of, the Cendant Trustees of
each Cendant Trust. The duties and obligations of the Cendant Trustees shall
be governed by the Declaration of such Cendant Trust. A majority of the
Cendant Trustees (the "Regular Trustees") of each Cendant Trust will be
persons who are employees or officers of or who are affiliated with the
Company. One Cendant Trustee of each Cendant Trust will be a financial
institution (the "Institutional Trustee") that is not affiliated with the
Company and has a minimum amount of combined capital and surplus of not less
than $50,000,000, which shall act as property trustee and as indenture
trustee for the purposes of compliance with the provisions of Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), pursuant to the terms
set forth in the applicable Prospectus Supplement. In addition, unless the
Institutional Trustee maintains a principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law, one Cendant
Trustee of each Cendant Trust will be an entity having a principal place of
business in, or a natural person resident of, the State of Delaware (the
"Delaware Trustee"). The Company will pay all fees and expenses related to
the Cendant Trust and the offering of the Trust Securities.
Unless otherwise specified in the applicable Prospectus Supplement, the
Institutional Trustee and Delaware Trustee for each Cendant Trust shall be
Wilmington Trust Company, and its address in the State of Delaware is Rodney
Square North, 1100 North Mamet Street, Wilmington, Delaware 19890. The
principal place of business of each Cendant Trust shall be c/o Cendant
Corporation, 6 Sylvan Way, Parsippany, New Jersey 07054, telephone (973)
428-9700.
USE OF PROCEEDS
Unless otherwise set forth in a Prospectus Supplement, the net proceeds
from the offering of the Securities will be used for general corporate
purposes, which may include acquisitions, repayment of other debt, working
capital and capital expenditures. When a particular series of Securities is
offered, the Prospectus Supplement relating thereto will set forth the
Company's intended use for the net proceeds received from the sale of such
Securities. Pending application for specific purposes, the net proceeds may
be invested in short-term marketable securities.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the unaudited consolidated ratio of
earnings to fixed charges of the Company for the periods indicated.
<TABLE>
<CAPTION>
HISTORICAL
-----------------------------------------
YEAR ENDED DECEMBER 31,
-----------------------------------------
1997 1996 1995 1994 1993
------- ------- ------- ------- ------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges (1)(2) 1.68x 3.06x 2.70x 2.94x 2.68x
</TABLE>
- ------------
(1) The ratio of earnings to fixed charges is computed by dividing income
before income taxes and extraordinary items plus fixed charges, less
capitalized interest by fixed charges. Fixed charges consist of
interest expense on all indebtedness (including amortization of
deferred financing costs) and the portion of operating lease rental
expense that is representative of the interest factor (deemed to be
one-third of operating lease rentals).
(2) For the year ended December 31, 1997, income before income taxes
includes non-recurring merger-related costs and other unusual
charges in the amount of $1,147.9 million ($816.8 million after-tax).
Excluding such charges, the ratio of earnings to fixed charges is
4.34x.
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DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities may be offered from time to time by the Company as
Senior Debt Securities and/or as Subordinated Debt Securities. The Senior
Debt Securities will be issued under an Indenture, as it may be supplemented
from time to time (the "Senior Indenture"), between the Company and The Bank
of Nova Scotia Trust Company of New York, as trustee (the "Senior Trustee").
The Subordinated Debt Securities will be issued under an Indenture, as it may
be supplemented from time to time (the "Subordinated Indenture"), between the
Company and The Bank of Nova Scotia Trust Company of New York, as trustee
(the "Subordinated Trustee"). The term "Trustee", as used herein, refers to
either the Senior Trustee or the Subordinated Trustee, as appropriate. The
forms of the Senior Indenture and the Subordinated Indenture (being sometimes
referred to herein collectively as the "Indentures" and individually as an
"Indenture") have been filed as exhibits to the Registration Statement. The
terms of the Indentures are also governed by certain provisions of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The following
summary of certain material provisions of the Debt Securities does not
purport to be complete and is qualified in its entirety by reference to the
Indentures. All capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Indentures. For a summary of
certain definitions used in this section, see "Certain Definitions" below.
GENERAL
The Indentures will provide for the issuance of Debt Securities in series
up to the aggregate amount from time to time authorized by the Company for
each series. A Prospectus Supplement will set forth the following terms (to
the extent such terms are applicable to such Debt Securities) of and
information relating to the Debt Securities in respect of which this
Prospectus is delivered: (1) the designation of such Debt Securities; (2)
classification as Senior or Subordinated Debt Securities; (3) the aggregate
principal amount of such Debt Securities; (4) the percentage of their
principal amount at which such Debt Securities will be issued; (5) the date
or dates on which such Debt Securities will mature; (6) the rate or rates, if
any, per annum, at which such Debt Securities will bear interest, or the
method of determination of such rate or rates; (7) the times and places at
which such interest, if any, will be payable; (8) provisions for sinking,
purchase or other analogous fund, if any; (9) the date or dates, if any,
after which such Debt Securities may be redeemed at the option of the Company
or of the holder and the redemption price or prices; (10) the date or the
dates, if any, after which such Debt Securities may be converted or exchanged
at the option of the holder into or for shares of Common Stock or Preferred
Stock of the Company and the terms for any such conversion or exchange; and
(11) any other specific terms of the Debt Securities. Principal, premium, if
any, and interest, if any, will be payable and the Debt Securities offered
hereby will be transferable, at the corporate trust office of the Trustee's
agent in the borough of Manhattan, City of New York, provided that payment of
interest, if any, may be made at the option of the Company by check mailed to
the address of the person entitled thereto as it appears in the Security
Register. (Section 301 of each Indenture)
If a Prospectus Supplement specifies that a series of Debt Securities is
denominated in a currency or currency unit other than United States dollars,
such Prospectus Supplement shall also specify the denomination in which such
Debt Securities will be issued and the coin or currency in which the
principal, premium, if any, and interest, if any, on such Debt Securities
will be payable, which may be United States dollars based upon the exchange
rate for such other currency or currency unit existing on or about the time a
payment is due. Special United States federal income tax considerations
applicable to any Debt Securities so denominated are also described in the
applicable Prospectus Supplement.
The Debt Securities may be issued in registered or bearer form and, unless
otherwise specified in a Prospectus Supplement, in denominations of $1,000
and integral multiples thereof. Debt Securities may be issued in book-entry
form, without certificates. Any such issue will be described in the
Prospectus Supplement relating to such Debt Securities. No service charge
will be made for any transfer or exchange of the Debt Securities, but the
Company or the Trustee may require payment of a sum sufficient to cover any
tax or other government charge payable in connection therewith.
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<PAGE>
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be sold at a substantial discount from their stated
principal amount. United States Federal income tax consequences and other
considerations applicable thereto will be described in the Prospectus
Supplement relating to such Debt Securities.
MERGER, CONSOLIDATION AND SALE OF ASSETS
The Indentures will provide that the Company shall not consolidate with or
merge into any other corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless: (1) the
corporation formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety (A) shall
be a corporation, partnership, limited liability company or trust organized
and validly existing under the laws of the United States of America, any
state thereof or the District of Columbia and (B) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the Company's obligation for the due and
punctual payment of the principal of (and premium, if any, on) and interest
on all the Debt Securities and the performance and observance of every
covenant of the Indentures on the part of the Company to be performed or
observed; (2) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and (3) the
Company or such Person shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture comply
with this "Merger, Consolidation and Sale of Assets" section and that all
conditions precedent herein provided for relating to such transaction have
been complied with. This paragraph shall apply only to a merger or
consolidation in which the Company is not the surviving corporation and to
conveyances, leases and transfers by the Company as transferor or lessor.
(Section 801 of each Indenture)
The Indentures will further provide that upon any consolidation by the
Company with or merger by the Company into any other corporation or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any Person in accordance with the preceding
paragraph, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under the Indentures with the same effect as if such
successor Person had been named as the Company therein, and in the event of
any such conveyance or transfer, the Company (which term shall for this
purpose mean Cendant Corporation or any successor Person which shall
theretofore become such in the manner described in the preceding paragraph),
except in the case of a lease, shall be discharged of all obligations and
covenants under the Indentures and the Debt Securities and the coupons and
may be dissolved and liquidated. (Section 802 of each Indenture)
EVENTS OF DEFAULT
The following will be "Events of Default" under the Indentures with
respect to Debt Securities of any series:
(1) default in the payment of any interest on any Debt Securities of that
series or any related coupon, when such interest or coupon becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Debt Securities of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment when and as due
pursuant to the terms of the Debt Securities of that series and Article
Twelve of the Indentures; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in the Indentures (other than a default in the performance, or
breach, of a covenant or warranty which is specifically dealt with
elsewhere under this "Events of Default" section), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail,
8
<PAGE>
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of all Outstanding Debt
Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" thereunder; or
(5) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Federal
Bankruptcy Code or any other applicable federal or state law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable federal or state law, or
the consent by it to the filing of any such petition or to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due; or
(7) (A) there shall have occurred one or more defaults by the Company in
the payment of the principal of (or premium, if any, on) Debt aggregating
$50 million or more, when the same becomes due and payable at the stated
maturity thereof, and such default or defaults shall have continued after
any applicable grace period and shall not have been cured or waived, or
(B) Debt of the Company aggregating $50 million or more shall have been
accelerated or otherwise declared due and payable, or required to be
prepaid or repurchased (other than by regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(8) any other Event of Default provided with respect to Debt Securities
of that series.
If an Event of Default described in clause (1), (2), (3), (4), (7) or (8)
above with respect to Debt Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities
of that series are Original Issue Discount Securities or Indexed Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all of the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified portion thereof) shall become immediately due and payable. If an
Event of Default described in clause (5) or (6) above occurs and is
continuing, then the principal amount of all the Debt Securities shall become
and be immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder, subject, however, to all rights,
powers and limitations provided for by the Federal Bankruptcy Code or any
other applicable Federal or State Law.
At any time after a declaration of acceleration with respect to Debt
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been
obtained by the Trustee as provided in Article Five of the Indentures, the
Holders of a majority in principal amount of the Outstanding Debt Securities
of that series (or of all series, as the case may be), by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay in the Currency in which the Debt Securities of such series are
payable (except as otherwise specified pursuant to Section 301 of the
Indentures for the Debt Securities of such series and except, if
applicable, as provided in certain provisions of Section 312 of the
Indentures):
9
<PAGE>
(A) all overdue interest on all Outstanding Debt Securities of that
series (or of all series, as the case may be) and any related coupons;
(B) all unpaid principal of (and premium, if any, on) any Outstanding
Debt Securities of that series (or of all series, as the case may be)
which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal at the rate or
rates prescribed therefor in such Debt Securities;
(C) to the extent that payment of such interest is lawful, interest
on overdue interest at the rate or rates prescribed therefor in such
Debt Securities; and
(D) all sums paid or advanced by the Trustee thereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debt Securities of that series
(or of all series, as the case may be), other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on Debt
Securities of that series (or of all series, as the case may be) which
have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513 of the Indentures.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration of
acceleration in respect of the Debt Securities because of an Event of Default
specified in clause (7) of the first paragraph of this section shall have
occurred and be continuing, such declaration of acceleration shall be
automatically annulled if the Debt that is the subject of such Event of
Default has been discharged or the holders thereof have rescinded their
declaration of acceleration in respect of such Debt, and written notice of
such discharge or rescission, as the case may be, shall have been given to
the Trustee by the Company and countersigned by the holders of such Debt or a
trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Debt Securities, and no other
Event of Default has occurred during such 30-day period which has not been
cured or waived during such period. (Section 502 of each Indenture)
Subject to Section 502 of each Indenture, the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of any series
may on behalf of the Holders of all the Debt Securities of such series waive
any past default described in clause (1), (2), (3), (4), (7), or (8) of the
first paragraph of this section (or, in the case of a default described in
clause (5) or (6) of the first paragraph of this section, the Holders of not
less than a majority in principal amount of all Outstanding Debt Securities
may waive any such past default), and its consequences, except a default (i)
in respect of the payment of the principal of (or premium, if any, on) or
interest on any Debt Security or any related coupon, or (ii) in respect of a
covenant or provision which under the Indentures cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security
of such series affected. (Section 513 of each Indenture)
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Indentures; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
(Section 513 of each Indenture)
No Holder of any Debt Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with
respect to the Indentures, or for the appointment of a receiver or trustee,
or for any other remedy thereunder, unless (i) such Holder has previously
given written notice to the Trustee of a continuing Event of Default with
respect to the Debt Securities of that series; (ii) the Holders of not less
than 25% in principal amount of the Outstanding Debt Securities of that
series in the case of any Event of Default under clause (1), (2), (3), (4),
(7) or (8) of the first paragraph of this section, or, in the case of any
Event of Default described in clause (5) or (6) of the first paragraph of
this section, the Holders of not less than 25% in principal amount of all
Outstanding Debt Securities, shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name
10
<PAGE>
as Trustee under each of the Indentures; (iii) such Holder or Holders have
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request; (iv) the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and (v) no direction
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority or more in principal amount
of the Outstanding Debt Securities of that series in the case of any Event of
Default described in clause (1), (2), (3), (4), (7) or (8) of the first
paragraph of this section, or, in the case of any Event of Default described
in clause (5) or (6) of the first paragraph of this section, by the Holders
of a majority or more in principal amount of all Outstanding Debt Securities.
(Section 507 of each Indenture)
During the existence of an Event of Default, the Trustee is required to
exercise such rights and powers vested in it under either Indenture in good
faith. Subject to the provisions of the Indentures relating to the duties of
the Trustee, in case an Event of Default shall occur and be continuing, the
Trustee under the Indentures is not under any obligation to exercise any of
its rights or powers under the Indentures at the request or direction of any
of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity. Subject to certain provisions concerning
the rights of the Trustee, with respect to the Debt Securities of any series,
the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of such series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee
under the Indentures.
Within 90 days after the occurrence of any Default with respect to Debt
Securities of any series, the Trustee shall transmit in the manner and to the
extent provided in TIA Section 313(c), notice of such Default known to the
Trustee, unless such Default shall have been cured or waived; provided,
however, that, except in the case of a Default in the payment of the
principal of (or premium, if any, on) or interest on any Debt Securities of
such series, or in the payment of any sinking fund installment with respect
to Debt Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Debt Securities of such series
and any related coupons; and provided further that, in the case of any
Default of the character specified in clause (7) of the first paragraph of
this section with respect to Debt Securities of such series, no such notice
to Holders shall be given until at least 30 days after the occurrence
thereof.
The Company is required to deliver to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate of the Company's compliance
with all of the conditions and covenants under the Indentures.
DEFEASANCE OR COVENANT DEFEASANCE OF THE INDENTURES
The Indentures will provide that the Company may, at its option and at any
time, terminate the obligations of the Company with respect to the
Outstanding Debt Securities of any series ("defeasance"). Such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Debt Securities and any related
coupons, except for the following which shall survive until otherwise
terminated or discharged under the Indentures: (A) the rights of Holders of
such Outstanding Debt Securities and any related coupons (i) to receive,
solely from the trust fund described in the Indentures, payments in respect
of the principal of (and premium, if any, on) and interest on such Debt
Securities and any related coupons when such payments are due, and (ii) to
receive shares of common stock or other Securities from the Company upon
conversion of any convertible Debt Securities issued thereunder, (B) the
Company's obligations to issue temporary Debt Securities, register the
transfer or exchange of any Debt Securities, replace mutilated, destroyed,
lost or stolen Debt Securities, maintain an office or agency for payments in
respect of the Debt Securities and, if the Company acts as its own Paying
Agent, hold in trust, money to be paid to such Persons entitled to payment,
and with respect to Additional Amounts, if any, on such Debt Securities as
contemplated in the Indentures, (C) the rights, powers, trusts, duties and
immunities of the Trustee under the Indentures and (D) the defeasance
provisions of the Indentures. With respect to Subordinated Debt Securities,
money
11
<PAGE>
and securities held in trust pursuant to the Defeasance and Covenant
Defeasance provisions described herein, shall not be subject to the
subordination provisions of the Subordinated Indenture. In addition, the
Company may, at its option and at any time, elect to terminate the obligations
of the Company with respect to certain covenants that are set forth in the
Indentures, some of which are described in the "Certain Covenants" section
above, and any omission to comply with such obligations shall not constitute a
Default or an Event of Default with respect to the Debt Securities ("covenant
defeasance"). (Section 1403 of each Indenture)
In order to exercise either defeasance or covenant defeasance:
(1) the Company shall irrevocably have deposited or caused to be deposited
with the Trustee, in trust, for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Debt Securities and any related coupons, (A) money in an
amount (in such Currency in which such Debt Securities and any related
coupons are then specified as payable at Stated Maturity), or (B) Government
Obligations applicable to such Debt Securities (determined on the basis of
the Currency in which such Debt Securities are then specified as payable at
Stated Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal (including
any premium) and interest, if any, under such Debt Securities and any related
coupons, money in an amount or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants to
pay and discharge (i) the principal of (and premium, if any, on) and interest
on the Outstanding Debt Securities and any related coupons on the Stated
Maturity (or Redemption Date, if applicable) of such principal (and premium,
if any) or installment or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Debt Securities
and any related coupons on the day on which such payments are due and payable
in accordance with the terms of the Indentures and of such Debt Securities
and any related coupons; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such Government
Obligations to said payments with respect to such Debt Securities and any
related coupons. Before such a deposit, the Company may give to the Trustee,
in accordance with certain redemption provisions in the Indentures, a notice
of its election to redeem all or any portion of such Outstanding Debt
Securities at a future date in accordance with the terms of the Debt
Securities of such series and the redemption provisions of the Indentures,
which notice shall be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the foregoing; and
(2) no Default or Event of Default with respect to the Debt Securities and
any related coupons shall have occurred and be continuing on the date of such
deposit or, insofar as the Event of Default described in clauses (5) and (6)
of the Events of Default section above are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period); (3) such defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a default under, the
Indentures or any other material agreement or instrument to which the Company
is a party or by which it is bound; (4) in the case of a defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the Issue Date, there has been
a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of the Outstanding Debt Securities and any related coupons will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance had not occurred; (5) in the case of a covenant defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Debt Securities and any related
coupons will not recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; (6) notwithstanding any other provisions of the defeasance and
covenant defeasance provisions of the Indentures, such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute
terms, conditions or
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limitations in connection therewith pursuant to Section 301 of the Indentures;
and (7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent under the Indentures to either defeasance or covenant defeasance, as
the case may be, have been complied with. (Section 1404 of each Indenture)
SATISFACTION AND DISCHARGE
The Indentures shall upon Company Request cease to be of further effect
with respect to any series of Debt Securities (except as to any surviving
rights of registration of transfer or exchange of Debt Securities of such
series herein expressly provided for and the obligation of the Company to pay
any Additional Amounts as contemplated by Section 1005 of each Indenture) and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such Indenture as to such series
when (1) either (A) all Debt Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section 305 of
the Indentures, (ii) Debt Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 of the Indentures, (iii) coupons appertaining to Debt
Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106 of the
Indentures, and (iv) Debt Securities and coupons of such series for whose
payment money has theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 1003 of the Indentures) have
been delivered to the Trustee for cancellation; or (B) all Debt Securities of
such series and, in the case of (i) or (ii) below, any coupons appertaining
thereto not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) if redeemable at the option of the
Company, are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company, in
the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose an
amount, in the Currency in which the Debt Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such Debt
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such deposit (in
the case of Debt Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be; (2) the Company has
paid or caused to be paid all other sums payable hereunder by the Company;
and (3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the Indentures as
to such series have been complied with. (Section 401 of each Indenture)
AMENDMENTS AND WAIVERS
The Indentures will provide that at any time and from time to time, the
Company and the Trustee may, without the consent of any holder of Debt
Securities, enter into one or more indentures supplemental thereto for
certain specified purposes, including, among other things, (i) to cure
ambiguities, defects or inconsistencies, or to make any other provisions with
respect to questions or matters arising under the Indentures (provided that
such action shall not adversely affect the interests of the Holders in any
material respect), (ii) to effect or maintain the qualification of the
Indentures under the Trust Indenture Act, or (iii) to evidence the succession
of another person to the Company and the assumption by any such successor of
the obligations of the Company in accordance with the Indentures and the Debt
Securities. (Section 901 of each Indenture). Other amendments and
modifications of the Indentures or the Debt Securities may be made by the
Company and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all of the then Outstanding
Debt Securities of any Series; provided, however, that no such modification
or amendment may, without the consent of the holder of each Outstanding Debt
Security affected thereby, (1) change the Stated Maturity of the principal
of, or any installment of interest on, any Debt Security or reduce the
principal amount thereof
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or the rate of interest thereon or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional Amounts
contemplated by Section 1005 of each Indenture (except as contemplated and
permitted by certain provisions of the Indentures), or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 of the Indentures of the amount thereof provable in bankruptcy
pursuant to Section 504 of the Indentures, or adversely affect any right of
repayment at the option of any Holder of any Debt Security, or change any
Place of Payment where, or the Currency in which, any Debt Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or Repayment Date, as the case may
be), or adversely affect any right to convert or manage any Debt Securities as
may be provided pursuant to Section 301 of the Indentures, or (2) reduce the
percent in principal amount of the Outstanding Debt Securities of any series,
the consent of whose Holders is required for any such supplemental indenture,
for any waiver of compliance with certain provisions of the Indentures or
certain defaults thereunder and their consequences provided for in the
Indentures, or reduce the requirements for quorum or voting.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by and construed
in accordance with the laws of the State of New York. The Indentures are
subject to the provisions of the Trust Indenture Act that are required to be
a part thereof and shall, to the extent applicable, be governed by such
provisions.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indentures.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Stock" means any and all shares, interests, participations,
rights or equivalents (however designated) of corporate stock of the Company
or any Principal Subsidiary.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Fair Market Value" means the fair market value of the item in question as
determined by the Board of Directors acting in good faith and in exercise of
its fiduciary duties.
"Holder" means a Person in whose name a Debt Security is registered in the
Security Register.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Debt Securities.
"Issue Date" means the date of first issuance of the Debt Securities under
either Indenture.
"Maturity", when used with respect to any Debt Securities, means the date
on which the principal of such Debt Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
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"Officers' Certificate" means a certificate signed by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall
be acceptable to the Trustee.
"Original Issue Discount Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 of the Indentures.
"Outstanding", when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under the Indentures, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Debt Securities, or portions thereof, for whose payment, money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Debt Securities;
(iii) Debt Securities, except to the extent provided in the "Defeasance
or Covenant Defeasance of the Indentures" section, with respect to which
the Company has effected defeasance and/or covenant defeasance as provided
in the Indenture; and
(iv) Mutilated, destroyed, lost or stolen Debt Securities which have
become or are about to become due and payable which have been paid
pursuant to Section 306 of the Indentures or in exchange for or in lieu of
which other Debt Securities have been authenticated and delivered pursuant
to the Indenture, other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Debt Securities are held by a bona fide purchaser in whose hands
the Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have given any request,
demand, authorization, direction, notice, consent or waiver under the
Indentures, and for the purpose of making the calculations required by TIA
Section 313, Debt Securities owned by the Company or any other obligor upon
the Debt Securities or any Affiliate of the Company or such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Debt Securities which the Trustee knows to be
so owned shall be so disregarded. Debt Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company
or any other obligor upon the Debt Securities or any Affiliate of the Company
or such other obligor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if
any, on) or interest on any Debt Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
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the Trustee customarily performing functions similar to those performed by
any of the above-designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Rolling Period" shall mean with respect to any fiscal quarter, such
fiscal quarter and the three immediately preceding fiscal quarters considered
as a single accounting period.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305 of the Indenture.
"Stated Maturity", when used with respect to any Debt Security or any
installment of principal thereof or interest thereon, means the date
specified in such Debt Security as the fixed date on which the principal of
such Debt Security or such installment of principal or interest is due and
payable.
"Subsidiary" means any corporation of which at the time of determination
the Company, directly and/or indirectly through one or more Subsidiaries,
owns more than 50% of the Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which the Indentures were executed, except that any
supplemental indenture executed pursuant to the Indentures shall conform to
the requirements of the Trust Indenture Act as in effect on the date of
execution thereof.
"Trustee" means The Bank of Nova Scotia Trust Company of New York until a
successor Trustee shall have become such pursuant to the applicable
provisions of the Indentures, and thereafter "Trustee" shall mean such
successor Trustee.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board
of directors, managers or trustees of a corporation (irrespective of whether
or not at the time stock of any other class or classes shall have or might
have voting power by reason of the happening of any contingency).
GENERAL DESCRIPTION OF CAPITAL STOCK
The following description of the Company's capital stock does not purport
to be complete and is subject to, and qualified in its entirety by reference
to, the more complete descriptions thereof set forth in the Company's Amended
and Restated Certificate of Incorporation (the "Certificate"), and Amended
and Restated By-laws (the "By-laws") which documents are exhibits to this
Registration Statement.
The Company is authorized to issue up to 2,000,000,000 shares of Common
Stock, par value $.01 per share, and up to 10,000,000 shares of Preferred
Stock, par value $1.00 per share. As of March 20, 1998, there were
843,661,053 shares of Common Stock and no shares of Preferred Stock
outstanding.
DESCRIPTION OF PREFERRED STOCK
GENERAL
The following summary contains a description of certain general terms of
the Company's Preferred Stock. The particular terms of any series of
Preferred Stock that may be offered will be described in the applicable
Prospectus Supplement. If so indicated in a Prospectus Supplement, the terms
of any such series may differ from the terms set forth below. The summary of
terms of the Preferred Stock does not purport to be complete and is subject
to and qualified in its entirety by reference to the provisions of the
Certificate and the Certificate of Designation (the "Certificate of
Designation") relating to a particular series of offered Preferred Stock
which is or will be in the form filed or incorporated by reference as an
exhibit to the Registration Statement of which this Prospectus is a part at
or prior to the time of the issuance of such series of Preferred Stock.
The Board of Directors of the Company has the power, without further
action by the shareholders, to issue Preferred Stock in one or more series,
with such designations of series, dividend rates, redemption
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provisions, special or relative rights in the event of liquidation,
dissolution, distribution or winding up of the Company, sinking fund
provisions, conversion or exchange provisions, voting rights thereof and
other preferences, privileges, powers, rights, qualifications, limitations
and restrictions, as shall be set forth as and when established by the Board
of Directors of the Company. The shares of any series of Preferred Stock will
be, when issued, fully paid and non-assessable and holders thereof will have
no preemptive rights in connection therewith.
RANK
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Preferred Stock, each series of Preferred Stock will
rank on parity as to dividends and liquidation rights in all respects with
each other series of Preferred Stock.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of
funds legally available therefor, cash dividends at such rates and on such
dates as are set forth in the Prospectus Supplement relating to such series
of Preferred Stock. Different series of the Preferred Stock may be entitled
to dividends at different rates or based upon different methods of
determination. Such rates may be fixed or variable or both. Each such
dividend will be payable to the holders of record as they appear on the stock
books of the Company on such record dates as will be fixed by the Board of
Directors of the Company or a duly authorized committee thereof. Dividends on
any series of the Preferred Stock may be cumulative or noncumulative, as
provided in the Prospectus Supplement relating thereto.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Stock will
be entitled to receive out of assets of the Company available for
distribution to stockholders, before any distribution of assets is made to
holders of Common Stock or any other class of stock ranking junior to such
series of the Preferred Stock upon liquidation, liquidating distributions in
the amount set forth in the Prospectus Supplement relating to such series of
Preferred Stock plus an amount equal to accrued and unpaid dividends for the
then current dividend period and, if such series of the Preferred Stock is
cumulative, for all dividend periods prior thereto, all as set forth in the
Prospectus Supplement with respect to such series of Preferred Stock.
REDEMPTION
The terms, if any, on which shares of a series of Preferred Stock may be
subject to optional or mandatory redemption, in whole or in part, will be set
forth in the Prospectus Supplement relating to such series.
CONVERSION AND EXCHANGE
The terms, if any, on which shares of a series of Preferred Stock are
convertible into another series of Preferred Stock or Common Stock or
exchangeable for another series of Preferred Stock or Common Stock will be
set forth in the Prospectus Supplement relating thereto. Such terms may
include provisions for conversion, either mandatory, at the option of the
holder, or at the option of the Company, in which case the number of shares
of another series of Preferred Stock or Common Stock to be received by the
holders of such series of Preferred Stock would be calculated as of a time
and in the manner stated in such Prospectus Supplement.
TRANSFER AGENT AND REGISTRAR
The transfer agent, registrar and dividend disbursement agent for each
series of Preferred Stock will be designated in the applicable Prospectus
Supplement. The registrar for shares of each series of Preferred Stock will
send notices to shareholders of any meetings at which holders of the
Preferred Stock have the right to elect directors of the Company or to vote
on any other matter.
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VOTING RIGHTS
The holders of Preferred Stock of a series offered hereby will not be
entitled to vote except as indicated in the Prospectus Supplement relating to
such series of Preferred Stock or as required by applicable law.
DESCRIPTION OF COMMON STOCK
GENERAL
Subject to the rights of the holders of any shares of the Company's
Preferred Stock which may at the time be outstanding, holders of Common Stock
are entitled to such dividends as the Board of Directors may declare out of
funds legally available therefor. The holders of Common Stock will possess
exclusive voting rights in the Company, except to the extent the Board of
Directors specifies voting power with respect to any Preferred Stock issued.
Except as hereinafter described, holders of Common Stock are entitled to one
vote for each share of Common Stock, but will not have any right to cumulate
votes in the election of directors. In the event of liquidation, dissolution
or winding up of the Company, the holders of Common Stock are entitled to
receive, after payment of all of the Company's debts and liabilities and of
all sums to which holders of any Preferred Stock may be entitled, the
distribution of any remaining assets of the Company. Holders of the Common
Stock will not be entitled to preemptive rights with respect to any shares
which may be issued. Any shares of Common Stock sold hereunder will be fully
paid and non-assessable upon issuance against full payment of the purchase
price therefor. The Common Stock is listed on the New York Stock Exchange
under the symbol "CD."
CERTAIN PROVISIONS
The provisions of the Company's Certificate and By-Laws which are
summarized below may be deemed to have an anti-takeover effect and may delay,
defer or prevent a tender offer or takeover attempt that a stockholder might
consider in such stockholder's best interest, including those attempts that
might result in a premium over the market price for the shares held by
stockholders.
CLASSIFIED BOARD
The Board of Directors is divided into three classes that are elected for
staggered three-year terms. A director may be removed by the stockholders
without cause only by the affirmative vote of the holders, voting as a single
class, of 80% or more of the total number of votes entitled to be cast by all
holders of the voting stock, which shall include all capital stock of the
Company which by its terms may vote on all matters submitted to stockholders
of the Company generally. The size of the Board of Directors was set by
resolution at 30 and pursuant to the By-Laws (i) until the third anniversary
of the consummation of the merger of HFS and CUC (the "Effective Time"), an
affirmative vote of 80% of the entire Board of Directors will be required in
order to change the number of directors, and (ii) a quorum, at any meeting of
the Board of Directors, shall consist of a majority of the entire Board of
Directors.
COMMITTEES OF THE BOARD OF DIRECTORS
Pursuant to the Certificate, the Board of Director's authority to
designate committees shall be subject to the provisions of the By-Laws.
Pursuant to the By-Laws, the Board of Directors shall have the following
committees: (i) an Executive Committee consisting of four CUC Directors (as
defined below) and four HFS Directors (as defined below) and whose Chairman
shall be the Chairman of the Board; (ii) a Compensation Committee consisting
of two CUC Directors and two HFS Directors and whose Chairman shall be an HFS
Director; and (iii) an Audit Committee consisting of two CUC Directors and
two HFS Directors and whose Chairman shall be a CUC Director. The Board of
Directors may designate one or more directors as alternate members of any
committee to fill any vacancy on a committee and to fill a vacant
chairmanship of a committee occurring as a result of a member or chairman
leaving the committee, whether through death, resignation, removal or
otherwise. Until the third anniversary of the Effective Time, the affirmative
vote of 80% of the entire Board of Directors will be required in order to
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remove a director from a committee, change the chairmanship of a committee,
designate an alternate member to any committee, designate any additional
committee, or amend, modify or repeal or adopt any provision inconsistent
with the provisions described herein.
The term "HFS Director" means (A) any person serving as a Director of HFS
on May 27, 1997 (or any person appointed by the Board of Directors of HFS
after May 27, 1997 to fill a vacancy on the HFS Board of Directors created
other than due to an increase in the size of the Board of Directors of HFS)
who continues as a Director of the Company at the Effective Time and (B) any
person who becomes a Director of the Company and who was designated as such
by the remaining HFS Directors prior to his or her election; and the term
"CUC Director" means (A) any person serving as a Director of the Company on
May 27, 1997 (or any person appointed by the Board of Directors of the
Company after May 27, 1997 but prior to the Effective Time to fill a vacancy
on the Board of Directors created other than due to an increase in the size
of the Board of Directors) who continues as a Director of the Company at the
Effective Time, (B) any of the four persons designated by the CUC Directors
to become a Director of the Company at the Effective Time and (C) any person
who becomes Director of the Company and who was designated as such by the
remaining CUC Directors prior to his or her election.
NEWLY CREATED DIRECTORSHIPS AND VACANCIES
Pursuant to the By-Laws, until the third anniversary of the Effective
Time, the Board of Directors will delegate to the Executive Committee the
full and exclusive power and authority to nominate directors for election to
the Board of Directors at the next stockholders' meetings at which directors
are to be elected, elect directors to fill vacancies on the Board of
Directors between stockholders' meetings and fill vacancies on any committee
of the Board of Directors to the extent an alternate member has not been
previously designated. Such nominations and elections of directors and
members of committees shall be undertaken by the Executive Committee such
that (i) the number of HFS Directors and CUC Directors on the Board of
Directors or any committee of the Board of Directors shall be equal and (ii)
the remaining HFS Directors (if the number of HFS Directors is less than the
number of CUC Directors) or the remaining CUC Directors (if the number of CUC
Directors is less than the number of HFS Directors) shall designate the
person to be nominated or elected. Any resolution regarding such election or
nomination as described above in a manner that (a) is consistent with the two
preceding sentences will require the approval by only three members of the
Executive Committee (or only two members if there are then two vacancies on
the Executive Committee) or (b) is inconsistent with the two preceding
sentences will require approval by at least seven members of the Executive
Committee. Until the third anniversary of the Effective Time, the affirmative
vote of at least 80% of the entire Board of Directors shall be required in
order for the Board of Directors to amend, modify or repeal, or adopt any
provision inconsistent with, the provisions of the By-Laws described herein.
OFFICERS
Pursuant to the By-Laws, Walter A. Forbes shall be the Chairman of the
Board from and after the Effective Time and until January 1, 2000, at which
time Henry R. Silverman will be the Chairman of the Board. If, for any reason
Mr. Forbes ceases to serve as Chairman of the Board prior to January 1, 2000
and at such time Mr. Silverman is President and Chief Executive Officer, Mr.
Silverman shall become Chairman of the Board. Mr. Silverman will be President
and Chief Executive Officer from and after the Effective Time and until
January 1, 2000, at which time Mr. Forbes will be President and Chief
Executive Officer. If, for any reason Mr. Silverman ceases to serve as
President and Chief Executive Officer prior to January 1, 2000 and at such
time Mr. Forbes is Chairman of the Board, Mr. Forbes shall become President
and Chief Executive Officer. Until January 1, 2002, the affirmative vote of
80% of the entire Board of Directors shall be required in order for the Board
to (i) amend, modify, repeal or adopt any provision inconsistent with the
provisions described herein, (ii) remove Mr. Forbes or Mr. Silverman from the
positions specifically provided for in their employment agreements with the
Company and HFS, respectively, (iii) modify either of the respective roles,
duties or authority of Messrs. Forbes and Silverman.
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SPECIAL MEETINGS OF STOCKHOLDERS
A special meeting of stockholders may be called only by the Chairman of
the Board of Directors, the President or the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors.
QUORUM AT STOCKHOLDER MEETINGS
The holders of one-third of the shares entitled to vote at any meeting of
the stockholders, present in person or by proxy, shall constitute a quorum at
all stockholder meetings.
STOCKHOLDER ACTION BY WRITTEN CONSENT
Stockholder action by written consent in lieu of a meeting is prohibited
under the Certificate. As a result, stockholder action can be taken only at
an annual or special meeting of stockholders. This prevents the holders of a
majority of the outstanding voting stock of the Company from using the
written consent procedure to take stockholder action without giving all the
stockholders of the Company entitled to vote on a proposed action the
opportunity to participate in determining the proposed action.
ADVANCE NOTICE OF STOCKHOLDER--PROPOSED BUSINESS AT ANNUAL MEETINGS
The By-Laws provide that for business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Company. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Company not less than 60 days nor more
than 90 days prior to the meeting; provided, however, that in the event that
less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the tenth
day following the date on which such notice of the date of the annual meeting
was mailed or such public disclosure was made. A stockholder's notice to the
Secretary must set forth as to each matter the stockholder proposes to bring
before the annual meeting; (i) a brief description of the business desired to
be brought before the annual meeting, (ii) the name and address, as they
appear on the Company's books, of the stockholder proposing such business,
(iii) the class and number of shares of the Company which are beneficially
owned by the stockholder, and (iv) any material interest of the stockholder
in such business.
In addition, the By-Laws provide that for a stockholder to properly
nominate a director at a meeting of stockholders, the stockholder must have
given timely notice thereof in writing to the Secretary of the Company. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Company (i) in the case of an annual
meeting, at least 90 days prior to the date of the last annual meeting of the
Company stockholders and (ii) with respect to a special meeting of
stockholders, the close of business on the 10th day following the date on
which notice of such meeting is first given to stockholders. Such
stockholder's notice to the Secretary must set forth: (i) the name and
address of the stockholder who intends to make the nomination and of the
person or persons to be nominated, (ii) a representation that the stockholder
is holder of record of Common Stock and intends to appear in person or by
proxy at the meeting to nominate each such nominee, (iii) a description of
all arrangements between such stockholder and each nominee, (iv) such other
information with respect to each nominee as would be required to be included
in a proxy statement filed pursuant to the proxy rules of the Commission, and
(v) the consent of each nominee to serve as director of the Company if so
elected.
AMENDMENT OF GOVERNING DOCUMENTS
In addition to the provisions of the Certificate which require a
super-majority of stockholders to approve certain amendments to the
Certificate and the By-Laws, the By-Laws require the affirmative vote of 80%
of the entire Board of Directors in order for the Board of Directors to adopt
certain amendments to the By-Laws as described under "--Board of Directors,"
"--Committees of the Board of Directors," "Newly Created Directorships and
Vacancies" and "--Officers."
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<PAGE>
FAIR PRICE PROVISIONS
Under the Delaware General Corporation Law and the Certificate, an
agreement of merger, sale, lease or exchange of all or substantially all of
the Company's assets must be approved by the Board of Directors and adopted
by the holders of a majority of the outstanding shares of stock entitled to
vote thereon. However, the Certificate includes what generally is referred to
as a "fair price provision," which requires the affirmative vote of the
holders of at least 80% of the outstanding shares of capital stock entitled
to vote generally in the election of the Company's directors, voting together
as a single class, to approve certain business combination transactions
(including certain mergers, recapitalization and the issuance or transfer of
securities of the Company or a subsidiary having an aggregate fair market
value of $10 million or more) involving the Company or a subsidiary and an
owner or any affiliate of an owner of 5% or more of the outstanding shares of
capital stock entitled to vote, unless either (i) such business combination
is approved by a majority of disinterested directors, or (ii) the
shareholders receive a "fair price" for their securities and certain other
procedural requirements are met. The Certificate provides that this provision
may not be repealed or amended in any respect except by the affirmative vote
of the holders of not less than 80% of the outstanding shares of capital
stock entitled to vote generally in the election of directors.
DESCRIPTION OF WARRANTS
GENERAL
The Company may issue Warrants to purchase Debt Securities, Preferred
Stock, Common Stock or any combination thereof, and such Warrants may be
issued independently or together with any such Securities and may be attached
to or separate from such Securities. Each series of Warrants will be issued
under a separate warrant agreement (each a "Warrant Agreement") to be entered
into between the Company and a warrant agent ("Warrant Agent"). The Warrant
Agent will act solely as an agent of the Company in connection with the
Warrants of each such series and will not assume any obligation or
relationship of agency for or with holders or beneficial owners of Warrants.
The following sets forth certain general terms and provisions of the Warrants
offered hereby. Further terms of the Warrants and the applicable Warrant
Agreement will be set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of any
Warrants in respect of which this Prospectus is being delivered, including
the following: (i) the title of such Warrants; (ii) the aggregate number of
such Warrants; (iii) the price or prices at which such Warrants will be
issued; (iv) the currency or currencies, including composite currencies, in
which the price of such Warrants may be payable; (v) the designation and
terms of the Securities (other than Preferred Securities and Common
Securities) purchasable upon exercise of such Warrants; (vi) the price at
which and the currency or currencies, including composite currencies, in
which the Securities (other than Preferred Securities and Common Securities)
purchasable upon exercise of such Warrants may be purchased; (vii) the date
on which the right to exercise such Warrants shall commence and the date on
which such right shall expire; (viii) whether such Warrants will be issued in
registered form or bearer form; (ix) if applicable, the minimum or maximum
amount of such Warrants which may be exercised at any one time; (x) if
applicable, the designation and terms of the Securities (other than Preferred
Securities and Common Securities) with which such Warrants are issued and the
number of such Warrants issued with each such Security; (xi) if applicable,
the date on and after which such Warrants and the related Securities (other
than Preferred Securities and Common Securities) will be separately
transferable; (xii) information with respect to book-entry procedures, if
any; (xiii) if applicable, a discussion of certain United States Federal
income tax considerations; and (xiv) any other terms of such Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Warrants.
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<PAGE>
DESCRIPTION OF PREFERRED SECURITIES OF THE CENDANT TRUSTS
GENERAL
Each Cendant Trust may issue, from time to time, only one series of
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each Cendant Trust authorizes the
Regular Trustees of such Cendant Trust to issue on behalf of such Cendant
Trust one series of Preferred Securities. Each Declaration will be qualified
as an indenture under the Trust Indenture Act. The Institutional Trustee, an
independent trustee, will act as indenture trustee for the Preferred
Securities for purposes of compliance with the provisions of the Trust
Indenture Act. The Preferred Securities will have such terms, including
distributions, redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as shall be
established by the Regular Trustees in accordance with the applicable
Declaration or as shall be set forth in the Declaration or made part of the
Declaration by the Trust Indenture Act. Reference is made to any Prospectus
Supplement relating to the Preferred Securities of a Cendant Trust for
specific terms of the Preferred Securities, including, to the extent
applicable, (i) the distinctive designation of such Preferred Securities,
(ii) the number of Preferred Securities issued by such Cendant Trust, (iii)
the annual distribution rate (or method of determining such rate) for
Preferred Securities issued by such Cendant Trust and the date or dates upon
which such distributions shall be payable (provided, however, that
distributions on such Preferred Securities shall, subject to any deferral
provisions, and any provisions for payment of defaulted distributions, be
payable on a quarterly basis to holders of such Preferred Securities as of a
record date in each quarter during which such Preferred Securities are
outstanding), (iv) any right of such Cendant Trust to defer quarterly
distributions on the Preferred Securities as a result of an interest deferral
right exercised by the Company on the Subordinated Debt Securities held by
such Cendant Trust; (v) whether distributions on Preferred Securities shall
be cumulative, and, in the case of Preferred Securities having such
cumulative distribution rights, the date or dates or method of determining
the date or dates from which distributions on Preferred Securities shall be
cumulative, (vi) the amount or amounts which shall be paid out of the assets
of such Cendant Trust to the holders of Preferred Securities upon voluntary
or involuntary dissolution, winding-up or termination of such Cendant Trust,
(vii) the obligation or option, if any, of such Cendant Trust to purchase or
redeem Preferred Securities and the price or prices at which, the period or
periods within which and the terms and conditions upon which Preferred
Securities shall be purchased or redeemed, in whole or in part, pursuant to
such obligation or option with such redemption price to be specified in the
applicable Prospectus Supplement, (viii) the voting rights, if any, of
Preferred Securities in addition to those required by law, including the
number of votes per Preferred Security and any requirement for the approval
by the holders of Preferred Securities as a condition to specified action or
amendments to the Declaration, (ix) the terms and conditions, if any, upon
which Subordinated Debt Securities held by such Cendant Trust may be
distributed to holders of Preferred Securities, and (x) any other relevant
rights, preferences, privileges, limitations or restrictions of Preferred
Securities consistent with the Declaration or with applicable law. All
Preferred Securities offered hereby will be guaranteed by the Company to the
extent set forth below under "Description of Trust Guarantees." The Trust
Guarantee issued to each Cendant Trust, when taken together with the
Company's back-up undertakings, consisting of its obligations under each
Declaration (including the obligation to pay expenses of each Cendant Trust),
the applicable Indenture and any applicable supplemental indentures thereto
and the Subordinated Debt Securities issued to any Cendant Trust will provide
a full and unconditional guarantee by the Company of amounts due on the
Preferred Securities issued by each Cendant Trust. The payment terms of the
Preferred Securities will be the same as the Subordinated Debt Securities
issued to the applicable Cendant Trust by the Company.
Each Declaration authorizes the Regular Trustees to issue on behalf of the
applicable Trust one series of Common Securities having such terms including
distributions, redemption, voting, liquidation rights or such restrictions as
shall be established by the Regular Trustees in accordance with the
Declaration or as shall otherwise be set forth therein. The terms of the
Common Securities issued by each Cendant Trust will be substantially
identical to the terms of the Preferred Securities issued by such Cendant
Trust, and the Common Securities will rank on a parity, and payments will be
made thereon pro rata, with the Preferred Securities except that, if an event
of default under such Declaration has occurred and is
22
<PAGE>
continuing, the rights of the holders of the Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Preferred
Securities. The Common Securities will also carry the right to vote and to
appoint, remove or replace any of the Cendant Trustees of such Cendant Trust.
All of the Common Securities of each Cendant Trust will be directly or
indirectly owned by the Company.
The financial statements of any Cendant Trust that issues Preferred
Securities will be reflected in the Company's consolidated financial
statements with the Preferred Securities shown as Company-obligated
mandatorily-redeemable preferred securities of a subsidiary trust under
minority interest in consolidated subsidiaries. In a footnote to the
Company's audited financial statements there will be included statements that
the applicable Cendant Trust is wholly-owned by the Company and that the sole
asset of such Cendant Trust is the Subordinated Debt Securities (indicating
the principal amount, interest rate and maturity date thereof).
DESCRIPTION OF TRUST GUARANTEES
Set forth below is a summary of information concerning the Trust
Guarantees that will be executed and delivered by the Company for the benefit
of the holders, from time to time, of Preferred Securities. Each Trust
Guarantee will be qualified as an indenture under the Trust Indenture Act.
Unless otherwise specified in the applicable Prospectus Supplement,
Wilmington Trust Company will act as independent indenture trustee for Trust
Indenture Act purposes under each Trust Guarantee (the "Preferred Securities
Guarantee Trustee"). The terms of each Trust Guarantee will be those set
forth in such Trust Guarantee and those made part of such Trust Guarantee by
the Trust Indenture Act. The following summary does not purport to be
complete and is subject to and qualified in its entirety by reference to the
provisions of the form of Trust Guarantee, a copy of which has been filed as
an exhibit to the Registration Statement of which this Prospectus is a part,
and the Trust Indenture Act. Each Trust Guarantee will be held by the
Preferred Securities Guarantee Trustee for the benefit of the holders of the
Preferred Securities of the applicable Cendant Trust.
GENERAL
Unless otherwise specified in the applicable Prospectus Supplement,
pursuant to each Trust Guarantee, the Company will agree, to the extent set
forth therein, to pay in full to the holders of the Preferred Securities, the
Guarantee Payments (as defined below) (except to the extent paid by such
Cendant Trust), as and when due, regardless of any defense, right of set-off
or counterclaim which such Cendant Trust may have or assert. The following
payments or distributions with respect to the Preferred Securities (the
"Guarantee Payments"), to the extent not paid by such Cendant Trust, will be
subject to the Trust Guarantee (without duplication): (i) any accrued and
unpaid distributions that are required to be paid on such Preferred
Securities, to the extent such Cendant Trust shall have funds available
therefor, (ii) the redemption price, including all accrued and unpaid
distributions to the date of redemption (the "Redemption Price"), to the
extent such Cendant Trust has funds available therefor, with respect to any
Preferred Securities called for redemption by such Cendant Trust and (iii)
upon a voluntary or involuntary dissolution, winding-up or termination of
such Cendant Trust (other than in connection with such distribution of Debt
Securities to the holders of Preferred Securities or the redemption of all of
the Preferred Securities upon maturity or redemption of the Subordinated Debt
Securities) the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on such Preferred Securities to the date of
payment, to the extent such Cendant Trust has funds available therefor or (b)
the amount of assets of such Cendant Trust remaining for distribution to
holders of such Preferred Securities in liquidation of such Cendant Trust.
The Company's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Company to the holders of
Preferred Securities or by causing the applicable Cendant Trust to pay such
amounts to such holders.
Each Trust Guarantee will not apply to any payment of distributions except
to the extent the applicable Cendant Trust shall have funds available
therefor. If the Company does not make interest or principal payments on the
Subordinated Debt Securities purchased by such Cendant Trust, such Cendant
Trust will not pay distributions on the Preferred Securities issued by such
Cendant Trust and will not have funds available therefore.
23
<PAGE>
The Company has also agreed to guarantee the obligations of each Cendant
Trust with respect to the Common Securities (the "Common Guarantee") issued
by such Cendant Trust to the same extent as the Trust Guarantee, except that,
if an Event of Default under the Subordinated Indenture has occurred and is
continuing, holders of Preferred Securities under the Trust Guarantee shall
have priority over holders of the Common Securities under the Common
Guarantee with respect to distributions and payments on liquidation,
redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
Unless otherwise specified in the applicable Prospectus Supplement, in
each Trust Guarantee, the Company will covenant that, so long as any
Preferred Securities issued by the applicable Cendant Trust remain
outstanding, if there shall have occurred any event of default under such
Trust Guarantee or under the Declaration of such Cendant Trust, then (a) the
Company will not declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than (i) purchases or
acquisitions of capital stock of the Company in connection with the
satisfaction by the Company of its obligations under any employee or agent
benefit plans or the satisfaction by the Company of its obligations pursuant
to any contract or security outstanding on the date of such event requiring
the Company to purchase capital stock of the Company, (ii) as a result of a
reclassification of the Company's capital stock (other than into cash or
other property) or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's capital
stock, (iii) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (iv) dividends or
distributions in capital stock of the Company (or rights to acquire capital
stock) or repurchases or redemptions of capital stock solely from the
issuance or exchange of capital stock or (v) redemptions or repurchases of
any rights outstanding under a shareholder rights plan); (b) the Company
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities issued by the Company which
rank junior to the Subordinated Debt Securities issued to the applicable
Cendant Trust and (c) the Company shall not make any guarantee payments with
respect to the foregoing (other than pursuant to a Trust Guarantee).
MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no consent of such holders
will be required), each Trust Guarantee may be amended only with the prior
approval of the holders of not less than a majority in liquidation amount of
the outstanding Preferred Securities of such Cendant Trust. The manner of
obtaining any such approval of holders of such Preferred Securities will be
set forth in accompanying Prospectus Supplement. All guarantees and
agreements contained in a Trust Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Company and shall inure to the
benefit of the holders of the Preferred Securities of the applicable Cendant
Trust then outstanding.
EVENTS OF DEFAULT
An event of default under a Trust Guarantee will occur upon the failure of
the Company to perform any of its payment or other obligations thereunder.
The holders of a majority in liquidation amount of the Preferred Securities
to which such Trust Guarantee relates have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Preferred Securities Guarantee Trustee in respect of such Trust Guarantee or
to direct the exercise of any trust or power conferred upon the Preferred
Securities Guarantee Trustee under such Trust Guarantee.
If the Preferred Securities Guarantee Trustee fails to enforce such Trust
Guarantee, any record holder of Preferred Securities to which such Trust
Guarantee relates may institute a legal proceeding directly against the
Company to enforce the Preferred Securities Guarantee Trustee's rights under
such Trust Guarantee without first instituting a legal proceeding against the
applicable Cendant Trust, the Preferred Securities Guarantee Trustee or any
other person or entity. Notwithstanding the foregoing, if the Company has
failed to make a Guarantee Payment under a Trust Guarantee, a record holder
of
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<PAGE>
Preferred Securities to which such Trust Guarantee relates may directly
institute a proceeding against the Company for enforcement of such Trust
Guarantee for such payment to the record holder of the Preferred Securities
to which such Trust Guarantee relates of the principal of or interest on the
applicable Debt Securities on or after the respective due dates specified in
the Debt Securities, and the amount of the payment will be based on the
holder's pro rata share of the amount due and owing on all of the Preferred
Securities to which such Trust Guarantee relates. The Company has waived any
right or remedy to require that any action be brought first against the
applicable Cendant Trust or any other person or entity before proceeding
directly against the Company. The record holder in the case of the issuance
of one or more global Preferred Securities certificates will be The
Depository Trust Company acting at the direction of the beneficial owners of
the Preferred Securities.
The Company will be required to provide annually to the Preferred
Securities Guarantee Trustee a statement as to the performance by the Company
of certain of its obligations under each outstanding Trust Guarantee and as
to any default in such performance.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE
The Preferred Securities Guarantee Trustee, prior to the occurrence of a
default to a Trust Guarantee, undertakes to perform only such duties as are
specifically set forth in such Trust Guarantee and, after default with
respect to such Trust Guarantee, shall exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provision, the Preferred Securities Guarantee Trustee is
under no obligation to exercise any of the powers vested in it by a Trust
Guarantee at the request of any holder of Preferred Securities to which such
Trust Guarantee relates unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby.
TERMINATION
Each Trust Guarantee will terminate as to the Preferred Securities issued
by the applicable Cendant Trust upon full payment of the Redemption Price of
all Preferred Securities of such Cendant Trust, upon distribution of the Debt
Securities held by such Cendant Trust to the holders of all of the Preferred
Securities of such Cendant Trust or upon full payment of the amounts payable
in accordance with the Declaration of such Cendant Trust upon liquidation of
such Cendant Trust. Each Trust Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of
Preferred Securities issued by the applicable Cendant Trust must restore
payment of any sums paid under such Preferred Securities or such Trust
Guarantee.
STATUS OF THE TRUST GUARANTEES
The Trust Guarantees will constitute senior unsecured obligations of the
Company and will rank on a parity with all of the Company's other senior
unsecured obligations.
Each Trust Guarantee will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the Company to enforce its rights under such Trust Guarantee
without instituting a legal proceeding against any other person or entity).
GOVERNING LAW
The Trust Guarantees will be governed by and construed in accordance with
the law of the State of New York.
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<PAGE>
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
The Company may issue Stock Purchase Contracts, including contracts
obligating holders to purchase from the Company, and the Company to sell to
the holders, a specified number of shares of Common Stock or Preferred Stock
at a future date or dates. The consideration per share of Common Stock or
Preferred Stock may be fixed at the time the Stock Purchase Contracts are
issued or may be determined by reference to a specific formula set forth in
the Stock Purchase Contracts. The Stock Purchase Contracts may be issued
separately or as a part of units ("Stock Purchase Units") consisting of a
Stock Purchase Contract and Debt Securities, Preferred Securities or debt
obligations of third parties, including U.S. Treasury securities, securing
the holders' obligations to purchase the Common Stock or Preferred Stock
under the Stock Purchase Contracts. The Stock Purchase Contracts may require
the Company to make periodic payments to the holders of the Stock Purchase
Units or vice versa, and such payments may be unsecured or prefunded on some
basis. The Stock Purchase Contracts may require holders to secure their
obligations thereunder in a specified manner.
The applicable Prospectus Supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units. The description in the Prospectus
Supplement will not necessarily be complete, and reference will be made to
the Stock Purchase Contracts, and, if applicable, collateral arrangements and
depositary arrangements, relating to such Stock Purchase Contracts or Stock
Purchase Units.
PLAN OF DISTRIBUTION
The Company may sell the Securities and the Cendant Trusts may sell
Preferred Securities being offered hereby in any of, or any combination of,
the following ways: (i) directly to purchasers; (ii) through agents; (iii)
through underwriters; and/or (iv) through dealers.
Offers to purchase Securities may be solicited directly by the Company
and/or a Cendant Trust or by agents designated by the Company and/or a
Cendant Trust from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of Securities, will be named, and any commissions payable by
the Company and/or a Cendant Trust to such agent will be set forth, in the
Prospectus Supplement. Unless otherwise indicated in a Prospectus Supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment (ordinarily five business days or less).
If an underwriter or underwriters are utilized in the offer or sale of
Securities, the Company and/or the applicable Cendant Trust will execute an
underwriting agreement with such underwriters at the time of sale of such
Securities to such underwriters and the names of such underwriters and the
principal terms of the Company's and/or the applicable Cendant Trust's
agreement with such underwriters will be set forth in the appropriate
Prospectus Supplement.
If a dealer is utilized in the offer or sale of Securities, the Company
and/or the applicable Cendant Trust will sell such Securities to such dealer,
as principal. Such dealer may then resell such Securities to the public at
varying prices to be determined by such dealer at the time of resale. The
name of such dealer and the principal terms of the Company's and/or the
applicable Cendant Trust's agreement with such dealer will be set forth in
the appropriate Prospectus Supplement.
Agents, underwriters, and dealers may be entitled under agreements with
the Company and/or a Cendant Trust to indemnification by the Company and/or a
Cendant Trust against certain liabilities, including liabilities under the
Securities Act. Agents, dealers and underwriters may also be customers of,
engage in transactions with, or perform services for the Company in the
ordinary course of their business.
Underwriters, agents or their controlling persons may engage in
transactions with and perform services for the Company in the ordinary course
of business.
The place and time of delivery for Securities will be set forth in the
accompanying Prospectus Supplement for such Securities.
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<PAGE>
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon on behalf of the Cendant Trusts by Skadden,
Arps, Slate, Meagher & Flom LLP. The validity of the Securities offered
hereby by the Company will be passed on for the Company by Eric J. Bock,
Esq., Vice President--Legal, of the Company. Mr. Bock holds shares of Common
Stock and options to acquire shares of Common Stock.
EXPERTS
The consolidated financial statements of the Company and its consolidated
subsidiaries, except PHH Corporation ("PHH"), as of December 31, 1996 and for
the years ended December 31, 1996 and January 31, 1996 and Cendant Membership
Services, Inc. ("CMS") and CUC International Inc. ("CUC") as of December 31,
1997 and January 31, 1997, respectively, and for the year ended December 31,
1997 and the years ended January 31, 1997 and 1996, respectively,
incorporated in this Prospectus by reference from the Company's Form 10-K for
the year ended December 31, 1997, have been audited by Deloitte & Touche LLP,
as stated in their report which is incorporated herein by reference. Such
financial statements of PHH, before the restatement related to the merger of
Cendant Corporation's relocation business with PHH and reclassifications to
conform to the presentation used by Cendant Corporation (consolidated with
those of the Company) have been audited by KPMG Peat Marwick LLP, independent
auditors of PHH Corporation, as stated in their report incorporated herein by
reference. The consolidated financial statements of CMS and CUC (consolidated
with those of the Company) have been audited by Ernst & Young LLP, as set forth
in their report which is incorporated herein by reference, which, as to the
year ended January 31, 1996, is based in part on the reports of Deloitte &
Touche LLP, independent auditors of Sierra On-Line, Inc., KPMG Peat Marwick LLP,
independent auditors of Davidson & Associates, Inc., and Price Waterhouse
LLP, independent accountants of Ideon Group, Inc. Such consolidated financial
statements of the Company and its consolidated subsidiaries are incorporated
by reference herein in reliance upon the respective reports of such firms
given upon their authority as experts in accounting and auditing. All of the
foregoing firms are independent auditors.
The consolidated financial statements of Avis Rent A Car, Inc.
incorporated in this Prospectus by reference from the Current Report on Form
8-K, dated February 6, 1998, filed by Cendant Corporation have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their report,
which is incorporated herein by reference, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Registration Fee $885,000
Trustee's Expenses .................................. 5,000
*Accounting Fees and Expenses ....................... 35,000
*Legal Fees and Expenses ............................ 10,000
*Miscellaneous ...................................... 10,000
----------
Total Expenses ...................................... $945,000
==========
</TABLE>
- ------------
* Estimated for purposes of completing the information required pursuant to
this Item 14.
The Company will pay all fees and expenses associated with filing the
Registration Statement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation 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, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation) by reason of the fact
that such person is or was a director, officer, employee or agent of such
corporation or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided that such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the
best interest of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. A Delaware corporation may indemnify directors, officers, employees
and other agents of such corporation in an action by or in the right of a
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the person to be indemnified has been
adjudged to be liable to the corporation. Where a director, officer, employee
or agent of the corporation is successful on the merits or otherwise in the
defense of any action, suit or proceeding referred to above or in defense of
any claim, issue or matter therein, the corporation must indemnify such
person against the expenses (including attorneys' fees) which he or she
actually and reasonably incurred in connection therewith.
The Registrant's By-Laws contain provisions that provide for
indemnification of officers and directors and their heirs and distributees to
full extent permitted by, and in the manner permissible under, the General
Corporation Law of the State of Delaware.
As permitted by Section 102(b)(7) of the General Corporation Law of the
State of Delaware, registrant's Amended and Restated Certificate of
Incorporation contains a provision eliminating the personal liability of a
director to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director, subject to certain exceptions.
The Company maintains, at its expense, a policy of insurance which insures
its directors and officers, subject to certain exclusions and deductions as
are usual in such insurance policies, against certain liabilities which may
be incurred in those capacities.
Article IV of the Declaration of Trust for each Trust limits the liability
to the Trust and certain other persons and provides for the indeminification
by the Trust or the Company of Trustees, the Officers, other employees and
certain other persons.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement (Standard Provisions) for Debt Securities. (Incorporated by
reference to Exhibit 1.1 to the Company's Form S-3 Registration Statement No. 333-45227)
1.2 Form of Underwriting Agreement (Standard Provisions) for Common Stock. (Incorporated by reference
to Exhibit 1.2 to the Company's Form S-3 Registration Statement No. 333-45227)
1.3 Form of Underwriting Agreement (Standard Provisions) for Preferred Stock. (Incorporated by
reference to Exhibit 1.3 to the Company's Form S-3 Registration Statement No. 333-45227)
1.4 Forms of Underwriting Agreement for Offering of Preferred Securities, Stock Purchase Units, Stock
Purchase Contracts, Guarantees and Warrants. (To be filed under subsequent Form 8-K, which is
incorporated herein by reference)
3.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to
Appendix B to the Joint Proxy Statement/Prospectus included as part of the Registration Statement
on Form S-4 of the Registrant, Registration No. 333-34517).
3.2 Amended and Restated By-Laws of the Registrant (incorporated by reference to Appendix C of the
Registrant's Proxy Statement/Prospectus included as part of the Registration Statement on Form
S-4 of the Registrant, Registration No. 333-34517).
4.1 Form of Certificate for the Company's Common Stock, par value $.01 per share. (Incorporated by
reference to Exhibit 4.1 to the Company's Form S-3 Registration Statement No. 333-45227)
4.2 Form of Senior Indenture to be entered into by the Company and The Bank of Nova Scotia Trust
Company of New York, as Trustee. (Incorporated by reference to Exhibit 4.2 to the Company's Form
S-3 Registration Statement No. 333-45227)
4.3 Form of Subordinated Indenture to be entered into by the Company and The Bank of Nova Scotia
Trust Company of New York, as Trustee. (Incorporated by reference to Exhibit 4.3 to the Company's
Form S-3 Registration Statement No. 333-45227)
4.4 Certificate of Trust of Cendant Capital II. (Incorporated by reference to Exhibit 4.5 to the
Company's Form S-3 Registration Statement No. 333-45227)
4.5 Certificate of Trust of Cendant Capital III. (Incorporated by reference to Exhibit 4.6 to the
Company's Form S-3 Registration Statement No. 333-45227)
4.6 Declaration of Trust of Cendant Capital II. (Incorporated by reference to Exhibit 4.8 to the
Company's Form S-3 Registration Statement No. 333-45227)
4.7 Declaration of Trust of Cendant Capital III. (Incorporated by reference to Exhibit 4.9 to the
Company's Form S-3 Registration Statement No. 333-45227)
4.8 Form of Amended and Restated Declaration of Trust of Cendant Capital II. (Including as Exhibit
A-1 the form of Preferred Security)(Incorporated by reference to Exhibit 4.11 to the Company's
Form S-3 Registration Statement No. 333-45227)
4.9 Form of Amended and Restated Declaration of Trust of Cendant Capital III. (Including as Exhibit
A-1 the form of Preferred Security)(Incorporated by reference to Exhibit 4.12 to the Company's
Form S-3 Registration Statement No. 333-45227)
4.10 Form of Preferred Securities Guarantee Agreement by Cendant Corporation with respect to Cendant
Capital II. (Incorporated by reference to Exhibit 4.14 to the Company's Form S-3 Registration
Statement No. 333-45227)
II-2
<PAGE>
EXHIBIT NO. DESCRIPTION
- ----------- -------------------------------------------------------------------------------------------------
4.11 Form of Preferred Securities Guarantee Agreement by Cendant Corporation with respect to Cendant
Capital III. (Incorporated by reference to Exhibit 4.15 to the Company's Form S-3 Registration
Statement No. 333-45227)
4.12 Form of Warrant Agreement.**
4.13 Form of Warrant.**
5.1 Opinion of Eric J. Bock, Esq. regarding the legality of the Securities being registered by the
Company hereby. (To be filed by subsequent Form 8-K, which is incorporated herein by reference)
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the legality of the Securities
being registered by the Cendant Trusts hereby. (To be filed by subsequent Form 8-K, which is
incorporated herein by reference)
12.1 Statement re: Computation of Consolidated Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP related to the financial statements of Cendant Corporation.
23.2 Consent of Ernst & Young LLP relating to the financial statements of CUC International Inc.
23.3 Consent of KPMG Peat Marwick LLP related to the financial statements of PHH Corporation.
23.4 Consent of Deloitte & Touche LLP relating to the financial statements of Sierra On-Line, Inc.
23.5 Consent of KPMG Peat Marwick LLP relating to the financial statements of Davidson & Associates,
Inc.
23.6 Consent of Price Waterhouse LLP relating to the financial statements of Ideon Group, Inc.
23.7 Consent of Deloitte & Touche LLP relating to the financial statements of Avis Rent A Car, Inc.
23.8 Consent of Eric J. Bock (included in Exhibit 5.1). (To be filed by subsequent Form 8-K, which is
incorporated herein by reference)
23.9 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2). (To be filed by
subsequent Form 8-K, which is incorporated herein by reference)
24.1 Power of attorney.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of Nova
Scotia Trust Company of New York, as Trustee for the Senior Debt Securities.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of Nova
Scotia Trust Company of New York, as Trustee for the Subordinated Debt Securities.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Wilmington Trust
Company, as Trustee under the Declaration of Trust of Cendant Capital II.
25.4 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Wilmington Trust
Company, as Trustee under the Preferred Securities Guarantee of Cendant Capital II.
25.5 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Wilmington Trust
Company, as Trustee under the Declaration of Trust of Cendant Capital III.
25.6 From T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Wilmington Trust
Company, as Trustee under the Preferred Securities Guarantee of Cendant Capital IV.
</TABLE>
- ------------
* Previously filed.
** To be filed by amendment.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The Undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement, 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 purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
each such Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrants pursuant to the foregoing provisions,
or otherwise, the Registrants have 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 such liabilities (other than the
payment by Registrants of expenses incurred or paid by a director, officer or
controlling person of such 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, such
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such idemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
(i) The undersigned Registrants hereby undertake that:
(1) For the purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cendant
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Parsippany, State of New Jersey, on
April 3, 1998.
CENDANT CORPORATION
By: /s/ James E. Buckman
----------------------
James E. Buckman
Senior Executive Vice
President,
General Counsel and
Director
II-5
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signatures
appear below, constitutes and appoints each of James E. Buckman, Stephen P.
Holmes and Eric J. Bock, or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person and in his name, place and stead, in any and
all capacities, in connection with the Registrant's Registration Statement in
the name and on behalf of the Registrant or on behalf of the undersigned as a
director or officer of the Registrant, on Form S-3 under the Securities Act
of 1933, as amended, including, without limiting the generality of the
foregoing, to sign the Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement, and any
subsequent registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as they might or could do in person,
thereby ratifying and confirming all that said attorneys-in-fact and agents,
or any of them, or their or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Walter A. Forbes
---------------------- Chairman of the Board April 3, 1998
(Walter A. Forbes)
/s/ Henry R. Silverman
---------------------- President, Chief Executive Officer April 3, 1998
(Henry R. Silverman) and Director
/s/ Michael P. Monaco
---------------------- Vice Chairman, Chief Financial April 3, 1998
(Michael P. Monaco) Officer and Director
/s/ Scott E. Forbes
---------------------- Senior Vice President-Finance April 3, 1998
Scott E. Forbes (Chief Accounting Officer)
/s/ Stephen P. Holmes
---------------------- Vice Chairman and Director April 3, 1998
(Stephen P. Holmes)
---------------------- Vice Chairman and Director April 3, 1998
(Robert D. Kunisch)
---------------------- Vice Chairman and Director April 3, 1998
(Christopher K. McLeod)
/s/ Kirk Shelton
---------------------- Vice Chairman and Director April 3, 1998
(E. Kirk Shelton)
II-6
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert T. Tucker Vice Chairman, Director and April 3, 1998
---------------------- Secretary
(Robert T. Tucker)
/s/ James E. Buckman Senior Executive Vice President, April 3, 1998
---------------------- General Counsel and Director
(James E. Buckman)
/s/ John D. Snodgrass Director April 3, 1998
----------------------
(John D. Snodgrass)
/s/ Bartlett Burnap Director April 3, 1998
----------------------
(Bartlett Burnap)
Director April 3, 1998
----------------------
(Leonard S. Coleman)
Director April 3, 1998
----------------------
(T. Barnes Donnelley)
Director April 3, 1998
----------------------
(Martin L. Edelman)
/s/ Frederick D. Green Director April 3, 1998
----------------------
(Frederick D. Green)
/s/ Stephen A. Greyser Director April 3, 1998
----------------------
(Stephen A. Greyser)
/s/ Carole G. Hankin Director April 3, 1998
----------------------
(Dr. Carole G. Hankin)
Director April 3, 1998
------------------------------------------
(The Rt. Hon. Brian Mulroney, P.C., LL.D.)
/s/ Robert E. Nederlander Director April 3, 1998
-------------------------
(Robert E. Nederlander)
/s/ Burton C. Perfit Director April 3, 1998
-----------------------
(Burton C. Perfit)
II-7
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Anthony G. Petrello Director April 3, 1998
-------------------------
(Anthony G. Petrello)
/s/ Robert W. Pittman Director April 3, 1998
-------------------------
(Robert W. Pittman)
/s/ E. John Rosenwald, Jr. Director April 3, 1998
-------------------------
(E. John Rosenwald, Jr.)
/s/ Robert P. Rittereiser Director April 3, 1998
-------------------------
(Robert P. Rittereiser)
/s/ Stanley M. Rumbough, Jr. Director April 3, 1998
---------------------------
(Stanley M. Rumbough, Jr.)
/s/ Leonard Schutzman Director April 3, 1998
-------------------------
(Leonard Schutzman)
Director April 3, 1998
-------------------------
(Robert F. Smith)
Director April 3, 1998
-------------------------
(Craig R. Stapleton)
</TABLE>
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cendant
Capital II and Cendant Capital III certify that they have reasonable grounds
to believe that they meet all of the requirements for filing on Form S-3 and
that they have duly caused this Registration Statement to be signed on their
behalf by the undersigned, thereunto duly authorized, in the City of
Parsippany, State of New Jersey on April 3, 1998.
CENDANT CAPITAL II
By: /s/ Michael P. Monaco
---------------------
Michael P. Monaco,
Trustee
By: /s/ James E. Buckman
--------------------
James E. Buckman,
Trustee
CENDANT CAPITAL III
By: /s/ Michael P. Monaco
---------------------
Michael P. Monaco,
Trustee
By: /s/ James E. Buckman
--------------------
James E. Buckman,
Trustee
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE NO.
- ----------- ------------------------------------------------------------------------------------------ --------
<S> <C>
1.1 Form of Underwriting Agreement (Standard Provisions) for Debt Securities. (Incorporated by
reference to Exhibit 1.1 to the Company's Form S-3 Registration Statement No. 333-45227)
1.2 Form of Underwriting Agreement (Standard Provisions) for Common Stock. (Incorporated by
reference to Exhibit 1.2 to the Company's Form S-3 Registration Statement No. 333-45227)
1.3 Form of Underwriting Agreement (Standard Provisions) for Preferred Stock. (Incorporated by
reference to Exhibit 1.3 to the Company's Form S-3 Registration Statement No. 333-45227)
1.4 Forms of Underwriting Agreement for Offering of Preferred Securities, Stock Purchase
Units, Stock Purchase Contracts, Guarantees and Warrants. (To be filed under subsequent
Form 8-K, which is incorporated herein by reference)
3.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Appendix B to the Joint Proxy Statement/Prospectus included as part of the
Registration Statement on Form S-4 of the Registrant, Registration No. 333-34517).
3.2 Amended and Restated By-Laws of the Registrant (incorporated by reference to Appendix C of
the Registrant's Proxy Statement/Prospectus included as part of the Registration Statement
on Form S-4 of the Registrant, Registration No. 333-34517).
4.1 Form of Certificate for the Company's Common Stock, par value $.01 per share.
(Incorporated by reference to Exhibit 4.1 to the Company's Form S-3 Registration Statement
No. 333-45227)
4.2 Form of Senior Indenture to be entered into by the Company and The Bank of Nova Scotia
Trust Company of New York, as Trustee. (Incorporated by reference to Exhibit 4.2 to the
Company's Form S-3 Registration Statement No. 333-45227)
4.3 Form of Subordinated Indenture to be entered into by the Company and The Bank of Nova
Scotia Trust Company of New York, as Trustee. (Incorporated by reference to Exhibit 4.3 to
the Company's Form S-3 Registration Statement No. 333-45227)
4.4 Certificate of Trust of Cendant Capital II. (Incorporated by reference to Exhibit 4.5 to
the Company's Form S-3 Registration Statement No. 333-45227)
4.5 Certificate of Trust of Cendant Capital III. (Incorporated by reference to Exhibit 4.6 to
the Company's Form S-3 Registration Statement No. 333-45227)
4.6 Declaration of Trust of Cendant Capital II. (Incorporated by reference to Exhibit 4.8 to
the Company's Form S-3 Registration Statement No. 333-45227)
4.7 Declaration of Trust of Cendant Capital III. (Incorporated by reference to Exhibit 4.9 to
the Company's Form S-3 Registration Statement No. 333-45227)
4.8 Form of Amended and Restated Declaration of Trust of Cendant Capital II. (Including as
Exhibit A-1 the form of Preferred Security)(Incorporated by reference to Exhibit 4.11 to
the Company's Form S-3 Registration Statement No. 333-45227)
4.9 Form of Amended and Restated Declaration of Trust of Cendant Capital III. (Including as
Exhibit A-1 the form of Preferred Security)(Incorporated by reference to Exhibit 4.12 to
the Company's Form S-3 Registration Statement No. 333-45227)
<PAGE>
EXHIBIT
NO. DESCRIPTION PAGE NO.
- ----------- ------------------------------------------------------------------------------------------ --------
4.10 Form of Preferred Securities Guarantee Agreement by Cendant Corporation with respect to
Cendant Capital II. (Incorporated by reference to Exhibit 4.14 to the Company's Form S-3
Registration Statement No. 333-45227)
4.11 Form of Preferred Securities Guarantee Agreement by Cendant Corporation with respect to
Cendant Capital III. (Incorporated by reference to Exhibit 4.15 to the Company's Form S-3
Registration Statement No. 333-45227)
4.12 Form of Warrant Agreement.**
4.13 Form of Warrant.**
5.1 Opinion of Eric J. Bock, Esq. regarding the legality of the Securities being registered by
the Company hereby. (To be filed by subsequent Form 8-K, which is incorporated herein by
reference)
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the legality of the
Securities being registered by the Cendant Trusts hereby. (To be filed by subsequent Form
8-K, which is incorporated herein by reference)
12.1 Statement re: Computation of Consolidated Ratio of Earnings to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP related to the financial statements of Cendant
Corporation.
23.2 Consent of Ernst & Young LLP relating to the financial statements of CUC International
Inc.
23.3 Consent of KPMG Peat Marwick LLP related to the financial statements of PHH Corporation.
23.4 Consent of Deloitte & Touche LLP relating to the financial statements of Sierra On-Line,
Inc.
23.5 Consent of KPMG Peat Marwick LLP relating to the financial statements of Davidson &
Associates, Inc.
23.6 Consent of Price Waterhouse LLP relating to the financial statements of Ideon Group, Inc.
23.7 Consent of Eric J. Bock (included in Exhibit 5.1). (To be filed by subsequent Form 8-K,
which is incorporated herein by reference)
23.8 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2). (To be
filed by subsequent Form 8-K, which is incorporated herein by reference)
24.1 Power of attorney.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of
Nova Scotia Trust Company of New York, as Trustee for the Senior Debt Securities.
25.2 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of
Nova Scotia Trust Company of New York, as Trustee for the Subordinated Debt Securities.
25.3 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Declaration of Trust of Cendant Capital II.
<PAGE>
EXHIBIT
NO. DESCRIPTION PAGE NO.
- ----------- ------------------------------------------------------------------------------------------ --------
25.4 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Preferred Securities Guarantee of Cendant Capital II.
25.5 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Declaration of Trust of Cendant Capital III.
25.6 From T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Wilmington
Trust Company, as Trustee under the Preferred Securities Guarantee of Cendant Capital IV.
</TABLE>
- ------------
* Previously filed.
** To be filed by amendment.
<PAGE>
EXHIBIT 12
CENDANT CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (1)
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------
1997 1996 1995 1994 1993
--------- ----------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Income before income taxes, minority
interest and extraordinary loss $294.7 $ 713.7 $503.3 $464.3 $365.9
Plus: Fixed charges 430.4 345.4 295.2 238.6 217.4
Less: Capitalized interest -- (.6) -- (.2) (.4)
--------- ----------- --------- --------- ---------
Earnings available to cover fixed charges $725.1 $1,058.5 $798.5 $702.7 $582.9
========= =========== ========= ========= =========
Fixed charges (2):
Interest, including amortization of deferred
loans costs $397.0 $ 317.1 $273.2 $219.8 $198.9
Capitalized interest -- .6 -- .2 .4
Interest portion of rental payment 33.4 27.7 22.0 18.6 18.1
--------- ----------- --------- --------- ---------
Total fixed charges $430.4 $ 345.4 $295.2 $238.6 $217.4
========= =========== ========= ========= =========
Ratio of earnings to fixed charges (3) 1.68x 3.06x 2.70x 2.95x 2.68x
========= =========== ========= ========= =========
</TABLE>
- ------------
(1) For the years ended 1993 through 1995, information included for CUC
International Inc. and PHH Corporation is based on the fiscal years
ended January 31.
(2) Fixed charges consist of interest expense on all indebtedness
(including amortization of deferred financing costs) and the portion of
operating lease rental expense that is representative of the interest
factor (deemed to be one-third of operating lease rentals).
(3) For the year ended December 31, 1997, income before income taxes
includes non-recurring merger-related costs and other unusual charges
in the amount of $1,147.9 million ($816.8 million after-tax). Excluding
such charges, the ratio of earnings to fixed charges is 4.34x.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Cendant Corporation on Form S-3 of our report dated March 30, 1998,
appearing in the Annual Report on Form 10-K of Cendant Corporation for the
year ended December 31, 1997, and to the reference to us under the heading
"Experts" in the Prospectus, which is a part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
March 30, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated February 3, 1998 (with respect to the
consolidated financial statements, not included herein, of Cendant Membership
Services, Inc. and CUC International Inc.), included in the Annual Report
(Form 10-K) of Cendant Corporation (formerly "CUC International Inc."),
incorporated by reference in the Form S-3 Registration Statement and related
Prospectus of Cendant Corporation for the registration of up to
$3,000,000,000 of its Securities.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Stamford, Connecticut
March 31, 1998
<PAGE>
EXHIBIT 23.3
The Board of Directors
PHH Corporation:
We consent to the incorporation by reference in this Registration Statement
of Cendant Corporation on Form S-3 of our report dated April 30, 1997, with
respect to the consolidated balance sheet of PHH Corporation and subsidiaries
(the "Company") at December 31, 1996 and the related consolidated statements
of income, shareholders' equity, and cash flows for the years ended
December 31, 1996 and January 31, 1996, before the restatement related to the
merger of Cendant Corporation's relocation business with the Company and
reclassifications to conform to the presentation used by Cendant Corporation,
which report appears in the Annual Report on Form 10-K of Cendant Corporation
for the year ended December 31, 1997, which is incorporated by reference in
this Registration Statement. We also consent to the reference to our firm
under the heading "Experts" in this Registration Statement.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Baltimore, Maryland
March 30, 1998
<PAGE>
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Cendant Corporation on Form S-3 of our report dated June 24, 1996, related
to the consolidated financial statements of Sierra On-Line Inc., which report
appears in the Annual Report on Form 10-K of Cendant Corporation for the year
ended December 31, 1997, and to the reference to us under the heading "Experts"
in the Prospectus, which is a part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Seattle, Washington
March 30, 1998
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Cendant Corporation
We consent to the use of our report incorporated by reference in the
Registration Statement of Cendant Corporation on Form S-3 (No. 333- )
with respect to the consolidated statements of earnings, shareholders'
equity, and cash flows of Davidson & Associates, Inc. and subsidiaries for
the year ended December 31, 1995 and to the reference to our firm under the
heading "Experts" in the prospectus. Our report appears in the Annual Report
on Form 10-K of Cendant Corporation dated March 31, 1998.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Long Beach, California
March 31, 1998
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 (No. 333- )
of Cendant Corporation of our report dated February 2, 1996, relating to the
consolidated financial statements of Ideon Group, Inc., which appears on
page F-8 in the Annual Report on Form 10-K of Cendant Corporation for the year
ended December 31, 1997. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Tampa, Florida
March 30, 1998
<PAGE>
EXHIBIT 23.7
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Cendant Corporation on Form S-3 of our report dated May 12, 1997 (August
20, 1997 as to Note 15), related to the consolidated financial statements of
Avis Rent A Car, Inc., appearing in the Current Report on Form 8-K of Cendant
Corporation filed on February 6, 1998, and to the reference to us under the
heading "Experts" in the Prospectus, which is a part of this Registration
Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
New York, New York
March 30, 1998
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
----------------
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5691211
(State of Incorporation (I.R.S. employer
if not a U.S. national bank) Identification number)
One Liberty Plaza 10006
New York, N.Y. (Zip code)
(Address of principal
Executive office)
----------------------------------------
CENDANT CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
06-0918165
(I.R.S. employer identification no.)
6 Sylvan Way
Parsippany, N.J. 07054
(Adderss of principal executive offices)(Postal Code)
----------------------------------------
CONVERTIBLE AND NON-CONVERTIBLE
SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
-2-
Item 1. General information
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of New York
33 Liberty Street
New York, N.Y. 10045
State of New York Banking Department
State House, Albany, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliation with the Obligor.
-----------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the Trustee.
Item 16. List of Exhibits.
-----------------
List below all exhibits filed as part of this statement of
eligibility.
Exhibit 1 - Copy of the Organization Certificate of the Trustee as now
in effect. (Exhibit 1 to T-1 to Registration Statement
No. 333-6688).
Exhibit 2 - Copy of the Certificate of Authority of the Trustee to
commerce business. (Exhibit 2 to T-1 to Registration
Statement No. 333-6688).
Exhibit 3 - None; authorization to exercise corporate trust powers is
contained in the documents identified above as Exhibit 1
and 2.
Exhibit 4 - Copy of the existing By-Laws of the Trustee. (Exhibit 4
to T-1 to Registration Statement No. 333-6688).
Exhibit 5 - No Indenture referred to Item 4.
Exhibit 6 - The consent of the Trustee required by Section 321 (b)
of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to
Registration Statement No. 333-27685).
Exhibit 7 - Copy of the latest Report of Condition of the Trustee as
of December 31, 1997.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, The Bank of Nova Scotia Trust Company of New York, a corporation
organized and existing under the laws of the State of New York, has duly caused
this statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York,
on the 3rd day of April, 1998.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK
By: /s/ George E. Timmes
-------------------------------------
George E. Timmes
Vice President
<PAGE>
FFIEC 034
Page RC-1
The Bank of Nova Scotia Trust Company of New York
- ---------------------------------------------------
Legal Title of Bank
New York
- ---------------------------------------------------
City
New York 10006
- ---------------------------------------------------
State Zip Code
FDIC Certificate Number |_|_|_|_|_|
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1997
ALL SCHEDULES ARE TO BE REPORTED IN THOUSANDS OF DOLLARS. UNLESS OTHERWISE
INDICATED, REPORT THE AMOUNT OUTSTANDING AS OF THE LAST BUSINESS DAY OF THE
QUARTER.
SCHEDULE RC-BALANCE SHEET
<TABLE>
<CAPTION>
C100
------------------
DOLLAR AMOUNTS IN THOUSANDS MIL THOU
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and coin(1)(2) ............................................. RCON 645 1.a.
0061
b. Interest-bearing balances(3) ......................................................................... RCON 0 1.b.
0071
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) ........................................... RCON 1 877 2.a.
1754
b. Available-for-sale securities (from Schedule RC-B, column D) ......................................... RCON 0 2.b.
1773
3. Federal funds sold(4) and securities purchased under agreements to resell ............................... RCON 2 500 3.
1350
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) .................... RCON 4.a.
2122
b. LESS: Allowance for loan and lease losses ......................................... RCON 4.b.
3123
c. LESS: Allocated transfer risk reserve ............................................. RCON 4.c.
3128
d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a
minus 4.b and 4.c) ................................................................................... RCON 0 4.d.
2125
5. Trading assets .......................................................................................... RCON 0 5.
3545
6. Premises and fixed assets (including capitalized leases) ................................................ RCON 12 6.
2145
7. Other real estate owned (from Schedule RC-M) ............................................................ RCON 0 7.
2150
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ................ RCON 0 8.
2130
9. Customers' liability to this bank on acceptances outstanding ............................................ RCON 0 9.
2155
10. Intangible assets (from Schedule RC-M) .................................................................. RCON 0 10.
2143
11. Other assets (from Schedule RC-F) ....................................................................... RCON 117 11.
2160
12. a. Total assets (sum of items 1 through 11) ............................................................. RCON 5 151 12.a.
2170
b. Losses deferred pursuant to 12 U.S.C. 1823(j) ........................................................ RCON 0 12.b.
0306
c. Total assets and losses deferred pursuant to 12 U.S.C. 1823(j) (sum of items 12.a and 12.b) .......... RCON 5 151 12.c
0307
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b.
(3) Includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a. "Loans and
leases, net of unearned income," and in Schedule RC-C, part I.
<PAGE>
FFIEC 034
Page RC-2
<TABLE>
<CAPTION>
----------------
DOLLAR AMOUNTS IN THOUSANDS MIL THOU
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)......................... RCON 2 915 13.a.
2200
(1) Noninterest-bearing(1)..........................................................RCON 2 059 13.a.(1)
6631
(2) Interest-bearing ...............................................................RCON 856 13.a.(2)
6636
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ....................................
(1) Noninterest-bearing ..........................................................................
(2) Interest-bearing .............................................................................
14. Federal funds purchased(3) and securities sold under agreements to repurchase........................ RCON 0 14.
2800
15. a. Demand notes issued to the U.S. Treasury ......................................................... RCON 0 15.a.
2840
b. Trading liabilities .............................................................................. RCON 0 15.b.
3548
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases):
a. With a remaining maturity of one year or less .................................................... RCON 0 16.a.
2332
b. With a remaining maturity of more than one year through three years .............................. RCON 0 16.b.
A547
c. With a remaining maturity of more than three years ............................................... RCON 0 16.c
A548
17. Not applicable
18. Bank's liability on acceptances executed and outstanding............................................. RCON 0 18.
2920
19. Subordinated notes and debentures(3)................................................................. RCON 0 19.
3200
20. Other liabilities (from Schedule RC-G)............................................................... RCON 88 20.
2930
21. Total liabilities (sum of items 13 through 20)....................................................... RCON 3 003 21.
2948
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........................................................ RCON 0 23.
3838
24. Common stock......................................................................................... RCON 1 000 24.
3230
25. Surplus (exclude all surplus related to preferred stock)............................................. RCON 1 000 25.
3839
26. a. Undivided profits and capital reserves............................................................ RCON 148 26.a.
3632
b. Net unrealized holding gains (losses) on available-for-sale securities............................ RCON 0 26.b.
8434
27. Cumulative foreign currency translation adjustments..................................................
28. a. Total equity capital (sum of items 23 through 27)................................................. RCON 2 148 28.a.
3210
b. Losses deferred pursuant to 12 U.S.C. 1823(j)..................................................... RCON 0 28.b.
0306
c. Total equity capital and losses deferred pursuant to 12 U.S.C. 1823(j) (sum of items 28.a
and 28.b)......................................................................................... RCON 2 148 28.c
3559
29. Total liabilities, equity capital, and losses deferred pursuant to 12 U.S.C. 1823(j)
(sum of items 21 and 28.c)........................................................................... RCON 5 151 29.
2257
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
Number
-----------
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the bank by independent external
auditors as of any date during 1996.........................RCON M.1.
6724
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Report "term federal funds purchased" in Schedule RC, Item 16, "Other
borrowed money."
(3) Includes limited-life preferred stock and related surplus.
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
----------------
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5691211
(State of Incorporation (I.R.S. employer
if not a U.S. national bank) Identification number)
One Liberty Plaza 10006
New York, N.Y. (Zip code)
(Address of principal
Executive office)
----------------------------------------
CENDANT CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
06-0918165
(I.R.S. employer identification no.)
6 Sylvan Way
Parsippany, N.J. 07054
(Adderss of principal executive offices)(Postal Code)
----------------------------------------
CONVERTIBLE AND NON-CONVERTIBLE
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
-2-
Item 1. General information
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of New York
33 Liberty Street
New York, N.Y. 10045
State of New York Banking Department
State House, Albany, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliation with the Obligor.
-----------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the Trustee.
Item 16. List of Exhibits.
-----------------
List below all exhibits filed as part of this statement of
eligibility.
Exhibit 1 - Copy of the Organization Certificate of the Trustee as now
in effect. (Exhibit 1 to T-1 to Registration Statement
No. 333-6688).
Exhibit 2 - Copy of the Certificate of Authority of the Trustee to
commerce business. (Exhibit 2 to T-1 to Registration
Statement No. 333-6688).
Exhibit 3 - None; authorization to exercise corporate trust powers is
contained in the documents identified above as Exhibit 1
and 2.
Exhibit 4 - Copy of the existing By-Laws of the Trustee. (Exhibit 4
to T-1 to Registration Statement No. 333-6688).
Exhibit 5 - No Indenture referred to Item 4.
Exhibit 6 - The consent of the Trustee required by Section 321 (b)
of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to
Registration Statement No. 333-27685).
Exhibit 7 - Copy of the latest Report of Condition of the Trustee as
of December 31, 1997.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, The Bank of Nova Scotia Trust Company of New York, a corporation
organized and existing under the laws of the State of New York, has duly caused
this statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York,
on the 3rd day of April, 1998.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK
By: /s/ George E. Timmes
-------------------------------------
George E. Timmes
Vice President
<PAGE>
The Bank of Nova Scotia Trust Company of New York
- ---------------------------------------------------
Legal Title of Bank
New York
- ---------------------------------------------------
City
New York 10006
- ---------------------------------------------------
State Zip Code
FDIC Certificate Number |_|_|_|_|_|
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1997
ALL SCHEDULES ARE TO BE REPORTED IN THOUSANDS OF DOLLARS. UNLESS OTHERWISE
INDICATED, REPORT THE AMOUNT OUTSTANDING AS OF THE LAST BUSINESS DAY OF THE
QUARTER.
SCHEDULE RC-BALANCE SHEET
<TABLE>
<CAPTION>
C100
------------------
DOLLAR AMOUNTS IN THOUSANDS MIL THOU
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and coin(1)(2) ............................................. RCON 645 1.a.
0061
b. Interest-bearing balances(3) ......................................................................... RCON 0 1.b.
0071
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) ........................................... RCON 1 877 2.a.
1754
b. Available-for-sale securities (from Schedule RC-B, column D) ......................................... RCON 0 2.b.
1773
3. Federal funds sold(4) and securities purchased under agreements to resell ............................... RCON 2 500 3.
1350
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) .................... RCON 4.a.
2122
b. LESS: Allowance for loan and lease losses ......................................... RCON 4.b.
3123
c. LESS: Allocated transfer risk reserve ............................................. RCON 4.c.
3128
d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a
minus 4.b and 4.c) ................................................................................... RCON 0 4.d.
2125
5. Trading assets .......................................................................................... RCON 0 5.
3545
6. Premises and fixed assets (including capitalized leases) ................................................ RCON 12 6.
2145
7. Other real estate owned (from Schedule RC-M) ............................................................ RCON 0 7.
2150
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) ................ RCON 0 8.
2130
9. Customers' liability to this bank on acceptances outstanding ............................................ RCON 0 9.
2155
10. Intangible assets (from Schedule RC-M) .................................................................. RCON 0 10.
2143
11. Other assets (from Schedule RC-F) ....................................................................... RCON 117 11.
2160
12. a. Total assets (sum of items 1 through 11) ............................................................. RCON 5 151 12.a.
2170
b. Losses deferred pursuant to 12 U.S.C. 1823(j) ........................................................ RCON 0 12.b.
0306
c. Total assets and losses deferred pursuant to 12 U.S.C. 1823(j) (sum of items 12.a and 12.b) .......... RCON 5 151 12.c
0307
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b.
(3) Includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a. "Loans and
leases, net of unearned income," and in Schedule RC-C, part I.
<PAGE>
<TABLE>
<CAPTION>
C100
----------------
DOLLAR AMOUNTS IN THOUSANDS MIL THOU
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)......................... RCON 2 915 13.a.
2200
(1) Noninterest-bearing(1)..........................................................RCON 2 059 13.a.(1)
6631
(2) Interest-bearing ...............................................................RCON 856 13.a.(2)
6636
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ....................................
(1) Noninterest-bearing ..........................................................................
(2) Interest-bearing .............................................................................
14. Federal funds purchased(3) and securities sold under agreements to repurchase........................ RCON 0 14.
2800
15. a. Demand notes issued to the U.S. Treasury ......................................................... RCON 0 15.a.
2840
b. Trading liabilities .............................................................................. RCON 0 15.b.
3548
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases):
a. With a remaining maturity of one year or less .................................................... RCON 0 16.a.
2332
b. With a remaining maturity of more than one year through three years .............................. RCON 0 16.b.
A547
c. With a remaining maturity of more than three years ............................................... RCON 0 16.c
A548
17. Not applicable
18. Bank's liability on acceptances executed and outstanding............................................. RCON 0 18.
2920
19. Subordinated notes and debentures(3)................................................................. RCON 0 19.
3200
20. Other liabilities (from Schedule RC-G)............................................................... RCON 88 20.
2930
21. Total liabilities (sum of items 13 through 20)....................................................... RCON 3 003 21.
2948
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........................................................ RCON 0 23.
3838
24. Common stock......................................................................................... RCON 1 000 24.
3230
25. Surplus (exclude all surplus related to preferred stock)............................................. RCON 1 000 25.
3839
26. a. Undivided profits and capital reserves............................................................ RCON 148 26.a.
3632
b. Net unrealized holding gains (losses) on available-for-sale securities............................ RCON 0 26.b.
8434
27. Cumulative foreign currency translation adjustments..................................................
28. a. Total equity capital (sum of items 23 through 27)................................................. RCON 2 148 28.a.
3210
b. Losses deferred pursuant to 12 U.S.C. 1823(j)..................................................... RCON 0 28.b.
0306
c. Total equity capital and losses deferred pursuant to 12 U.S.C. 1823(j) (sum of items 28.a
and 28.b)......................................................................................... RCON 2 148 28.c
3559
29. Total liabilities, equity capital, and losses deferred pursuant to 12 U.S.C. 1823(j)
(sum of items 21 and 28.c)........................................................................... RCON 5 151 29.
2257
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
Number
-----------
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of
auditing work performed for the bank by independent external
auditors as of any date during 1996.........................RCON M.1.
6724
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Report "term federal funds purchased" in Schedule RC, Item 16, "Other
borrowed money."
(3) Includes limited-life preferred stock and related surplus.
<PAGE>
Registration No.
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
-----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
CENDANT CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
Delaware 22-3565323
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Preferred Securities of Cendant Capital II
(Title of the indenture securities)
===============================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
<PAGE>
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust
powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by
Section 321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of April, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Linda M. Barley By: /s/ David P. Fontello
----------------------------- ------------------------------
Assistant Secretary Name: David P. Fontello
Title: Vice President
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST:- The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND:- The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is Wilmington Trust
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120
Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places
of business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of money, or securities
for money, to buy gold and silver bullion and foreign coins, to buy and sell
bills of exchange, and generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate or interests
therein, and to guarantee the holder of such property, real or personal,
against any claim or claims, adverse to his interest therein, and to prepare
and give certificates of title for any lands or premises in the State of
Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt, collection,
custody, investment and management of funds, and the purchase, sale,
management and disposal of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases, conveyances,
mortgages, bonds and legal papers of every description, and to carry on the
business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds,
bonds and any and all other personal property of every sort and kind, from
executors, administrators, guardians, public officers, courts, receivers,
assignees, trustees, and from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering, issuing,
certificating, countersigning, transferring or underwriting the stock, bonds
or other obligations of any corporation, association, state or municipality,
and may receive and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act as Treasurer
of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other person or
persons, corporation or corporations.
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(8) To guarantee the validity, performance or effect of any contract or
agreement, and the fidelity of persons holding places of responsibility or
trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons, corporations, court,
officer, or authority, in the State of Delaware or elsewhere; and whenever
this Corporation is so appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its capital
stock shall be taken and held as security for the performance of the duties
devolving upon it by such appointment.
(10)And for its care, management and trouble, and the exercise of any of its
powers hereby given, or for the performance of any of the duties which it may
undertake or be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to receive a proper
compensation.
(11)To purchase, receive, hold and own bonds, mortgages, debentures, shares of
capital stock, and other securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any foreign
government or country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences of
indebtedness and other property, any and all the rights, powers and privileges
of individual
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owners thereof, including the right to vote thereon; to invest and deal
in and with any of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and secure the same by
pledges or deeds of trust or mortgages of or upon the whole or any part
of the property held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall determine, and in
the promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal property of any
name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the
laws of the State of Delaware, it is hereby expressly provided that the said
Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent
as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so purchased;
to conduct in any lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit as
to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations
and businesses, without restriction to the same extent as natural persons
might or could do, to purchase or otherwise acquire, to hold, own, to
mortgage, sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State, District,
Territory or Colony of the United States, and in any foreign country or
place.
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(6) It is the intention that the objects, purposes and powers specified
and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00
per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors each
of said series to be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be cumulative, if
made cumulative. The voting powers and the preferences and relative,
participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to the
provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the
Board of Directors of the Corporation is hereby expressly granted authority to
fix by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights, and
the qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of Preferred
Stock which shall constitute such series, which number may be increased
(except where otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then outstanding) from time
to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which,
dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other class of
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stock and whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series
to convert the same into or exchange the same for, shares of any other
class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series
upon the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred
Stock which may, without limiting the generality of the foregoing include
the right, voting as a series or by itself or together with other series
of Preferred Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of section (b) of
this Article FOURTH), if any, shall have been met and after the Corporation
shall have complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article FOURTH), then and
not otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any, (fixed
in accordance with the provisions of section (b) of this Article FOURTH),
to be distributed to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common Stock held by
them respectively.
(3) Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each holder of
Common Stock shall have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or series, but
any such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of Preferred
Stock in relation to the relative powers, preferences and rights of each other
series of Preferred Stock shall, in each case, be as fixed from time to time
by the Board of Directors in the resolution or resolutions adopted pursuant to
authority granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required for
the issuance by the Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant to section
(b) of this Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the outstanding shares
of such series voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of Preferred
Stock may be issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock may,
without a class or series vote, be increased or decreased from time to time by
the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be conducted
and managed by a Board of Directors. The number of directors constituting the
entire Board shall be not less than five nor more than twenty-five as fixed
from time to time by vote of a majority of the whole Board, provided, however,
that the number of directors shall not be reduced so as to shorten the term of
any director at the time in office, and provided further, that the number of
directors constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal
in number as the then total number of directors constituting the whole Board
permits, with the term of office of one class expiring each year. At the
annual meeting of stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding annual
meeting, directors of the second class shall be elected to hold office for a
term expiring at the second succeeding annual meeting and directors of the
third class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a majority of
the directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director shall
have been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Charter or Act of
Incorporation or the By-Laws of the Corporation), any director or the entire
Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered or
mailed by first class United States mail, postage prepaid, to the Secretary of
the Corporation not less than 14 days nor more than 50 days prior to any
meeting of the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as prescribed,
to the Secretary of the Corporation not later than the close of the seventh
day following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of such nominee and
(iii) the number of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as may be
provided in the By-Laws as they may from time to time find necessary or proper.
SEVENTH:- The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved March
10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or in
the By-Laws of the Company, shall have and may exercise all of the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the Corporation to
be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable for the
payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a vote
of the majority of the entire Board. The stockholders may make, alter or
repeal any By-Law whether or not adopted by them, provided however, that any
such additional By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State of
Delaware at such places as may be from time to time designated by the Board,
and the Directors may keep the books of the Company outside of the State of
Delaware at such places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except
as otherwise expressly provided in sections (b) and (c) of this Article
FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10% of
the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two years
prior thereto was the beneficial owner, directly or indirectly, of not
less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of capital
stock of the Corporation which were at any time within two years prior
thereto beneficially owned by any Interested Stockholder, and such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the
right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote pursuant to
any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other
person with which such first mentioned person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned through
application of paragraph (3) above but shall not include any other Voting
Shares which may be issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given those
terms in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on December 31, 1981.
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(6)"Subsidiary" shall mean any corporation of which a majority of any class of
equity security (as defined in Rule 3a11-1 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Investment Stockholder set
forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine
for the purposes of this Article FIFTEENTH on the basis of information
known to them, (1) the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of another, (3)
whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any other
vote that may be required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least two-thirds of the
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) shall be required to amend, alter or repeal any provision of Articles
FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of
Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation
Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any person
who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time
or place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
2
<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors
or the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors. In the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and of
all the transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor
and such duties as may be prescribed by the officer in charge of the Audit
Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman
of the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in
connection with obtaining the consent of stockholders for any purpose, which
record date shall not be more than 60 nor less than 10 days preceding the
date of any meeting of stockholders or the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect, or a date in
connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
however, that the payment of expenses incurred by a Director officer in his
capacity as a Director or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be ultimately determined
that the Director or officer is not entitled to be indemnified under this
Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: April 1, 1998 By: /s/ David P. Fontello
---------------------
Name: David P. Fontello
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------- -----------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1997.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 236,646
Interest-bearing balances...................................... 0
Held-to-maturity securities......................................... 331,880
Available-for-sale securities....................................... 1,258,661
Federal funds sold and securities purchased under agreements to
resell............................................................. 91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income....... 3,822,320
LESS: Allowance for loan and lease losses...... 59,373
LESS: Allocated transfer risk reserve.......... 0
Loans and leases, net of unearned income, allowance, and
reserve...................................................... 3,762,947
Assets held in trading accounts..................................... 0
Premises and fixed assets (including capitalized leases)............ 129,740
Other real estate owned............................................. 2,106
Investments in unconsolidated subsidiaries and associated companies. 22
Customers' liability to this bank on acceptances outstanding........ 0
Intangible assets................................................... 4,905
Other assets........................................................ 100,799
Total assets........................................................ 5,919,206
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 4,034,633
Noninterest-bearing........................... 839,928
Interest-bearing.............................. 3,194,705
Federal funds purchased and Securities sold under agreements to
repurchase........................................................ 575,827
Demand notes issued to the U.S. Treasury........................... 61,290
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:
With original maturity of one year or less.................... 673,000
With original maturity of more than one year.................. 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 76,458
Total liabilities.................................................. 5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 385,018
Net unrealized holding gains (losses) on available-for-sale
securities........................................................ 7,362
Total equity capital............................................... 454,998
Total liabilities, limited-life preferred stock, and equity
capital........................................................... 5,919,206
</TABLE>
2
<PAGE>
Registration No.
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
-----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Guarantees and backup undertakings of Cendant
Corporation in connection with Preferred Securities of Cendant Capital II
by Cendant Corporation
(Title of the indenture securities)
===============================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
<PAGE>
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust
powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by
Section 321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of April, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Linda M. Barley By: /s/ David P. Fontello
---------------------------- ------------------------
Assistant Secretary Name: David P. Fontello
Title: Vice President
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST:- The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND:- The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is WILMINGTON TRUST
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120
Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places
of business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of money, or securities
for money, to buy gold and silver bullion and foreign coins, to buy and sell
bills of exchange, and generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate or interests
therein, and to guarantee the holder of such property, real or personal,
against any claim or claims, adverse to his interest therein, and to prepare
and give certificates of title for any lands or premises in the State of
Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt, collection,
custody, investment and management of funds, and the purchase, sale,
management and disposal of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases, conveyances,
mortgages, bonds and legal papers of every description, and to carry on the
business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds,
bonds and any and all other personal property of every sort and kind, from
executors, administrators, guardians, public officers, courts, receivers,
assignees, trustees, and from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering, issuing,
certificating, countersigning, transferring or underwriting the stock, bonds
or other obligations of any corporation, association, state or municipality,
and may receive and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act as Treasurer
of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other person or
persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract or
agreement, and the fidelity of persons holding places of responsibility or
trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons, corporations, court,
officer, or authority, in the State of Delaware or elsewhere; and whenever
this Corporation is so appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its capital
stock shall be taken and held as security for the performance of the duties
devolving upon it by such appointment.
(10)And for its care, management and trouble, and the exercise of any of its
powers hereby given, or for the performance of any of the duties which it may
undertake or be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to receive a proper
compensation.
(11)To purchase, receive, hold and own bonds, mortgages, debentures, shares of
capital stock, and other securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any foreign
government or country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences of
indebtedness and other property, any and all the rights, powers and privileges
of individual
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owners thereof, including the right to vote thereon; to invest and deal
in and with any of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and secure the same by
pledges or deeds of trust or mortgages of or upon the whole or any part
of the property held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall determine, and in
the promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal property of any
name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the
laws of the State of Delaware, it is hereby expressly provided that the said
Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent
as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so purchased;
to conduct in any lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit as
to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations
and businesses, without restriction to the same extent as natural persons
might or could do, to purchase or otherwise acquire, to hold, own, to
mortgage, sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State, District,
Territory or Colony of the United States, and in any foreign country or
place.
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(6) It is the intention that the objects, purposes and powers specified
and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00
per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors each
of said series to be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be cumulative, if
made cumulative. The voting powers and the preferences and relative,
participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to the
provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the
Board of Directors of the Corporation is hereby expressly granted authority to
fix by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights, and
the qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of Preferred
Stock which shall constitute such series, which number may be increased
(except where otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then outstanding) from time
to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which,
dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other class of
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stock and whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series
to convert the same into or exchange the same for, shares of any other
class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series
upon the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred
Stock which may, without limiting the generality of the foregoing include
the right, voting as a series or by itself or together with other series
of Preferred Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of section (b) of
this Article FOURTH), if any, shall have been met and after the Corporation
shall have complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article FOURTH), then and
not otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any, (fixed
in accordance with the provisions of section (b) of this Article FOURTH),
to be distributed to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common Stock held by
them respectively.
(3) Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each holder of
Common Stock shall have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or series, but
any such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of Preferred
Stock in relation to the relative powers, preferences and rights of each other
series of Preferred Stock shall, in each case, be as fixed from time to time
by the Board of Directors in the resolution or resolutions adopted pursuant to
authority granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required for
the issuance by the Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant to section
(b) of this Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the outstanding shares
of such series voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of Preferred
Stock may be issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock may,
without a class or series vote, be increased or decreased from time to time by
the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be conducted
and managed by a Board of Directors. The number of directors constituting the
entire Board shall be not less than five nor more than twenty-five as fixed
from time to time by vote of a majority of the whole Board, provided, however,
that the number of directors shall not be reduced so as to shorten the term of
any director at the time in office, and provided further, that the number of
directors constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal
in number as the then total number of directors constituting the whole Board
permits, with the term of office of one class expiring each year. At the
annual meeting of stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding annual
meeting, directors of the second class shall be elected to hold office for a
term expiring at the second succeeding annual meeting and directors of the
third class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a majority of
the directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director shall
have been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Charter or Act of
Incorporation or the By-Laws of the Corporation), any director or the entire
Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered or
mailed by first class United States mail, postage prepaid, to the Secretary of
the Corporation not less than 14 days nor more than 50 days prior to any
meeting of the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as prescribed,
to the Secretary of the Corporation not later than the close of the seventh
day following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of such nominee and
(iii) the number of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as may be
provided in the By-Laws as they may from time to time find necessary or proper.
SEVENTH:- The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved March
10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or in
the By-Laws of the Company, shall have and may exercise all of the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the Corporation to
be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable for the
payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a vote
of the majority of the entire Board. The stockholders may make, alter or
repeal any By-Law whether or not adopted by them, provided however, that any
such additional By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State of
Delaware at such places as may be from time to time designated by the Board,
and the Directors may keep the books of the Company outside of the State of
Delaware at such places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except
as otherwise expressly provided in sections (b) and (c) of this Article
FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10% of
the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two years
prior thereto was the beneficial owner, directly or indirectly, of not
less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of capital
stock of the Corporation which were at any time within two years prior
thereto beneficially owned by any Interested Stockholder, and such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the
right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote pursuant to
any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other
person with which such first mentioned person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned through
application of paragraph (3) above but shall not include any other Voting
Shares which may be issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given those
terms in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on December 31, 1981.
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(6)"Subsidiary" shall mean any corporation of which a majority of any class of
equity security (as defined in Rule 3a11-1 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Investment Stockholder set
forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine
for the purposes of this Article FIFTEENTH on the basis of information
known to them, (1) the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of another, (3)
whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any other
vote that may be required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least two-thirds of the
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) shall be required to amend, alter or repeal any provision of Articles
FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of
Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation
Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any person
who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time
or place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
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<PAGE>
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors
or the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and of
all the transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor
and such duties as may be prescribed by the officer in charge of the Audit
Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman
of the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in
connection with obtaining the consent of stockholders for any purpose, which
record date shall not be more than 60 nor less than 10 days proceeding the
date of any meeting of stockholders or the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect, or a date in
connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
however, that the payment of expenses incurred by a Director officer in his
capacity as a Director or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be ultimately determined
that the Director or officer is not entitled to be indemnified under this
Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: April 1, 1998 By: /s/ David P. Fontello
---------------------
Name: David P. Fontello
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------- -----------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1997.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 236,646
Interest-bearing balances...................................... 0
Held-to-maturity securities......................................... 331,880
Available-for-sale securities....................................... 1,258,661
Federal funds sold and securities purchased under agreements to
resell............................................................. 91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income....... 3,822,320
LESS: Allowance for loan and lease losses...... 59,373
LESS: Allocated transfer risk reserve.......... 0
Loans and leases, net of unearned income, allowance, and
reserve...................................................... 3,762,947
Assets held in trading accounts..................................... 0
Premises and fixed assets (including capitalized leases)............ 129,740
Other real estate owned............................................. 2,106
Investments in unconsolidated subsidiaries and associated companies. 22
Customers' liability to this bank on acceptances outstanding........ 0
Intangible assets................................................... 4,905
Other assets........................................................ 100,799
Total assets........................................................ 5,919,206
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 4,034,633
Noninterest-bearing........................... 839,928
Interest-bearing.............................. 3,194,705
Federal funds purchased and Securities sold under agreements to
repurchase........................................................ 575,827
Demand notes issued to the U.S. Treasury........................... 61,290
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:
With original maturity of one year or less.................... 673,000
With original maturity of more than one year.................. 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 76,458
Total liabilities.................................................. 5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 385,018
Net unrealized holding gains (losses) on available-for-sale
securities........................................................ 7,362
Total equity capital............................................... 454,998
Total liabilities, limited-life preferred stock, and equity
capital........................................................... 5,919,206
</TABLE>
2
<PAGE>
Registration No.
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
-----
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
CENDANT CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
Delaware 22-3565321
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Preferred Securities of Cendant Capital III
(Title of the indenture securities)
===============================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
<PAGE>
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust
powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by
Section 321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of April, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Linda M. Barley By: /s/ David P. Fontello
----------------------------- -------------------------
Assistant Secretary Name: David P. Fontello
Title: Vice President
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST:- The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND:- The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is WILMINGTON TRUST
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120
Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places
of business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of money, or securities
for money, to buy gold and silver bullion and foreign coins, to buy and sell
bills of exchange, and generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate or interests
therein, and to guarantee the holder of such property, real or personal,
against any claim or claims, adverse to his interest therein, and to prepare
and give certificates of title for any lands or premises in the State of
Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt, collection,
custody, investment and management of funds, and the purchase, sale,
management and disposal of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases, conveyances,
mortgages, bonds and legal papers of every description, and to carry on the
business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds,
bonds and any and all other personal property of every sort and kind, from
executors, administrators, guardians, public officers, courts, receivers,
assignees, trustees, and from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering, issuing,
certificating, countersigning, transferring or underwriting the stock, bonds
or other obligations of any corporation, association, state or municipality,
and may receive and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act as Treasurer
of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other person or
persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract or
agreement, and the fidelity of persons holding places of responsibility or
trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons, corporations, court,
officer, or authority, in the State of Delaware or elsewhere; and whenever
this Corporation is so appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its capital
stock shall be taken and held as security for the performance of the duties
devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any of its
powers hereby given, or for the performance of any of the duties which it may
undertake or be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to receive a proper
compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of
capital stock, and other securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any foreign
government or country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences of
indebtedness and other property, any and all the rights, powers and privileges
of individual
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owners thereof, including the right to vote thereon; to invest and deal
in and with any of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and secure the same by
pledges or deeds of trust or mortgages of or upon the whole or any part
of the property held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall determine, and in
the promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal property of any
name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the
laws of the State of Delaware, it is hereby expressly provided that the said
Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent
as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so purchased;
to conduct in any lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit as
to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations
and businesses, without restriction to the same extent as natural persons
might or could do, to purchase or otherwise acquire, to hold, own, to
mortgage, sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State, District,
Territory or Colony of the United States, and in any foreign country or
place.
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(6) It is the intention that the objects, purposes and powers specified
and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00
per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors each
of said series to be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be cumulative, if
made cumulative. The voting powers and the preferences and relative,
participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to the
provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the
Board of Directors of the Corporation is hereby expressly granted authority to
fix by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights, and
the qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of Preferred
Stock which shall constitute such series, which number may be increased
(except where otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then outstanding) from time
to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which,
dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other class of
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stock and whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series
to convert the same into or exchange the same for, shares of any other
class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series
upon the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred
Stock which may, without limiting the generality of the foregoing include
the right, voting as a series or by itself or together with other series
of Preferred Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of section (b) of
this Article FOURTH), if any, shall have been met and after the Corporation
shall have complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article FOURTH), then and
not otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any, (fixed
in accordance with the provisions of section (b) of this Article FOURTH),
to be distributed to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common Stock held by
them respectively.
(3) Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each holder of
Common Stock shall have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or series, but
any such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of Preferred
Stock in relation to the relative powers, preferences and rights of each other
series of Preferred Stock shall, in each case, be as fixed from time to time
by the Board of Directors in the resolution or resolutions adopted pursuant to
authority granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required for
the issuance by the Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant to section
(b) of this Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the outstanding shares
of such series voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of Preferred
Stock may be issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock may,
without a class or series vote, be increased or decreased from time to time by
the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be conducted
and managed by a Board of Directors. The number of directors constituting the
entire Board shall be not less than five nor more than twenty-five as fixed
from time to time by vote of a majority of the whole Board, provided, however,
that the number of directors shall not be reduced so as to shorten the term of
any director at the time in office, and provided further, that the number of
directors constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal
in number as the then total number of directors constituting the whole Board
permits, with the term of office of one class expiring each year. At the
annual meeting of stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding annual
meeting, directors of the second class shall be elected to hold office for a
term expiring at the second succeeding annual meeting and directors of the
third class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a majority of
the directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director shall
have been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Charter or Act of
Incorporation or the By-Laws of the Corporation), any director or the entire
Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered or
mailed by first class United States mail, postage prepaid, to the Secretary of
the Corporation not less than 14 days nor more than 50 days prior to any
meeting of the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as prescribed,
to the Secretary of the Corporation not later than the close of the seventh
day following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of such nominee and
(iii) the number of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as may be
provided in the By-Laws as they may from time to time find necessary or proper.
SEVENTH:- The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved March
10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or in
the By-Laws of the Company, shall have and may exercise all of the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the Corporation to
be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable for the
payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a vote
of the majority of the entire Board. The stockholders may make, alter or
repeal any By-Law whether or not adopted by them, provided however, that any
such additional By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State of
Delaware at such places as may be from time to time designated by the Board,
and the Directors may keep the books of the Company outside of the State of
Delaware at such places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except
as otherwise expressly provided in sections (b) and (c) of this Article
FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10% of
the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two years
prior thereto was the beneficial owner, directly or indirectly, of not
less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of capital
stock of the Corporation which were at any time within two years prior
thereto beneficially owned by any Interested Stockholder, and such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the
right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote pursuant to
any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other
person with which such first mentioned person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned through
application of paragraph (3) above but shall not include any other Voting
Shares which may be issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given those
terms in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on December 31, 1981.
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(6)"Subsidiary" shall mean any corporation of which a majority of any class of
equity security (as defined in Rule 3a11-1 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Investment Stockholder set
forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine
for the purposes of this Article FIFTEENTH on the basis of information
known to them, (1) the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of another, (3)
whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any other
vote that may be required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least two-thirds of the
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) shall be required to amend, alter or repeal any provision of Articles
FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of
Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation
Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any person
who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time
or place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors
or the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and of
all the transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor
and such duties as may be prescribed by the officer in charge of the Audit
Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman
of the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in
connection with obtaining the consent of stockholders for any purpose, which
record date shall not be more than 60 nor less than 10 days proceeding the
date of any meeting of stockholders or the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect, or a date in
connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
however, that the payment of expenses incurred by a Director officer in his
capacity as a Director or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be ultimately determined
that the Director or officer is not entitled to be indemnified under this
Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: April 1, 1998 By: /s/ David P. Fontello
---------------------
Name: David P. Fontello
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------- -----------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1997.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 236,646
Interest-bearing balances...................................... 0
Held-to-maturity securities......................................... 331,880
Available-for-sale securities....................................... 1,258,661
Federal funds sold and securities purchased under agreements to
resell............................................................. 91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income....... 3,822,320
LESS: Allowance for loan and lease losses...... 59,373
LESS: Allocated transfer risk reserve.......... 0
Loans and leases, net of unearned income, allowance, and
reserve...................................................... 3,762,947
Assets held in trading accounts..................................... 0
Premises and fixed assets (including capitalized leases)............ 129,740
Other real estate owned............................................. 2,106
Investments in unconsolidated subsidiaries and associated companies. 22
Customers' liability to this bank on acceptances outstanding........ 0
Intangible assets................................................... 4,905
Other assets........................................................ 100,799
Total assets........................................................ 5,919,206
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 4,034,633
Noninterest-bearing........................... 839,928
Interest-bearing.............................. 3,194,705
Federal funds purchased and Securities sold under agreements to
repurchase........................................................ 575,827
Demand notes issued to the U.S. Treasury........................... 61,290
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:
With original maturity of one year or less.................... 673,000
With original maturity of more than one year.................. 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 76,458
Total liabilities.................................................. 5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 385,018
Net unrealized holding gains (losses) on available-for-sale
securities........................................................ 7,362
Total equity capital............................................... 454,998
Total liabilities, limited-life preferred stock, and equity
capital........................................................... 5,919,206
</TABLE>
2
<PAGE>
Registration No.
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
CENDANT CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 06-0918165
(State of incorporation) (I.R.S. employer identification no.)
9 Sylvan Way
Parsippany, New Jersey 07054
(Address of principal executive offices) (Zip Code)
Guarantees and backup undertakings of Cendant
Corporation in connection with Preferred Securities of Cendant Capital III
by Cendant Corporation
(Title of the indenture securities)
===============================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
<PAGE>
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust
powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by
Section 321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 1st day
of April, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Linda M. Barley By: /s/ David P. Fontello
------------------------------- ----------------------
Assistant Secretary Name: David P. Fontello
Title: Vice President
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate
the Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and
the name of which company was changed to "WILMINGTON TRUST COMPANY" by an
amendment filed in the Office of the Secretary of State on March 18, A.D.
1903, and the Charter or Act of Incorporation of which company has been from
time to time amended and changed by merger agreements pursuant to the
corporation law for state banks and trust companies of the State of Delaware,
does hereby alter and amend its Charter or Act of Incorporation so that the
same as so altered and amended shall in its entirety read as follows:
FIRST:- The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND:- The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington, County
of New Castle; the name of its resident agent is WILMINGTON TRUST
Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains and
operates branch offices in the City of Newark, New Castle County,
Delaware, the Town of Newport, New Castle County, Delaware, at
Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120
Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places
of business as may be authorized from time to time by the agency or
agencies of the government of the State of Delaware empowered to
confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation
are to do any or all of the things herein mentioned as fully and to
the same extent as natural persons might or could do and in any part
of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal
at pleasure, to hold, purchase, convey, mortgage or otherwise
deal in real and personal estate and property, and to appoint
such officers and agents as the business of the
<PAGE>
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of money, or securities
for money, to buy gold and silver bullion and foreign coins, to buy and sell
bills of exchange, and generally to use, exercise and enjoy all the powers,
rights, privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate or interests
therein, and to guarantee the holder of such property, real or personal,
against any claim or claims, adverse to his interest therein, and to prepare
and give certificates of title for any lands or premises in the State of
Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt, collection,
custody, investment and management of funds, and the purchase, sale,
management and disposal of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases, conveyances,
mortgages, bonds and legal papers of every description, and to carry on the
business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds,
bonds and any and all other personal property of every sort and kind, from
executors, administrators, guardians, public officers, courts, receivers,
assignees, trustees, and from all fiduciaries, and from all other persons and
individuals, and from all corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering, issuing,
certificating, countersigning, transferring or underwriting the stock, bonds
or other obligations of any corporation, association, state or municipality,
and may receive and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act as Treasurer
of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other person or
persons, corporation or corporations.
2
<PAGE>
(8) To guarantee the validity, performance or effect of any contract or
agreement, and the fidelity of persons holding places of responsibility or
trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons, corporation, or
corporations, or in like manner become surety upon any bond, recognizance,
obligation, judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court in the State of
Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons, corporations, court,
officer, or authority, in the State of Delaware or elsewhere; and whenever
this Corporation is so appointed by any person, corporation, court, officer or
authority such trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its capital
stock shall be taken and held as security for the performance of the duties
devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any of its
powers hereby given, or for the performance of any of the duties which it may
undertake or be called upon to perform, or for the assumption of any
responsibility the said Corporation may be entitled to receive a proper
compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures, shares of
capital stock, and other securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal corporation within and
without the State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any foreign
government or country; to receive, collect, receipt for, and dispose of
interest, dividends and income upon and from any of the bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property held and owned by it,
and to exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences of
indebtedness and other property, any and all the rights, powers and privileges
of individual
3
<PAGE>
owners thereof, including the right to vote thereon; to invest and deal
in and with any of the moneys of the Corporation upon such securities and
in such manner as it may think fit and proper, and from time to time to
vary or realize such investments; to issue bonds and secure the same by
pledges or deeds of trust or mortgages of or upon the whole or any part
of the property held or owned by the Corporation, and to sell and pledge
such bonds, as and when the Board of Directors shall determine, and in
the promotion of its said corporate business of investment and to the
extent authorized by law, to lease, purchase, hold, sell, assign,
transfer, pledge, mortgage and convey real and personal property of any
name and nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the
laws of the State of Delaware, it is hereby expressly provided that the said
Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent
as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so purchased;
to conduct in any lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit as
to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its operations
and businesses, without restriction to the same extent as natural persons
might or could do, to purchase or otherwise acquire, to hold, own, to
mortgage, sell, convey or otherwise dispose of, real and personal
property, of every class and description, in any State, District,
Territory or Colony of the United States, and in any foreign country or
place.
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(6) It is the intention that the objects, purposes and powers specified
and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00
per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors each
of said series to be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be cumulative, if
made cumulative. The voting powers and the preferences and relative,
participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to the
provisions of subparagraph 1 of Paragraph (c) of this Article FOURTH, the
Board of Directors of the Corporation is hereby expressly granted authority to
fix by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights, and
the qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of Preferred
Stock which shall constitute such series, which number may be increased
(except where otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then outstanding) from time
to time by like action of the Board of Directors;
(2) The rate and times at which, and the terms and conditions on which,
dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other class of
5
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stock and whether such dividends shall be cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series
to convert the same into or exchange the same for, shares of any other
class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series
upon the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred
Stock which may, without limiting the generality of the foregoing include
the right, voting as a series or by itself or together with other series
of Preferred Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of section (b) of
this Article FOURTH), if any, shall have been met and after the Corporation
shall have complied with all the requirements, if any, with respect to the
setting aside of sums as sinking funds or redemption or purchase accounts
(fixed in accordance with the provisions of section (b) of this Article
FOURTH), and subject further to any conditions which may be fixed in
accordance with the provisions of section (b) of this Article FOURTH), then and
not otherwise the holders of Common Stock shall be entitled to receive such
dividends as may be declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if any, (fixed
in accordance with the provisions of section (b) of this Article FOURTH),
to be distributed to the holders of Preferred Stock in the event of
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the holders of the Common
Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common Stock held by
them respectively.
(3) Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each holder of
Common Stock shall have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other securities
convertible into or exchangeable for stock of the Corporation of any class or
series, or carrying any right to purchase stock of any class or series, but
any such unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock, or
carrying any right to purchase stock, may be issued and disposed of pursuant
to resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may be
deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of Preferred
Stock in relation to the relative powers, preferences and rights of each other
series of Preferred Stock shall, in each case, be as fixed from time to time
by the Board of Directors in the resolution or resolutions adopted pursuant to
authority granted in section (b) of this Article FOURTH and the consent, by
class or series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required for
the issuance by the Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such other series shall
be fixed by the Board of Directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the resolution
or resolutions as to any series of Preferred Stock adopted pursuant to section
(b) of this Article FOURTH that the consent of the holders of a majority (or
such greater proportion as shall be therein fixed) of the outstanding shares
of such series voting thereon shall be required for the issuance of any or all
other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of Preferred
Stock may be issued from time to time as the Board of Directors of the
Corporation shall determine and on such terms and for such consideration as
shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock may,
without a class or series vote, be increased or decreased from time to time by
the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be conducted
and managed by a Board of Directors. The number of directors constituting the
entire Board shall be not less than five nor more than twenty-five as fixed
from time to time by vote of a majority of the whole Board, provided, however,
that the number of directors shall not be reduced so as to shorten the term of
any director at the time in office, and provided further, that the number of
directors constituting the whole Board shall be twenty-four until otherwise
fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly equal
in number as the then total number of directors constituting the whole Board
permits, with the term of office of one class expiring each year. At the
annual meeting of stockholders in 1982, directors of the first class shall be
elected to hold office for a term expiring at the next succeeding annual
meeting, directors of the second class shall be elected to hold office for a
term expiring at the second succeeding annual meeting and directors of the
third class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from any increase in the
directors, may be filled by the Board of Directors, acting by a majority of
the directors then in office, although less than a quorum, and any directors
so chosen shall hold office until the next annual election of directors. At
such election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director shall
have been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any incumbent
director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Charter or Act of
Incorporation or the By-Laws of the Corporation), any director or the entire
Board of Directors of the
8
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered or
mailed by first class United States mail, postage prepaid, to the Secretary of
the Corporation not less than 14 days nor more than 50 days prior to any
meeting of the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as prescribed,
to the Secretary of the Corporation not later than the close of the seventh
day following the day on which notice of the meeting was mailed to
stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of such nominee and
(iii) the number of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agent and servants as may be
provided in the By-Laws as they may from time to time find necessary or proper.
SEVENTH:- The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved March
10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
9
<PAGE>
NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or in
the By-Laws of the Company, shall have and may exercise all of the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the Corporation to
be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable for the
payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a vote
of the majority of the entire Board. The stockholders may make, alter or
repeal any By-Law whether or not adopted by them, provided however, that any
such additional By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State of
Delaware at such places as may be from time to time designated by the Board,
and the Directors may keep the books of the Company outside of the State of
Delaware at such places as may be from time to time designated by them.
FIFTEENTH: - (a) In addition to any affirmative vote required by law, and except
as otherwise expressly provided in sections (b) and (c) of this Article
FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall
be required notwithstanding the fact that no vote may be required, or that
some lesser percentage may be specified, by law or in any agreement with any
national securities exchange or otherwise.
(2) The term "business combination" as used in this Article
FIFTEENTH shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other provisions
of the Charter or Act of Incorporation of By-Laws if such
business combination has been approved by a majority of the
whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any such
transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10% of
the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two years
prior thereto was the beneficial owner, directly or indirectly, of not
less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of capital
stock of the Corporation which were at any time within two years prior
thereto beneficially owned by any Interested Stockholder, and such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i) the
right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote pursuant to
any agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or indirectly, by any other
person with which such first mentioned person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned through
application of paragraph (3) above but shall not include any other Voting
Shares which may be issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given those
terms in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on December 31, 1981.
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(6)"Subsidiary" shall mean any corporation of which a majority of any class of
equity security (as defined in Rule 3a11-1 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect in December
31, 1981) is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Investment Stockholder set
forth in paragraph (2) of this section (c), the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
(d) majority of the directors shall have the power and duty to determine
for the purposes of this Article FIFTEENTH on the basis of information
known to them, (1) the number of Voting Shares beneficially owned by any
person (2) whether a person is an Affiliate or Associate of another, (3)
whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in paragraph (3) of section (c), or
(4) whether the assets subject to any business combination or the
consideration received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed
by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any other
vote that may be required by law, this Charter or Act of Incorporation by the
By-Laws), the affirmative vote of the holders of at least two-thirds of the
outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) shall be required to amend, alter or repeal any provision of Articles
FIFTH, THIRTEENTH, FIFTEENTH or SIXTEENTH of this Charter or Act of
Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation
Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the Corporation
existing hereunder with respect to any act or omission occurring prior to
the time of such repeal or modification."
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EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the
third Thursday in April each year at the principal office at the Company or at
such other date, time, or place as may be designated by resolution by the
Board of Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given
by mailing to each stockholder at least ten (10) days before said meeting, at
his last known address, a written or printed notice fixing the time and place
of such meeting.
Section 4. A majority in the amount of the capital stock of the
Company issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time
to time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one
vote, either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors
shall be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72)
years shall be nominated for election to the Board of Directors of the
Company, provided, however, that this limitation shall not apply to any person
who was serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for
three years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed
and conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its
<PAGE>
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called
at any time by the Chairman of the Board of Directors or by the President, and
shall be called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of
any special meeting of the Board of Directors, and of any change in the time
or place of any regular meeting, stating the time and place of such meeting,
which shall be mailed not less than two days before the time of holding such
meeting.
Section 9. In the event of the death, resignation, removal, inability
to act, or disqualification of any director, the Board of Directors, although
less than a quorum, shall have the right to elect the successor who shall hold
office for the remainder of the full term of the class of directors in which
the vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its
election by the stockholders shall appoint an Executive Committee, a Trust
Committee, an Audit Committee and a Compensation Committee, and shall elect
from its own members a Chairman of the Board of Directors and a President who
may be the same person. The Board of Directors shall also elect at such
meeting a Secretary and a Treasurer, who may be the same person, may appoint
at any time such other committees and elect or appoint such other officers as
it may deem advisable. The Board of Directors may also elect at such meeting
one or more Associate Directors.
Section 11. The Board of Directors may at any time remove, with or
without cause, any member of any Committee appointed by it or any associate
director or officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more
than nine members who shall be selected by the Board of Directors from its own
members and who
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shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and
in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal
office of the Company or elsewhere in its discretion at such times to be
determined by a majority of its members, or at the call of the Chairman of the
Executive Committee or at the call of the Chairman of the Board of Directors.
The majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall
be kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the
Board of Directors from time to time make.
(F) In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Company by its directors and officers as contemplated by these By-Laws any
two available members of the Executive Committee as constituted immediately
prior to such disaster shall constitute a quorum of that Committee for the
full conduct and management of the affairs and business of the Company in
accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the
event of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing provisions of this
Section. This By-Law shall be subject to implementation by Resolutions of the
Board of Directors presently existing or hereafter passed from time to time
for that purpose, and any provisions of these By-Laws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementary Resolutions shall be
suspended during such a disaster period until it shall be determined by any
interim Executive Committee acting under this section that it shall be to the
advantage of the Company to resume the conduct and management of its affairs
and business under all of the other provisions of these By-Laws.
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Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority
of whom shall be members of the Board of Directors and who shall hold office
during the pleasure of the Board.
(B) The Trust Committee shall have general supervision over
the Trust Department and the investment of trust funds, in all matters,
however, being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined
by a majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members
who shall be selected by the Board of Directors from its own members, none of
whom shall be an officer of the Company, and shall hold office at the pleasure
of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Division in all matters however subject to the approval of the Board
of Directors; it shall consider all matters brought to its attention by the
officer in charge of the Audit Division, review all reports of examination of
the Company made by any governmental agency or such independent auditor
employed for that purpose, and make such recommendations to the Board of
Directors with respect thereto or with respect to any other matters pertaining
to auditing the Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at
any time by the Chairman of the Compensation Committee, the Chairman of the
Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected
by the Board of Directors as an associate director, to serve during the
pleasure of the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An
associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
such absence or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time
confer and direct. He shall also exercise such powers and perform such duties
as may from time to time be agreed upon between himself and the President of
the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the
Board of
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<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors
or the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining
to the office of the President conferred or imposed upon him by statute or
assigned to him by the Board of Directors in the absence of the Chairman of
the Board the President shall have the powers and duties of the Chairman of
the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings
and to recording the same in the minute books of the Company. In addition to
the other notice requirements of these By-Laws and as may be practicable under
the circumstances, all such notices shall be in writing and mailed well in
advance of the scheduled date of any other meeting. He shall have custody of
the corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and
responsible for all monies, funds and valuables of the Company and for the
keeping of proper records of the evidence of property or indebtedness and of
all the transactions of the Company. He shall have general supervision of the
expenditures of the Company and shall report to the Board of Directors at each
regular meeting of the condition of the Company, and perform such other duties
as may be assigned to him from time to time by the Board of Directors of the
Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
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<PAGE>
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor
and such duties as may be prescribed by the officer in charge of the Audit
Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman
of the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
Section 2. Certificate of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new
certificate or certificates shall be issued in lieu thereof. Duplicate
certificates of stock shall be issued only upon giving such security as may be
satisfactory to the Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix
in advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE>
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in
connection with obtaining the consent of stockholders for any purpose, which
record date shall not be more than 60 nor less than 10 days proceeding the
date of any meeting of stockholders or the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect, or a date in
connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the
following form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full
power and authority to enter into, make, sign, execute, acknowledge and/or
deliver and the Secretary or any Assistant Secretary shall have full power and
authority to attest and affix the corporate seal of the Company to any and all
deeds, conveyances, assignments, releases, contracts, agreements, bonds,
notes, mortgages and all other instruments incident to the business of this
Company or in acting as executor, administrator, guardian, trustee, agent or
in any other fiduciary or representative capacity by any and every method of
appointment or by whatever person, corporation, court officer or authority in
the State of Delaware, or elsewhere, without any specific authority,
ratification, approval or confirmation by the Board of Directors or the
Executive Committee, and any and all such instruments shall have the same
force and validity as though expressly authorized by the Board of Directors
and/or the Executive Committee.
8
<PAGE>
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors
who serve as members of committees, other than salaried employees of the
Company, shall be paid such reasonable honoraria or fees for services as
members of committees as the Board of Directors shall from time to time
determine and directors and associate directors may be employed by the Company
for such special services as the Board of Directors may from time to time
determine and shall be paid for such special services so performed reasonable
compensation as may be determined by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be
made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding") by
reason of the fact that he, or a person for whom he is the legal
representative, is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation
shall indemnify a person in connection with a proceeding initiated by such
person only if the proceeding was authorized by the Board of Directors of the
Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, provided,
however, that the payment of expenses incurred by a Director officer in his
capacity as a Director or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the Director
or officer to repay all amounts advanced if it should be ultimately determined
that the Director or officer is not entitled to be indemnified under this
Article or otherwise.
(C) If a claim for indemnification or payment of expenses,
under this Article X is not paid in full within ninety days after a written
claim therefor has been received by the Corporation the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In
any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses
9
<PAGE>
under applicable law.
(D) The rights conferred on any person by this Article X
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing provisions
of this Article X shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
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<PAGE>
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: April 1, 1998 By: /s/ David P. Fontello
---------------------
Name: David P. Fontello
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------- -----------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1997.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............ 236,646
Interest-bearing balances...................................... 0
Held-to-maturity securities......................................... 331,880
Available-for-sale securities....................................... 1,258,661
Federal funds sold and securities purchased under agreements to
resell............................................................. 91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income....... 3,822,320
LESS: Allowance for loan and lease losses...... 59,373
LESS: Allocated transfer risk reserve.......... 0
Loans and leases, net of unearned income, allowance, and
reserve...................................................... 3,762,947
Assets held in trading accounts..................................... 0
Premises and fixed assets (including capitalized leases)............ 129,740
Other real estate owned............................................. 2,106
Investments in unconsolidated subsidiaries and associated companies. 22
Customers' liability to this bank on acceptances outstanding........ 0
Intangible assets................................................... 4,905
Other assets........................................................ 100,799
Total assets........................................................ 5,919,206
CONTINUED ON NEXT PAGE
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................................ 4,034,633
Noninterest-bearing........................... 839,928
Interest-bearing.............................. 3,194,705
Federal funds purchased and Securities sold under agreements to
repurchase........................................................ 575,827
Demand notes issued to the U.S. Treasury........................... 61,290
Trading liabilities (from Schedule RC-D)........................... 0
Other borrowed money:
With original maturity of one year or less.................... 673,000
With original maturity of more than one year.................. 43,000
Bank's liability on acceptances executed and outstanding........... 0
Subordinated notes and debentures.................................. 0
Other liabilities (from Schedule RC-G)............................. 76,458
Total liabilities.................................................. 5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus...................... 0
Common Stock....................................................... 500
Surplus (exclude all surplus related to preferred stock)........... 62,118
Undivided profits and capital reserves............................. 385,018
Net unrealized holding gains (losses) on available-for-sale
securities........................................................ 7,362
Total equity capital............................................... 454,998
Total liabilities, limited-life preferred stock, and equity
capital........................................................... 5,919,206
</TABLE>
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