As filed with the Securities and Exchange Commission on April 21, 1999
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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OWENS CORNING OWENS CORNING
(Exact name of Registrant CAPITAL II
as specified in its charter) OWENS CORNING
CAPITAL III
(Exact name of Registrant as specified
in its certificate of trust)
Delaware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
34-4323452 31-6560375
31-6560379
(I.R.S Employer (I.R.S. Employer
Identification No.) Identification No.)
One Owens Corning Parkway c/o OWENS CORNING
Toledo, Ohio 43659 One Owens Corning Parkway
(419) 248-8000 Toledo, Ohio 43659
(419) 248-8000
(Address, including zip code, and (Address, including zip code, and
telephone number, including area telephone number, including area
code, of principal executive offices) code, of principal executive offices)
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Maura J. Abeln, Esq.
Senior Vice President, General Counsel and Secretary
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
(419) 248-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service of Registrant)
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Please send copies of all communications to:
Danielle Carbone, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Title of each class of Amount to Proposed Proposed maximum Amount of
securities to be registered be registered maximum aggregate registration fee
aggregate offering offering price(2)
price per unit(1)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of Owens Corning (2)................
- ----------------------------------------------------
Preferred Stock of Owens Corning, no par value......
- ----------------------------------------------------
Common Stock of Owens Corning, $.10 par value (3)(4)
- ----------------------------------------------------
Warrants of Owens Corning (5).......................
- ----------------------------------------------------
Stock Purchase Contracts of Owens Corning (6).......
- ----------------------------------------------------
Stock Purchase Units of Owens Corning (7)...........
- ----------------------------------------------------
Preferred Securities of Owens Corning Capital II....
- ----------------------------------------------------
Preferred Securities of Owens Corning Capital III...
- ----------------------------------------------------
Guarantees by Owens Corning with respect to
Preferred Securities of Owens Corning Capital II and
Owens Corning Capital III (8)....................... $450,000,000(9) 100% $450,000,000(9)(10) $125,100
- ----------------------------------------------------
Total...............................................
==================================================== =============== =================== ===================== =================
<FN>
(1) Estimated for the sole purpose of computing the registration fee pursuant to Rule 457(o).
(2) Also includes such indeterminate principal amount of Debt Securities issuable upon exercise of Warrants or upon conversion
of or exchange for any other securities registered hereunder.
(3) Also includes such indeterminate number of shares of Common Stock as may be issued upon exercise of Warrants or upon
conversion of or exchange for Preferred Stock that provide for conversion into or exchange for Common Stock.
(4) Includes preferred stock purchase rights. Prior to the occurrence of certain events, such rights will not be exercisable or
evidenced separately from the Common Stock.
(5) Warrants may be sold separately or with any of the other securities registered hereunder.
(6) Represents contracts to purchase Preferred Stock or Common Stock.
(7) Represents ownership of Stock Purchase Contracts and Debt Securities, Preferred Securities or debt obligations of third
parties, including U.S. Treasury securities.
(8) This Registration Statement is deemed to include the obligations of Owens Corning under the Junior Subordinated Deferrable
Interest Debentures, the related Subordinated Indenture, the Trust Agreements, the Preferred Securities, the Guarantees
and the Expense Agreements as described in the Registration Statement.
(9) Such amount represents the aggregate principal amount of Debt Securities and Junior Subordinated Deferrable Interest
Debentures issued at their principal amount, the aggregate issue price (rather than the principal amount) of any Debt
Securities and Junior Subordinated Deferrable Interest Debentures issued at an original issue discount, the aggregate
liquidation preference of any Preferred Stock, the aggregate amount used when computing the registration fee pursuant to
Rule 457(c) for any Common Stock, the aggregate issue price of any Warrants, the aggregate exercise price of any securities
issuable upon the exercise of Warrants and the initial public offering price of any Preferred Securities. Any securities
registered hereunder may be sold separately or as units with other securities registered hereunder.
</FN>
</TABLE>
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(10) No separate consideration will be received for the Common Stock, if any,
issuable upon conversion of or in exchange for Preferred Stock. No separate
consideration will be received for any Junior Subordinated Deferrable
Interest Debentures if issued to evidence a loan by Owens Corning Capital
II or Owens Corning Capital III, or for any related Guarantee or Expense
Agreement.
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective depending upon market
conditions and other factors.
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If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this Form are being 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: |_|
Pursuant to the provisions of Rule 429 under the Securities Act of 1933, the
Prospectus contained in this Registration Statement also relates to $50,000,000
of unsold Debt Securities of Owens Corning covered by the Registration Statement
on Form S-3 (Registration No. 333-47961) of Owens Corning that are being carried
forward in connection with this Registration Statement. Such Registration
Statement is accordingly amended to reflect the information contained herein. In
the event that any of such previously registered securities are offered prior to
the effective date of this Registration Statement, the amount of such securities
will not be included in any Prospectus hereunder. The amount of securities being
registered under this Registration Statement, together with the remaining
securities registered under Registration Statement No. 333-47961, represents the
maximum amount of securities which are expected to be offered for sale.
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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 becomes effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
Information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and we are not soliciting an offer to buy any securities in any
state where the offer or sale is not permitted.
Subject to Completion. Dated April , 1999.
PROSPECTUS
$500,000,000
OWENS CORNING
Debt Securities,
Preferred Stock, Common Stock, Warrants,
Stock Purchase Contracts, Stock Purchase Units and
Junior Subordinated Deferrable Interest Debentures
OWENS CORNING CAPITAL II
OWENS CORNING CAPITAL III
Preferred Securities
Fully and unconditionally guaranteed, as described herein, by
OWENS CORNING
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This prospectus provides you with a general description of the securities we
may offer. Each time we sell any of the securities described in this prospectus,
we will provide the specific terms of the securities in a supplement to this
prospectus.
You should read this prospectus and the relevant prospectus supplement
carefully before you invest in any of our securities listed above.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We may sell the securities to or through underwriters, through dealers or
agents or directly to purchasers. We will describe the plan of distribution for
any particular series of securities in the applicable prospectus supplement.
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The date of this prospectus is _____________, 1999.
<PAGE>
WHERE YOU CAN FIND ADDITIONAL INFORMATION
Owens Corning files annual, quarterly and special reports and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C. 20549
and in New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from the SEC's web site at
http://www.sec.gov. Our common stock is listed on the New York Stock Exchange
under the symbol "OWC" and information about us is also available at the New
York Stock Exchange.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents that are considered part of this prospectus. Later
information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 by Owens Corning (1) after the date of the
filing of this registration statement and prior to its effectiveness and (2)
until our offering of securities has been completed.
o Annual Report on Form 10-K for the year ended December 31, 1998;
o Report on Form 8-K filed on February 8, 1999 reporting the notice of
date of 1999 Annual Meeting of Stockholders; and
o Report on Form 8-K filed on April 15, 1999 reporting first quarter
results and update on National Settlement Program.
You may obtain a copy of these filings at no cost, by writing or telephoning
us at the following address: Owens Corning World Headquarters, Toledo, Ohio
43659, Attention: Secretary's Office (telephone: (419) 248-8000).
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. This prospectus is an
offer to sell or to buy only the securities referred to in this prospectus, and
only under circumstances and in jurisdictions where it is lawful to do so. The
information contained in this prospectus or any prospectus supplement is current
only as of the date on the front page of those documents. Also, you should not
assume that there has been no change in the affairs of Owens Corning since the
date of this prospectus or any applicable prospectus supplement.
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Owens Corning Capital II and Owens Corning Capital III (the "trusts") will
not be subject to the reporting requirements of the Exchange Act. If the trusts
issue preferred securities under this prospectus, we will seek an exemption from
the reporting requirements of the Exchange Act for the trusts and will propose
to include their summary financial information in a footnote to our consolidated
financial statements.
We do not believe that separate financial statements for the trusts are
valuable in this prospectus or in separate Exchange Act filings because:
o all of the voting securities of the trusts will be owned by Owens
Corning, a reporting company under the Exchange Act, and
o the trusts are special purpose entities with no operating history or
independent operations and they are not engaged, nor do they propose to
engage, in any activity other than purchasing our junior subordinated
debt securities and issuing preferred securities and common securities.
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OWENS CORNING
We are a world leader in providing consumer and industrial customers with
building materials systems and composites systems. The building materials are
used in residential remodeling and repair, commercial improvement, new
residential and commercial construction, and other related markets. Composite
materials are used in end-use markets such as building construction, automotive,
telecommunications, marine, aerospace, energy, appliance, packaging and
electronics. In 1998, our Building Materials segment accounted for 78% of our
total sales, and our Composite Materials segment accounted for 22% of total
sales.
Building Materials
Our Building Materials business segment sells a variety of building and home
improvement products in three major categories: (1) glass fiber, foam and
mineral wool insulation, (2) roofing materials, and (3) exterior products for
the home, such as vinyl and metal siding and accessories, vinyl windows and
patio doors, rainware (gutters and downspouts), cast stone building products and
housewrap. The Owens Corning name, our trademarked color PINK and licensed Pink
Panther(TM) icon and our FIBERGLAS(R) trademark enjoy strong brand recognition
with consumers in the building materials market.
Composite Materials
We are the world's leading producer of glass fiber materials used in
composites. Composites are fabricated material systems made up of two or more
components (e.g., plastic resin and glass fiber) used in various applications to
replace traditional materials, such as aluminum, wood and steel. The global
composites industry has expanded to include thousands of end-use applications.
The primary end-use markets that we serve are transportation, building
construction, electrical/electronics, consumer recreational and infrastructure.
In the construction market, the major end-use application for glass fiber is
asphalt roofing shingles.
Our principal executive offices are located at Owens Corning World
Headquarters, Toledo, Ohio 43659, and our telephone number is (419) 248-8000.
Unless the context indicates otherwise, references in this prospectus to "we" or
"Owens Corning" include Owens Corning and its consolidated subsidiaries.
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THE ISSUERS
Owens Corning Capital II and Owens Corning Capital III are Delaware
statutory business trusts sponsored by Owens Corning (each a "trust" and,
collectively, the "trusts"). We formed each trust by (1) executing a declaration
of trust on April 2, 1997, which was also executed by Wilmington Trust Company,
as Delaware Trustee and (2) filing a certificate of trust with the Delaware
Secretary of State on April 2, 1997. We will amend and restate each trust's
declaration of trust in substantially the form filed as an exhibit to this
registration statement and file it with the SEC as an exhibit hereto. Each
declaration of trust, as amended and restated, is referred to in this prospectus
as a "Declaration of Trust". We will qualify each Declaration of Trust as an
indenture under the Trust Indenture Act of 1939 ("TIA").
As presently set forth in their respective Declarations of Trust, each trust
exists for the exclusive purposes of:
o issuing and selling its common securities and preferred
securities;
o using the proceeds from the sale of the common securities and
the preferred securities to acquire junior subordinated
deferrable interest debentures issued by Owens Corning; and
o engaging in only those other activities necessary, convenient or
incidental to the activities described above.
Upon an offering of securities we may amend and restate the applicable
Declaration of Trust to provide that that trust exists for the purpose of
acquiring debt securities issued by Owens Corning other than, or in addition to,
junior subordinated deferrable interest debentures. Such other debt securities,
if any, will be described in a prospectus supplement and may also include debt
securities that are senior or senior subordinated.
Accordingly, unless otherwise provided in an amended and restated Declaration of
Trust, the sole assets of each trust will be the junior subordinated deferrable
interest debentures and the corresponding payments made by Owens Corning under
the junior subordinated deferrable interest debentures. In addition, we have
entered into an expense agreement with each trust. Under each agreement, we will
reimburse the respective trust for any expenses incurred by the trust in
connection with the offering of its preferred securities. For a description of
these expense agreements, see "Description of Guarantees--Expense Agreements".
We will own all of the common securities of each trust. The common
securities of each trust will rank equally with the preferred securities of the
trust and payments on the common and
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preferred securities will be made on a pro rata basis, except upon the
occurrence and continuance of certain events of default under the applicable
Declaration of Trust, as described in this prospectus under "Description of the
Preferred Securities--Priority Over Common Securities". We will acquire common
securities in an aggregate liquidation amount equal to not less than 3% of the
total capital of each trust.
Unless otherwise specified in the applicable prospectus supplement, each
trust has a term of approximately 55 years but may terminate earlier as provided
in the applicable Declaration of Trust. Each trust's business is conducted by
its trustees, who are appointed by us as holder of the trust's common
securities. Wilmington Trust Company is the property trustee ("Property
Trustee") and Delaware Trustee ("Delaware Trustee") for each trust. Each trust
also has two individual trustees (the "Administrative Trustees"), who are
employees, officers or affiliates of Owens Corning. The Property Trustee, the
Delaware Trustee and the Administrative Trustees are collectively referred to in
this prospectus as the "Issuer Trustees". Wilmington Trust Company, as Property
Trustee, will act as sole indenture trustee under each Declaration of Trust for
purposes of compliance with the TIA. Wilmington Trust Company will also act as
trustee under each guarantee and the Subordinated Indenture.
The holder of a trust's common securities, or, upon the occurrence and
continuation of an event of default with respect to the junior subordinated
deferrable interest debentures held by a trust, the holders of a majority of the
liquidation preference of preferred securities of the trust, will be entitled to
appoint, remove or replace the Property Trustee and/or the Delaware Trustee of
the relevant trust. However, only the holder of common securities of a trust can
appoint, remove or replace the Administrative Trustees of the relevant trust.
The duties and obligations of each Issuer Trustee are governed by the applicable
Declaration of Trust. We will pay all ongoing costs, expenses and liabilities of
each trust. The principal executive office of each trust is located at Owens
Corning World Headquarters, Toledo, Ohio 43659, and the telephone number is
(419) 248-8000.
USE OF PROCEEDS
Except as may be otherwise described in a prospectus supplement, the net
proceeds from the sale of the securities under this prospectus will be added to
our general funds and will be used for working capital and other general
corporate purposes including, without limitation, capital expenditures,
investments in or loans to subsidiaries, repurchases or redemptions of our
outstanding debt securities or other reductions of our outstanding borrowings,
possible future business acquisitions, the satisfaction of other obligations or
for any other purposes as may be specified in the applicable prospectus
supplement.
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PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell in one or more offerings up to a total dollar amount of $50 million of
unsecured debt securities plus any combination of the following securities up to
a total dollar amount of $450 million (or the equivalent of such amounts if any
of the securities are denominated in a currency other than U.S. dollars): (1)
unsecured debt securities ("Debt Securities"), (2) preferred stock with no par
value ("Preferred Stock"), (3) common stock, $0.10 par value per share ("Common
Stock"), (4) warrants to purchase our securities, as designated by us at the
time of such offering ("Warrants"), (5) stock purchase contracts to purchase
Preferred Stock or Common Stock ("Stock Purchase Contracts"), (6) stock purchase
units, each representing ownership of a Stock Purchase Contract and Debt
Securities, preferred securities of a trust ("Preferred Securities") or debt
obligations of third parties, including U.S. Treasury securities, securing the
holder's obligation to purchase Preferred Stock or Common Stock under a Stock
Purchase Contract (the "Stock Purchase Units") and (7) junior subordinated
deferrable interest debentures (the "Junior Subordinated Debentures"). In
addition, each of the trusts may also separately offer, under this shelf
registration statement, their preferred securities, representing preferred
undivided beneficial interests in the assets of the respective trust, which
securities would be part of the $500 million aggregate amount of securities
registered under this shelf registration statement.
We refer to the Debt Securities, the Preferred Stock, the Common Stock, the
Warrants, the Stock Purchase Contracts, the Stock Purchase Units, the Junior
Subordinated Debentures and the preferred securities as the "Securities".
PROSPECTUS SUPPLEMENT
This prospectus provides you with a general description of each of the
Securities. Each time we or a trust sells Securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add to, update or change
information contained in this prospectus and, accordingly, to the extent
inconsistent, such information shall be superseded by the information in the
prospectus supplement. You should read both this prospectus and any prospectus
supplement together with additional information described under the heading
"Where You Can Find Additional Information" on page __ of this prospectus.
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BOOK-ENTRY SECURITIES
Legal Ownership
"Street Name" and Other Indirect Holders
In general, we will not recognize investors who hold Securities in accounts
at banks or brokers as the legal holders of Securities. This is called holding
in "street name". Instead, we will recognize only the bank or broker or the
financial institution that the investor uses to hold its Securities and in whose
name the Securities are registered. These intermediary banks, brokers and other
financial institutions pass along distributions, dividends, principal, interest
and other payments on the Securities pursuant to either their customer
agreements or legal requirements. If you hold your Securities in "street name",
you should ask your institution:
o How does it handle Securities payments and notices?
o Does it impose fees or charges?
o How would it handle voting if ever required?
o Whether and how you can instruct it to send you Securities registered
in your own name so you can be a registered holder as described below?
o How would it pursue rights under the Securities if there were a
default or other event triggering the need for holders to act to
protect their interests?
Registered Holders
We, and any third parties employed by us or acting on your behalf (such as
trustees, depositories and transfer agents), are obligated only to persons who
are registered as holders of Securities. As noted above, we do not have
obligations to you if you hold in "street name" or other indirect means, either
because you choose to hold Securities in that manner or because the Securities
are issued in the form of Global Securities as described below. For example,
once we make a payment to the registered holder, we have no further
responsibility for the payment even if that holder is legally required to pass
the payment to you as a "street name" customer but does not do so.
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What is a Global Security?
A Global Security is a special type of Security held indirectly by
investors. If we issue Securities in the form of a Global Security, the ultimate
beneficial owners can only be indirect holders. We do this by requiring that the
Global Security be registered in the name of a financial institution we select
and by requiring that the Securities included in the Global Security not be
transferred to the name of any other direct holder unless the special
circumstances described below occur. The financial institution that acts as the
sole direct holder of the Global Security is called the "Depositary". Any person
wishing to own a Security issued in the form of a Global Security must do so
indirectly by virtue of an account with a broker, bank or other financial
institution that in turn has an account with the Depositary (a "Participant").
The prospectus supplement will indicate whether your series of Securities will
be issued only in the form of Global Securities.
Special Investor Considerations for Global Securities. As an indirect
holder, your rights relating to a Global Security will be governed by the
account rules of your financial institution and of the Depositary, as well as
general laws relating to securities transfers. We would not recognize you as a
registered holder of Securities and would deal only with the Depositary that
holds the Global Security.
You should be aware that if Securities are issued only in the form of Global
Securities:
o You cannot get Securities registered in your own name.
o You cannot receive physical certificates for your interest in the
Securities.
o You will be a "street name" holder and must look to your own bank or
broker for payments on the Securities and protection of your legal
rights relating to the Securities. See "'Street Name' and Other
Indirect Holders".
o You may not be able to sell interests in the Securities to some
insurance companies and other institutions that are required by law to
hold their Securities in the form of physical certificates.
o The Depositary's policies will govern payments, transfers, exchanges
and other matters relating to your interest in the Global Security.
Neither we nor anyone other than the Depositary have any
responsibility for any aspect of the Depositary's actions or for its
records of ownership interests in the Global Security. We also do not
supervise the Depositary in any way.
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Special Situations when Global Security will be Terminated. In a few special
situations, the Global Security will terminate and interests in it will be
exchanged for physical certificates representing the Securities. After that
exchange, the choice of whether to hold Securities directly or in "street name"
will be up to you. You must consult your bank or broker to find out how to have
your interests in Securities transferred to your name, so that you will be the
registered holder. The rights of "street name" investors and registered holders
in the Securities have been previously described in the subsections entitled
"'Street Name' and Other Indirect Holders" and "Registered Holders".
The special situations for termination of a Global Security are:
o when the Depositary notifies us that it is unwilling, unable or no
longer qualified to continue as Depositary;
o when we elect to terminate the Global Security; or
o when an event of default on the Securities has occurred and has not
been cured.
The prospectus supplement may also list additional situations for terminating a
Global Security that would apply to the particular series of Securities covered
by the prospectus supplement. When a Global Security terminates, only the
depositary is responsible for selecting the institutions that will be the
initial registered holders.
DESCRIPTION OF DEBT SECURITIES
We will issue the Debt Securities in one or more distinct series. This
section summarizes terms of the Debt Securities that are common to all series.
Most of the financial terms and other specific terms of any series of Debt
Securities that we offer will be described in a prospectus supplement to be
attached to the front of this prospectus. Since the terms of specific Debt
Securities may differ from the general information we have provided below, you
should rely on information in the prospectus supplement rather than different
information below.
As required by Federal law for all bonds and notes of companies that are
publicly offered, the Debt Securities are governed by a document called an
indenture. An indenture is a contract between us and a financial institution
acting as trustee on your behalf. The trustee has two main roles. First, the
trustee can enforce your rights against us if we default on our obligations
under the Indenture. There are some limitations on the extent to which the
trustee acts on your behalf, described below under "Events of Default--Remedies
if an Event of Default Occurs". Second, the trustee performs certain
administrative duties for us.
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Debt Securities will be issued under an indenture dated as of May 5, 1997,
as supplemented from time to time (the "Indenture"), between Owens Corning and
The Bank of New York, as trustee (the "Trustee"). The Indenture contains the
full legal text of the matters described in this section. The Indenture is
included as an exhibit to the registration statement that we have filed with the
SEC. See "Where You Can Find More Information" on page 2 for information on how
to obtain a copy of the Indenture. The Indenture is subject to and governed by
the TIA.
Because this section is a summary, it does not describe every aspect of the
Debt Securities. This summary is subject to and qualified in its entirety by
reference to all the provisions of the Indenture, including definitions of
certain terms used in the Indenture. For example, in this section we use
capitalized words to signify terms that have been specifically defined in the
Indenture. Some of the definitions are repeated in this prospectus, but for the
rest you will need to read the Indenture. We also include references in
parentheses to certain sections of the Indenture or TIA. Whenever we refer to
particular sections or defined terms of the Indenture in this prospectus or in
the prospectus supplement, such sections or defined terms are incorporated by
reference in this prospectus or in the prospectus supplement.
Terms of the Debt Securities
The Debt Securities will be unsecured and unsubordinated obligations of
Owens Corning and will rank equally with all of our other unsecured and
unsubordinated indebtedness.
The Indenture provides that any Debt Securities proposed to be sold pursuant
to this prospectus and any prospectus supplement ("Offered Debt Securities") and
any Debt Securities issuable upon the exercise of Warrants or upon conversion or
exchange of other Securities we may offer ("Underlying Debt Securities"), as
well as other unsecured Debt Securities of Owens Corning, may be issued under
the Indenture in one or more series.
With respect to the Offered Debt Securities and any Underlying Debt
Securities, you should read the prospectus supplement for the following terms:
(1) The title of the Debt Securities.
(2) Any limit on the total principal amount of Debt Securities of the
series.
(3) The Person or entity to whom any interest on the Debt Securities
will be payable if other than the person or entity in whose name the Debt
Security is registered.
(4) The date or dates (or how such date or dates will be determined)
on which the principal and any premium on the Debt Securities will be
payable.
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(5) The rate or rates at which the Debt Securities will bear interest,
if any, or how such rate or rates will be determined, the interest payment
dates and any record dates for the payment of interest.
(6) If not the principal amount of the Debt Securities, the portion of
the principal amount payable upon acceleration of the maturity of the Debt
Securities or how this portion will be determined.
(7) The place or places where the principal of and any premium and
interest on the Debt Securities will be payable.
(8) Any optional redemption provisions.
(9) Any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities.
(10) The form of the Debt Securities, including whether the Debt
Securities are to be issuable as permanent or temporary Global Securities.
(11) If other than denominations of $1,000, the denominations in which
the Debt Securities will be issued.
(12) If other than U.S. dollars, the currency, currencies or currency
units in which payment of the principal of and any premium and interest on
the Debt Securities will be payable.
(13) Whether the amount of payments of principal of or any premium or
interest on the Debt Securities will be determined with reference to an
index, formula or other method and how such amounts will be determined.
(14) The applicability of the provisions of Article Thirteen of the
Indenture described under "Defeasance and Covenant Defeasance".
(15) Any other terms of the Debt Securities. (Section 301)
The Indenture will not limit the amount of Debt Securities that may be
issued as authorized from time to time by Owens Corning. Securities issued under
the Indenture, when a single Trustee is acting for all debt securities issued
under the Indenture, are referred to as the "Indenture Securities". The
Indenture also provides that there may be more than one Trustee under the
Indenture, each with respect to one or more different series of Indenture
Securities.
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See "--Resignation of Trustee" on page [13]. At a time when two or more Trustees
are acting under the Indenture, each with respect to only certain series, the
term "Indenture Securities" means the one or more series of Debt Securities with
respect to which each respective Trustee is acting. In the event that there is
more than one Trustee under the Indenture, the powers and trust obligations of
each Trustee described in this prospectus will extend only to the one or more
series of Indenture Securities for which it is Trustee. If two or more Trustees
are acting under the Indenture, then the Indenture Securities for which each
Trustee is acting would be treated as if issued under separate indentures.
The Indenture does not contain any provisions that give you protection in
the event we issue a large amount of debt or we are acquired by another entity.
You should carefully review the prospectus supplement for information with
respect to any deletions from, modifications of or additions to the events of
default or covenants of Owens Corning that are described below, including any
addition of a covenant or other provision providing event risk or similar
protection.
We have the ability to issue Indenture Securities with terms different from
those of Indenture Securities previously issued and, without the consent of the
holders of the Indenture Securities, to reopen a previous issue of a series of
Indenture Securities and issue additional Indenture Securities of that series,
unless the reopening was restricted when the series was created.
(Section 301)
Conversion and Exchange
If any Debt Securities are convertible into or exchangeable for other
securities, the prospectus supplement will explain terms and conditions of such
conversion or exchange, including the conversion price or exchange ratio (or the
calculation method), the conversion or exchange period (or how such period will
be determined), if conversion or exchange will be mandatory or at your option or
our option, provisions for adjustment of the conversion price or the exchange
ratio and provisions affecting conversion or exchange in the event of the
redemption of the Debt Securities. These terms may also include provisions under
which the number or amount of other securities to be received by the holders of
the Debt Securities upon conversion or exchange would be calculated according to
the market price of such other securities as of a time stated in the prospectus
supplement.
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Additional Mechanics
Form, Exchange and Transfer
Any Debt Securities will be issuable:
o as registered certificated securities without coupons (Section 302),
o unless otherwise specified in a prospectus supplement in denominations
that are multiples of $1,000 (Section 302), and
o in global form. See "Book-Entry Securities".
You may have your registered Debt Securities separated into more registered
Debt Securities of smaller denominations or combined into fewer registered Debt
Securities of larger denominations, as long as the total principal amount is not
changed.
You may transfer registered Debt Securities of a series and you may exchange
registered Debt Securities of a series at the office of the Trustee. The Trustee
will act as Owens Corning's agent for registering certificated Debt Securities
in the names of holders and transferring certificated Debt Securities. For this
purpose, the Trustee will keep a register in which we will provide for the
registration and transfer of Debt Securities. We may change this appointment to
another entity or perform the function ourselves. The entity performing the role
of maintaining the list of registered holders is called the "Security
Registrar". The Security Registrar also will perform transfers.
You will not be required to pay a service charge to transfer or exchange
Debt Securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer (Section 305). The
transfer or exchange will only be made if the Security Registrar is satisfied
with your proof of ownership.
If we have designated additional transfer agents, they will be named in the
accompanying prospectus supplement. We may cancel the designation of any
particular transfer agent or approve a change in the office through which any
transfer agent acts.
If the Debt Securities are redeemable and we redeem less than all of the
Debt Securities of a particular series, we may block the transfer or exchange of
Debt Securities during the period beginning 15 days before the day we mail the
notice of redemption and ending on the day of that mailing. We may also refuse
to register transfers or exchanges of Debt Securities selected for
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redemption, except that we will continue to permit transfers and exchanges of
the unredeemed portion of any Debt Security being partially redeemed.
If the Offered Debt Securities are redeemable, the procedures for redemption
will be described in the accompanying prospectus supplement.
Payment and Paying Agents
We will pay interest to you, if you are listed in the Trustee's records as
the owner of your Debt Security at the close of business on a particular day in
advance of each due date for interest on your Debt Security even if you no
longer own the Debt Security, on the interest due date. That particular day,
usually about two weeks in advance of the interest due date, is called the
"Regular Record Date" and is defined in the prospectus supplement, while persons
who are listed in the Trustee's records as the owners of Debt Securities at the
close of business on a particular day are referred to as "Holders". Persons
buying and selling Debt Securities must agree among themselves the appropriate
purchase price by taking into account that we will pay all the interest for an
interest period to the Holders on the Record Date. The most common manner is to
adjust the sales price of the Debt Securities to prorate interest fairly between
buyer and seller based on their respective ownership periods within the
particular interest period. This prorated interest amount is called "accrued
interest".
We will deposit interest, principal and any other money due on the Debt
Securities with the paying agent specified in the prospectus supplement. The
paying agent will pay the principal of or any premium or interest on the Debt
Securities on our behalf. If the paying agent is not the Trustee, we will cause
the paying agent to agree in writing that it will (1) comply with applicable
provisions of the Trust Indenture Act, and (2) if the Trustee requests in
writing, upon any continuing default in any payment on the Debt Securities of
your series, pay to the Trustee all sums held by it for payment of that series.
Events of Default
You will have special rights if an Event of Default occurs in respect of the
Debt Securities of your series and is not cured, as described later in this
subsection.
What Is An Event of Default?
The term "Event of Default" in respect of the Debt Securities of any series
means any one of the following events:
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o We do not pay the principal of or any premium on a Debt Security of
the series on its due date.
o We do not pay interest on a Debt Security of the series within 30
days of its due date.
o We do not deposit any sinking fund payment in respect of Debt
Securities of the series on its due date.
o We remain in breach of a covenant or warranty in respect of Debt
Securities of the series for 60 days after we receive a written
notice of default stating we are in breach. The notice must be sent by
either the Trustee or Holders of 25% of the principal amount of Debt
Securities of the series.
o An event of default occurs with respect to any other indebtedness of
Owens Corning or any of its Restricted Subsidiaries resulting in more
than $25,000,000 of such indebtedness being accelerated and declared
due and payable prior to the date it would otherwise be due and
payable and such event of default continues for 30 days after we
receive a written notice of default. The notice must be sent by either
the Trustee or Holders of 25% of the principal amount of outstanding
Debt Securities.
o We file for bankruptcy or certain other events of bankruptcy,
insolvency or reorganization occur.
o Any other Event of Default described in the prospectus supplement
occurs in respect of Debt Securities of the series. (Section 501)
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under the Indenture.
Remedies If an Event of Default Occurs.
If an Event of Default has occurred and has not been cured, the Trustee or
the Holders of 25% in principal amount of the Debt Securities of the affected
series may declare the entire principal amount of all the Debt Securities of
that series to be due and immediately payable. This is called a declaration of
acceleration of maturity. Under certain circumstances, a declaration of
acceleration of maturity may be canceled by the Holders of at least a majority
in principal amount of the Debt Securities of the affected series. (Section 502)
Except in cases of default, where the Trustee has some special duties, the
Trustee is not required to take any action under the Indenture at the request of
any Holders unless the Holders
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offer the Trustee reasonable protection from expenses and liability (called an
"indemnity"). (Section 603) If reasonable indemnity is offered, the Holders of a
majority in principal amount of the outstanding Debt Securities of the relevant
series may direct the time, method and place of conducting any lawsuit or other
formal legal action seeking any remedy available to the Trustee. (Sections 507,
512) The Trustee may refuse to follow those directions in certain circumstances.
No delay or omission in exercising any right or remedy will be treated as a
waiver of such right, remedy or Event of Default.
Before you are allowed to bypass the Trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your rights or protect
your interests relating to the Debt Securities, the following must occur:
o You must give the Trustee written notice that an Event of Default has
occurred and remains uncured.
o The Holders of 25% in principal amount of all outstanding Debt
Securities of the relevant series must make a written request that the
Trustee take action because of the default and must offer reasonable
indemnity to the Trustee against the cost and other liabilities of
taking that action.
o The Trustee must not have instituted suit for 60 days after receipt of
the above notice and offer of indemnity.
o The Holders of a majority in principal amount of the Debt Securities
must not have given the Trustee a direction inconsistent with the above
notice during the 60-day period.
(Section 507)
However, notwithstanding the foregoing limitations, you are entitled to
bring a lawsuit for the payment of money due on your Debt Securities at any time
on or after the due date. (Section 508)
Holders of a majority in principal amount of the Debt Securities of the
affected series may waive any past defaults, except a default (1) in payment of
principal or any premium or interest or (2) in respect of a covenant that cannot
be modified or amended without the consent of each Holder.
Each year, we will furnish to the Trustee a written statement of certain of
our officers certifying that to their knowledge we are in compliance with the
terms of the Indenture and the Debt Securities, or else specifying any default.
(Section 1004)
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Merger or Consolidation
Under the terms of the Indenture, we are generally permitted to consolidate
or merge with another firm. We are also permitted to sell all or substantially
all of our assets to another firm. However, we may not take any of these actions
unless all the following conditions are met:
o We are the surviving company or where we merge out of existence or
sell our assets, the other firm must be a U.S. company and must agree
to be legally responsible for the Debt Securities under a supplemental
indenture. (Section 801)
o The merger or sale of assets must not cause a default on the Debt
Securities and we must not already be in default (unless the merger or
sale would cure the default). For purposes of this no-default test, a
default would include an Event of Default that has occurred and not
been cured, as described on page __ under "--Events of Default--What
is an Event of Default?" A default for this purpose would also include
any event that would be an Event of Default if the requirements for
giving us default notice or our default having to exist for a specific
period of time were disregarded. (Section 801)
o No merger or sale of assets may be made if it would cause any U.S.
property or assets of Owens Corning or of the surviving entity, or the
stock or Debt of any subsidiary, to become subject to any mortgage,
lien or other encumbrance. This condition does not apply if such
mortgage, lien or other encumbrance could be created pursuant to
Section 1008 of the Indenture (see "--Restrictive Covenants Applicable
to Owens Corning--Limitation on Liens" below) without equally and
ratably securing the Indenture Securities or if such Indenture
Securities are secured equally and ratably with or prior to the debt
secured by such mortgage, lien or other encumbrance. (Section 801)
o We deliver certain certificates and documents to the Trustee if
required by the Indenture. (Section 803)
o We satisfy any other requirements specified in the prospectus
supplement.
Modification or Waiver
Changes Not Requiring Consent.
There are changes that can be made to your Debt Securities without your
specific approval. These changes are:
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o to evidence the succession of another company to Owens Corning's
obligations under the Debt Securities and Indenture;
o to add covenants under the Indenture for the benefit of the Holders of
any series of Debt Securities or to surrender a power given to Owens
Corning by the Indenture;
o to add any additional Events of Default;
o to add or change any provisions necessary to facilitate the issuance
of Debt Securities in bearer form or as book-entry securities;
o to add or change any provisions affecting only Debt Securities not yet
issued;
o to secure the Debt Securities;
o to establish the form or terms of any Debt Securities of any series;
o to evidence or provide for successor Trustees or to add or change any
provisions necessary to provide for the appointment of separate
Trustees for specific series of Debt Securities;
o to permit payment in respect of Debt Securities in bearer form to the
extent permitted by law; or
o to cure any ambiguity or to correct or supplement any mistaken or
inconsistent provisions or any other provisions with respect to which
questions have arisen under the Indenture; provided that any such
action (other than with respect to a mistaken provision) does not
adversely affect the interests of the Holders of any series of Debt
Securities in any material respect. (Section 901)
Changes Requiring a Majority Vote.
The Holders of at least a majority in aggregate principal amount of
outstanding Debt Securities of any series may, on behalf of all Holders of
such series:
o waive compliance by Owens Corning with certain restrictive provisions
of the Indenture (Section 1010) or
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o waive any past default under the Indenture, except a default in the
payment of principal, premium or interest or in respect of a covenant
or provision of the Indenture that cannot be modified or amended
without the consent of the Holders of each affected outstanding Debt
Security of such series. (Section 513)
Unless otherwise provided below, with the consent of the Holders of
outstanding Debt Securities owning a majority of the principal amount of the
particular series affected, a supplemental indenture may be entered into
changing or eliminating any provisions in the Indenture and the outstanding
Debt Securities. (Section 902)
Changes Requiring Vote of All Holders
However, all Holders of each Debt Security affected must consent to the
following changes:
o any change in the stated maturity of the principal or any installment
of principal or interest on any Debt Security;
o a reduction in the principal amount of, or premium, if any, or
interest on any Debt Security (including the amount payable for an
original issue discount Debt Security upon acceleration of maturity);
o a change in the place or currency of payment of principal, or premium,
if any, or interest on any Debt Security;
o an impairment of the right of any Holder to bring an action for
enforcement of any payment on a Debt Security on or after the stated
maturity (or on or after a redemption date); or
o a reduction in the percentage in principal amount of outstanding Debt
Securities of any series, the consent of whose Holders is required to
modify or amend the Indenture, to waive compliance with certain
provisions of the Indenture or to waive an Event of Default. (Section
902)
Further Details Concerning Voting
When taking a vote, we will use the following rules to decide how much
principal amount to attribute to a Debt Security:
o For original issue discount securities, we will use the principal
amount that would be due and payable on the voting date if the
maturity of the Debt Securities were accelerated to that date because
of a default.
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o For Debt Securities whose principal amount is not known (for example,
because it is based on an index), we will use a special rule for that
Debt Security described in the prospectus supplement.
o For Debt Securities denominated in one or more foreign currencies or
currency units, we will use the U.S. dollar equivalent.
Debt Securities will not be considered outstanding, and therefore not
eligible to vote, if we have deposited or set aside in trust money for their
payment or redemption. Debt Securities will also not be eligible to vote if they
have been fully defeased as described later under "--Defeasance--Full
Defeasance".
We will generally be entitled to set any day as a record date for the
purpose of determining the Holders of outstanding Debt Securities that are
entitled to vote or take other action under the Indenture. If we set a record
date for a vote or other action to be taken by Holders of a particular series,
that vote or action may be taken only by persons who are Holders of outstanding
Debt Securities of that series on the record date.
Defeasance
The following discussion of full defeasance and covenant defeasance will be
applicable to your series of Debt Securities only if we choose to have them
apply to that series. In that event, we will specify the choice in the
prospectus supplement.
Full Defeasance.
If there is a change in federal tax law, as described below, we can legally
release ourselves from all payment and other obligations on the Debt Securities
(called "full defeasance") if we put in place the following other arrangements
for you to be repaid:
o We must deposit in trust for your benefit and the benefit of all other
direct Holders of the Debt Securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the
Debt Securities on their various due dates.
o We must deliver to the Trustee a legal opinion confirming that there
has been a change in current federal tax law or an IRS ruling that
lets us make the above deposit without causing you to be taxed on the
Debt Securities any differently than if we did not make the above
deposit. Under current federal tax law, the deposit and our legal
release from the Debt Securities would be treated as though we paid
you your share of the cash and notes
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or bonds at the time such cash and notes or bonds are deposited in
trust in exchange for your Debt Securities and you would recognize
gain or loss on the Debt Securities at the time of the deposit.
(Sections 1302 and 1304)
If we ever did accomplish full defeasance, as described above, you would have to
rely solely on the trust deposit for repayment of the Debt Securities. You could
not look to us for repayment in the unlikely event of any shortfall. Conversely,
the trust deposit would most likely be protected from claims of our lenders and
other creditors if we ever become bankrupt or insolvent.
Covenant Defeasance
Under current federal tax law, we can make the same type of deposit
described above and be released from some of the restrictive covenants in the
Indenture. This is called "covenant defeasance". In that event, you would lose
the protection of those restrictive covenants but would gain the protection of
having money and U.S. government debt securities set aside in trust to repay the
Debt Securities. In order to achieve covenant defeasance, we must do the
following:
o We must deposit in trust for your benefit and the benefit of all other
direct Holders of the Debt Securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the
Debt Securities on their various due dates.
o We must deliver to the Trustee a legal opinion of our counsel
confirming that under current federal income tax law we may make the
above deposit without causing you to be taxed on the Debt Securities
any differently than if we did not make the deposit and just repaid
the Debt Securities ourselves. (Sections 1303 and 1304)
If we accomplish covenant defeasance, you can still look to us for repayment
of the Debt Securities if there were a shortfall in the trust deposit or the
Trustee is prevented from making payment. In fact, if one of the remaining
Events of Default occurred (such as our bankruptcy) and the Debt Securities
become immediately due and payable, there may be such a shortfall. Depending on
the event causing the default, you may not be able to obtain payment of the
shortfall.
Book-Entry Debt Securities
The Debt Securities will be issued in the form of one or more Global
Securities. See "Book-Entry Securities" for additional information about your
limited rights as the beneficial owner of a Global Security.
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Resignation of Trustee
Each Trustee may resign or be removed with respect to one or more series of
Indenture Securities, and a successor Trustee may be appointed to act with
respect to such series. In the event that two or more persons are acting as
Trustee with respect to different series of Indenture Securities under the
Indenture, each such Trustee will be a Trustee of a trust separate and apart
from the trust administered by any other such Trustee, and any action described
herein to be taken by the "Trustee" may then be taken by each such Trustee with
respect to, and only with respect to, the one or more series of Indenture
Securities for which it is Trustee.
Restrictive Covenants Applicable to Owens Corning
Limitation on Liens
We will not, and we will not permit any Subsidiary (defined below) to,
incur, issue, assume or guarantee any (1) notes, (2) bonds, (3) debentures or
(4) other similar evidences of indebtedness for money borrowed ((1)-(4) are
collectively referred to as "Debt"), secured by pledge of, or mortgage or other
lien (each a "Mortgage" or "Mortgages") on, (a) any Principal Property (as
defined below) owned by us or any Restricted Subsidiary (defined below), or (b)
any shares of stock or Debt of any Restricted Subsidiary. However we may incur,
issue, assume or guarantee new Debt secured by a Mortgage if we effectively
provide that our outstanding Debt Securities (together with, if we so determine,
any of our other Debt or a subsidiary's Debt then existing or thereafter created
which is not subordinate to the Debt Securities) shall be secured equally and
ratably with (or prior to) the secured Debt, so long as the secured Debt shall
be so secured.
If, after giving effect to any new secured Debt, the aggregate amount of all
of our secured Debt, plus all of the Attributable Debt (as defined below) of
Owens Corning and its Restricted Subsidiaries in respect of sale and leaseback
transactions (defined in the next covenant), and otherwise prohibited by the
Indenture, would not exceed 10% of our Consolidated Net Tangible Assets (defined
below), then the restrictions described above will not be applicable to this new
secured Debt.
In addition, this covenant will not apply to, and there shall be excluded
from secured Debt in any computation under this covenant, Debt secured by:
(1) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(2) Mortgages in favor of Owens Corning or any Restricted Subsidiary;
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(3) Mortgages in favor of the United States of America, or any of its
agencies, departments or other instrumentalities, to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(4) Mortgages on property, shares of stock or Debt:
(a) existing at the time of their acquisition (including
acquisition through merger or consolidation), or
(b) to secure the payment of all or any part of their purchase
price or construction cost, or
(c) to secure any Debt incurred prior to, at the time of, or
within 120 days after, the acquisition of such property or shares or
Debt or the completion of any such construction for the purpose of
financing all or any part of the purchase price or construction cost
thereof; and
(5) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in clauses (1) to (4) above, inclusive; provided that (a) such
extension, renewal or replacement Mortgage shall be limited to all or a
part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such property)
and (b) the Debt secured by such Mortgage at such time is not increased.
"Attributable Debt" means the total net amount of rent required to be paid
by a person under a lease during the remaining term of the lease, discounted
from the respective due dates of the lease payments to the calculation date at a
rate of 12% per year compounded semi-annually. The net amount of rent payable by
this person under the lease will exclude amounts required to be paid for
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, the net rent amount will include the amount of the
penalty, but exclude rental payments owed subsequent to the first date upon
which the lease may be terminated.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
after deducting:
(a) all current liabilities (excluding Funded Debt), and
(b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expenses and other like intangibles,
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as such amounts are set forth in our most recent consolidated balance sheet and
computed in accordance with generally accepted accounting principles.
"Funded Debt" means all indebtedness for money borrowed, or evidenced by a
bond, debenture, note or similar instrument or agreement whether or not for
money borrowed, having a maturity of more than 12 months from the date of
determination of this amount, or having a maturity of less than 12 months, but
by its terms being renewable or extendable beyond 12 months from this
calculation date at the option of the borrower.
"Principal Property" means any building, structure or other facility,
together with the land on which it is erected and the fixtures comprising a part
of such property, used primarily for manufacturing, processing or warehousing
and located in the United States that has a gross book value (without deduction
of any depreciation reserves) on the date on which such determination is made in
excess of 1% of Consolidated Net Tangible Assets. However, for purposes of this
calculation, portions of the building or facility that are (1) pollution control
facilities financed by a state or local government or (2) deemed by our board of
directors to be immaterial to the business of Owens Corning and its Subsidiaries
as an entirety, will not be included.
A "Restricted Subsidiary" is any subsidiary of Owens Corning that owns any
Principal Property.
A "Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Owens Corning or by one or
more Subsidiaries. For purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
Limitation on Sales and Leasebacks
A sale and leaseback transaction, for purposes of this prospectus, is an
arrangement with any bank, insurance company or other lender or investor, or to
which any such lender or investor is a party, through which Owens Corning or any
Restricted Subsidiary leases any Principal Property owned or previously owned by
Owens Corning or such Restricted Subsidiary which we have sold or plan to sell
to such lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of the Principal Property.
The Principal Property that is the subject of the sale and leaseback transaction
must be sold more than 120 days after we acquired it or after the completion of
construction and commencement of full operation of the Principal Property. In
addition, the term of the lease must be in excess of three years, including
renewals of the lease. Any similar arrangement with Owens Corning or a
Restricted Subsidiary is not considered a sale and leaseback transaction.
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We will not, and we will not permit any Restricted Subsidiary to, enter into
any sale and leaseback transaction unless either:
(1) Owens Corning or such Restricted Subsidiary could create Debt
secured by a Mortgage pursuant to the Limitations on Liens covenant,
described above, on the Principal Property to be leased back in an amount
equal to the Attributable Debt with respect to such sale and leaseback
transaction without equally and ratably securing our outstanding Debt
Securities, or
(2) Owens Corning, within 120 days after Owens Corning or a Restricted
Subsidiary effects the sale or transfer of the Principal Property, applies
an amount equal to the greater of:
(a) the net proceeds of the sale of the Principal Property sold
and leased back pursuant to such arrangement or
(b) the fair market value of the Principal Property so sold and
leased back at the time of entering into such arrangement (as
determined by any two of the following officers or directors of Owens
Corning: the Chairman of the Board, its President, any Vice President,
its Treasurer and its Controller)
to the retirement of Funded Debt of Owens Corning. However, the amount to
be applied to the retirement of Owens Corning's Funded Debt shall be
reduced by:
(x) the principal amount of any Debt Securities delivered within
120 days after such sale to the Trustee for retirement and
cancellation and
(y) the principal amount of Funded Debt, other than Debt
Securities, voluntarily retired by Owens Corning within 120 days after
such sale.
Notwithstanding the foregoing, no retirement referred to in this clause (2)
may be effected by payment at maturity or pursuant to any mandatory
prepayment provision.
Certain Considerations Relating to Foreign Currencies
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency markets, the imposition or
modification of foreign exchange controls and potential illiquidity in the
secondary market. These risks will vary depending upon the currency or
currencies involved and will be more fully described in the applicable
prospectus supplement.
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DESCRIPTION OF CAPITAL STOCK
Our Certificate of Incorporation currently authorizes us to issue two
classes of stock: (1) 100 million shares of Common Stock, par value $0.10 per
share, and (2) 8 million shares of Preferred Stock with no par value. At
February 23, 1999, there were 54,351,085 shares of Common Stock outstanding.
This section summarizes the terms of our Common Stock and Preferred Stock.
The terms of these securities are subject to, and qualified by reference to the
General Corporation Law of Delaware, our Certificate of Incorporation (including
the Certificate of Designation of our Series A Participating Preferred Stock and
the Certificate of Increase of Designation of Series A Participating Preferred
Stock) and the 1996 Rights Agreement. Each of these documents, except for the
General Corporation Law of Delaware, is included as an exhibit to the
registration statement of which this prospectus forms a part.
Common Stock
Each outstanding share of Common Stock is entitled to one vote. The Common
Stock does not have cumulative voting rights for the election of directors,
which means that shareholders receive only one vote per share irrespective of
the number of directors to be elected. Therefore, if a shareholder owns 100
shares, and two directors are to be elected, the shareholder can vote a maximum
of 100 shares for any single candidate. Cumulative voting would allow a
shareholder to cast 200 votes for one candidate. The absence of cumulative
voting allows holders of over 50% of our Common Stock to elect 100% of our
directors.
Subject to the limitations contained in our debt instruments and after we
provide for the payment of dividends on any series of outstanding Preferred
Stock, holders of Common Stock are entitled to receive any dividends declared by
our board of directors.
The Common Stock has no conversion rights and is not redeemable. No holder
of Common Stock has any preemptive right to subscribe for any stock or other
securities of Owens Corning that may be issued.
In the event of the dissolution, liquidation or winding up of Owens Corning,
or upon any distribution of our assets, holders of Common Stock will be entitled
to receive a pro rata portion of all of the assets available for distribution to
stockholders, subject to any preferential right which may be accorded to any
series of Preferred Stock which might be issued.
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The Common Stock is listed on the New York Stock Exchange under the trading
symbol "OWC". The outstanding shares of Common Stock are validly issued, fully
paid and non-assessable.
Preferred Stock
The specific terms of any Preferred Stock proposed to be sold pursuant to
this prospectus and any prospectus supplement will be described in the
prospectus supplement. If so indicated in the prospectus supplement, the terms
of the offered Preferred Stock may differ from the terms set forth below.
Terms of Preferred Stock
Unless otherwise specified in the prospectus supplement relating to the
offered Preferred Stock, each series of Preferred Stock will rank equally as to
dividends and distribution of assets upon liquidation and in all other respects
with all other Preferred Stock.
You should read the prospectus supplement relating to the Preferred Stock
offered thereby for specific terms, including:
(1) The title and stated value of the Preferred Stock.
(2) The number of shares of the Preferred Stock offered, the
liquidation preference per share and the offering price of the Preferred
Stock.
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculating dividends applicable to the Preferred Stock.
(4) The date from which dividends on the Preferred Stock will
accumulate, if applicable.
(5) The liquidation rights of the Preferred Stock.
(6) The procedures for any auction and remarketing, if any, of the
Preferred Stock.
(7) The sinking fund provisions, if any, for the Preferred Stock.
(8) The redemption provisions, if applicable, of the Preferred Stock.
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(9) Whether the Preferred Stock will be convertible into or
exchangeable for other securities and, if so, the terms and conditions of
conversion or exchange, including the conversion price or exchange ratio
and the conversion or exchange period (or the method of determining the
same).
(10) Whether the Preferred Stock will have voting rights and the terms
of the Preferred Stock, if any.
(11) Whether the Preferred Stock will be listed on any securities
exchange.
(12) Whether the Preferred Stock will be issued with any other
securities.
(13) Any other specific terms, preferences or rights of, or
limitations or restrictions on, the Preferred Stock.
Subject to our Certificate of Incorporation and to any limitations contained
in outstanding Preferred Stock, we may issue additional series of Preferred
Stock, at any time or from time to time, with such powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions, as our board of directors or any of its duly
authorized committees may determine, all without further action of the
stockholders, including holders of any of our then outstanding Preferred Stock.
We may also include provisions in any series of Preferred Stock, such as
extraordinary voting, dividend, redemption or conversion rights, which could
discourage an unsolicited tender offer or takeover proposal.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of the material
federal income tax considerations relevant thereto.
Series A Preferred Stock
Out of the authorized Preferred Stock, we have designated 750,000 shares of
Series A Participating Preferred Stock ("Series A Preferred Stock"), the terms
of which are summarized below. Each outstanding share of Common Stock includes a
right, which expires December 30, 2006, to purchase one one-hundredth of a share
of Series A Preferred Stock, which Rights are listed on the New York Stock
Exchange and the terms of which are summarized below under "--1996 Preferred
Share Purchase Rights".
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Dividends
Holders of shares of Series A Preferred Stock are entitled to received
dividends when, as and if declared in cash on January 1, April 1, July 1 and
October 1 of each year. The annual rate of the dividends is (1) $10.00 per share
or (2) 100 times the aggregate per share amount of dividends or other
distributions on the Common Stock (excluding dividends payable in Common Stock)
since the last dividend payment date for the Series A Preferred Stock. Accrued
but unpaid dividends accumulate but do not accrue interest.
With respect to dividends and distributions, the Series A Preferred Stock
ranks:
o senior to the Common Stock; and
o junior to any series of Preferred Stock unless our Restated
Certificate of Incorporation or a certificate of designation with
respect to a subsequent series of our Preferred Stock expressly
provides that it ranks senior to the Series A Preferred Stock for
dividends and the distribution of assets on liquidation, dissolution
or winding-up.
If dividends or distributions payable on the Series A Preferred Stock are in
arrears, we (1) may not pay dividends or distributions on the Common Stock or
any other capital stock that ranks junior to the Series A Preferred Stock and
(2) may not declare or pay dividends or other distributions on any stock that
ranks equally with the Series A Preferred Stock except for dividends shared
ratably among the holders of the Series A Preferred Stock and all such equally
ranking stock.
Liquidation Rights
If we liquidate, dissolve or wind-up, holders of Series A Preferred Stock
will receive the higher of (1) $100.00 per share, plus accrued and unpaid
dividends to the payment date, or (2) 100 times the aggregate per share amount
to be distributed to holders of shares of Common Stock, before any payment is
made to the holders of Common Stock (or any other stock that ranks junior to the
Series A Preferred Stock). If the liquidation amount payable to holders of
Series A Preferred Stock and any other stock that ranks equally with the Series
A Preferred Stock is not paid in full, these holders will share in any
distribution pro rata based on the liquidation value per share.
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Consolidation and Merger Rights
If we consolidate, merge or combine with another entity or enter into any
other transaction in which our Common Stock is exchanged for other stock or
securities, cash and/or any other property, each share of Series A Preferred
Stock will simultaneously be exchanged for an amount equal to 100 times the
aggregate amount of stock or securities, cash and/or other property for which
each share of Common Stock is exchanged.
Limitation on Share Repurchase
If dividends or distributions payable on the Series A Preferred Stock are in
arrears, the Company may not redeem, purchase, or otherwise acquire for
consideration (1) any stock of the Company that ranks equally with the Series A
Preferred Stock, except in exchange for shares of any stock of the Company
ranking junior to the Series A Preferred Stock or (2) any shares of Series A
Preferred Stock or any stock of the Company that ranks equally with the Series A
Preferred Stock, except through a purchase offer made in writing or by
publication to all holders of such shares on terms that our board of directors
determines will result in fair and equitable treatment among the respective
series or classes of shares.
Voting Rights
Each share of Series A Preferred Stock entitles the holder to 100 votes on
all matters submitted to a vote of our stockholders. Holders of Series A
Preferred Stock, Common Stock and any other capital stock of Owens Corning will
vote together as one class.
If, at the time of our annual stockholders' meeting for the election of
directors, we are in default on at least six quarterly dividend payments on the
Series A Preferred Stock, the number of directors on our board will be increased
by two and the holders of Series A Preferred Stock, voting separately as a
class, will be entitled to elect those two additional directors. This right will
continue at each subsequent annual meeting until all dividends in arrears have
been paid or declared and set apart for payment. Upon termination of these
voting rights, the terms of the two additional directors will terminate
immediately and the number of directors on our board will be reduced by two.
Other Features
The shares of Series A Preferred Stock are not redeemable and may be issued
in fractions of a share (in one one-hundredth of a share and multiples of one
one-hundredth).
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1996 Preferred Share Purchase Rights
Under a Rights Agreement, dated as of December 12, 1996, between Owens
Corning and The Chase Manhattan Bank, as rights agent, each outstanding share of
our Common Stock is coupled with a right to purchase one one-hundredth of a
share of Series A Preferred Stock for $190.
The rights detach from the Common Stock and become exercisable ten business
days after a person or group acquires, or announces a tender offer for, 15% or
more of our outstanding Common Stock. We can redeem the rights for one cent per
right at any time prior to public announcement or notice to us of such an
acquisition or tender offer. After the announcement of the acquisition or tender
offer, but before the person or group acquires 50% or more of the outstanding
Common Stock, our board of directors may exchange one share of Common Stock for
each outstanding right, except for rights held by the acquiring person or group.
If we are subsequently acquired in a merger or other business combination, the
right will entitle the holder to receive, upon exercise, that number of shares
of the acquiror's common stock having a market value of two times the exercise
price of the right. If we are the surviving corporation and our Common Stock is
changed or exchanged, the right will entitle the holder, upon exercise, to
receive that number of shares of Common Stock having a market value of two times
the exercise price of the right.
One right will attach to each newly issued share of Common Stock until the
rights detach from the Common Stock or until the rights are terminated or
redeemed. The rights will expire on December 30, 2006.
Anti-takeover Provisions of Delaware Law and Certificate of Incorporation
We are subject to the provisions of Section 203 of the General Corporation
Law of Delaware. Section 203 prohibits a publicly held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for three
years after the date of the transaction in which the person becomes an
interested stockholder, unless the combination is approved by the corporation's
board and shareholders in a prescribed manner. An "interested stockholder" is a
person who, together with affiliates and associates, owns 15% or more of the
corporation's voting stock.
In addition to Section 203 of the General Corporation Law of Delaware and
the Preferred Share Purchase Rights, our charter contains several provisions
that may discourage certain transactions involving an actual or threatened
change of control of Owens Corning. For example, our Certificate of
Incorporation requires certain business combinations involving Owens Corning and
a holder of 10% or more of its voting securities to be approved by at least
662/3% of all shares having voting rights.
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The provisions of the Delaware General Corporation Law and our Certificate
of Incorporation described above and the Rights Agreement effectively encourage
persons seeking control of Owens Corning to consult first with our board of
directors to negotiate the terms of any proposed business combination or offer.
They may, however, also have the effect of discouraging a third party from
attempting to acquire control of Owens Corning. Since these provisions are
designed to discourage accumulations of large blocks of stock by third parties
who wish to gain control of Owens Corning, they may also reduce the temporary
market price fluctuations caused by such accumulations.
Transfer Agent and Registrar
Our transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services, located in New York, New York.
DESCRIPTION OF WARRANTS
We may issue Warrants, including Warrants to purchase Debt Securities,
Preferred Stock, Common Stock or other of our securities. Warrants may be issued
independently or together with any of our securities and may be attached to or
separate from our securities. The Warrants are to be issued under warrant
agreements to be entered into between Owens Corning and a bank or trust company,
as warrant agent.
The specific terms of the Warrants and the related warrant agreement will be
described in the prospectus supplement relating to the Warrants being offered. A
copy of the form of warrant agreement has been filed as an exhibit to the
registration statement of which this prospectus forms a part. The terms of the
Warrants described below and that will be described in the applicable prospectus
supplement are not complete and are qualified by reference to the warrant
agreement and warrant certificate relating to such Warrants.
Terms of Debt Warrants
The applicable prospectus supplement will describe the terms of Warrants to
purchase Debt Securities ("Debt Warrants"), warrant agreements relating to the
Debt Warrants and warrant certificates representing the Debt Warrants, including
the following:
(1) The title and aggregate number of Debt Warrants.
(2) The title, rank, aggregate principal amount and terms of the
underlying Debt Securities purchasable upon exercise of the Debt Warrants.
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(3) The principal amount of underlying Debt Securities that may be
purchased upon exercise of each Debt Warrant and the price or the manner of
determining the price at which such principal amount may be purchased upon
such exercise.
(4) The procedures and conditions relating to the exercise of the Debt
Warrants and the expiration date of the Debt Warrants.
(5) Any optional redemption terms.
(6) Whether certificates evidencing the Debt Warrants ("Debt Warrant
Certificates") will be issued in registered form and, if so, where they may
be transferred and exchanged.
(7) Whether the Debt Warrants are to be issued with any Debt
Securities or any other securities.
(8) The date, if any, on and after which the Debt Warrants and
underlying Debt Securities will be separately transferable.
(9) If applicable, a discussion of material U.S. federal income tax
considerations.
(10) Any other terms of the Debt Warrants.
(11) The terms of our securities purchasable upon exercise of the Debt
Warrants.
Terms of Other Warrants
We may also issue Warrants other than Debt Warrants. The applicable
prospectus supplement will describe the following terms of any other Warrants,
including:
(1) The title and aggregate number of the Warrants.
(2) The title and terms of the underlying securities purchasable upon
exercise of the Warrants. These underlying securities may include our
Preferred Stock or Common Stock.
(3) The price or prices at which the Warrants will be issued.
(4) The procedures and conditions relating to the exercise of the
Warrants and the expiration date of the Warrants.
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(5) Whether certificates evidencing the Warrants will be issued in
registered form, and, if so, where they may be transferred and exchanged.
(6) The date, if any, on and after which the Warrants and the
underlying securities will be separately transferable.
(7) If applicable, a discussion of material U.S. federal income tax
considerations.
(8) Any other terms of the Warrants.
(9) The terms of our securities purchasable upon exercise of the
Warrants.
Exercise of Warrants
Each Warrant will entitle the holder to purchase for cash or other
consideration such amount of underlying securities at the exercise price set
forth in, or calculable from, the prospectus supplement relating to the
Warrants. After the close of business on the expiration date, unexercised
Warrants will become void.
Upon receipt of payment and the Warrant certificate properly completed and
duly executed at the corporate trust office of the Warrant agent or any other
office indicated by the applicable prospectus supplement, we will, as soon as
practicable, forward the securities purchased upon exercise. If less than all
the Warrants represented by such Warrant certificate are exercised, a new
Warrant certificate will be issued for the remaining Warrants.
Modifications
Unless otherwise specified in the applicable prospectus supplement, we and
the Warrant Agent may amend each Warrant Agreement and the terms of the Warrants
and the Warrant certificates without the consent of the holders in order to cure
any ambiguity, or correct or supplement any defective or inconsistent provision.
We are also permitted to make any other change which does not adversely affect
the interests of the holders of the Warrants in any material respect.
No Rights as Holders of Underlying Securities
Before the Warrants are exercised, holders of Warrants are not entitled to
payments of principal of, premium, if any, interest, or dividends on the related
underlying securities or to exercise any other rights whatsoever as holders of
the underlying securities.
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DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue Stock Purchase Contracts, including contracts obligating
holders to purchase from us, and obligating us to sell to the holders, a
specified number of shares of Common Stock or Preferred Stock at a future date
or dates. The cost of each share of Preferred Stock or Common Stock may be fixed
at the time the Stock Purchase Contract is 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 part of a unit
("Stock Purchase Units"). Each Stock Purchase Unit will consist of a Stock
Purchase Contract and Debt Securities, Preferred Stock, preferred securities,
Junior Subordinated Debentures or debt obligations of third parties, including
U.S. Treasury securities, securing the holders' obligations to purchase the
Preferred Stock or the Common Stock under the Stock Purchase Contracts.
The Stock Purchase Contracts may require us to make periodic payments to
holders of Stock Purchase Units or vice versa, and such payments may be
unsecured or funded in advance on some basis to insure payment. Provisions in
the Stock Purchase Contracts may require holders to secure their obligations
under the contracts 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 be complete and will be qualified by reference to the Stock
Purchase Contracts, and if applicable, collateral arrangements and depositary
arrangements relating to such Stock Purchase Contracts or Stock Purchase Units.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Unless otherwise specified in the Prospectus Supplement, we may issue Junior
Subordinated Debentures in one or more series under a Junior Subordinated
Indenture (the "Subordinated Indenture") between Owens Corning and Wilmington
Trust Company, as trustee (the "Debenture Trustee"). If Junior Subordinated
Debentures are issued, this Subordinated Indenture will be supplemented or
amended for each new series of Junior Subordinated Debentures. As with the Debt
Securities, this section contains a summary of some of the terms and provisions
of the Junior Subordinated Debentures and the Subordinated Indenture. As stated
above, upon an offering of securities we may amend and restate the applicable
Declaration of Trust to provide that a trust exists for the purpose of acquiring
debt securities issued by Owens Corning other than, or in addition to, Junior
Subordinated Debentures. Such other debt securities, if any, will be described
in a prospectus supplement and may also include debt securities that are senior
or senior subordinated. This
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summary of the Junior Subordinated Debentures is subject to and qualified in its
entirety by reference to the provisions of the Subordinated Indenture, including
definitions of certain terms used in the Subordinated Indenture. The form of the
Subordinated Indenture is filed as an exhibit to the registration statement of
which this prospectus forms a part. Whenever we refer to a particular defined
term from the Subordinated Indenture in this prospectus or in the prospectus
supplement, such defined term is incorporated by reference in this prospectus or
in the prospectus supplement.
Terms of Junior Subordinated Debentures
Each series of Junior Subordinated Debentures will be an unsecured
obligation of Owens Corning and will rank equally with our outstanding
Convertible Subordinated Debentures due 2025 and with all other series of Junior
Subordinated Debentures, and junior in right of payment to all of our Senior
Debt.
Except as otherwise provided in the applicable Prospectus Supplement, the
Subordinated Indenture does not limit our incurrence or issuance of other
secured or unsecured debt, whether under the Subordinated Indenture, any other
indenture that we may enter into in the future or otherwise.
With respect to each series of Junior Subordinated Debentures, you should
read the applicable prospectus supplement for the following terms:
(1) The title of the Junior Subordinated Debentures.
(2) Any limit on the total principal amount of Junior Subordinated
Debentures of the series.
(3) The date or dates, or how such date or dates will be determined or
extended, when the principal of the Junior Subordinated Debentures will be
payable.
(4) The rate or rates at which the Junior Subordinated Debentures will
bear interest, if any, or how such rate or rates will be determined, the
interest payment dates and any record dates for such payments.
(5) The place or places where the principal of (and premium if any)
and interest on the Junior Subordinated Debentures will be payable.
(6) Any optional redemption provisions.
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(7) Any sinking fund or other provisions that would obligate Owens
Corning to repurchase or otherwise redeem the Junior Subordinated
Debentures.
(8) The form of the Junior Subordinated Debentures, including whether
the Junior Subordinated Debentures are to be issuable in permanent or
temporary global form.
(9) If other than U.S. dollars, the currency, currencies or any
currency units in which payment of principal of (and premium, if any) and
interest on the Junior Subordinated Debentures will be payable.
(10) Any changes or additions to the events of default or covenants.
(11) If not the entire principal amount of the Junior Subordinated
Debentures, the portion of the principal amount payable upon acceleration
of the maturity of the Junior Subordinated Debentures or how such portion
will be determined.
(12) If other than denominations of $25, the denominations in which
the offered Junior Subordinated Debentures will be issued.
(13) Whether the amount of payments of principal of and premium, if
any, on the Junior Subordinated Debentures will be determined with
reference to an index, formula or other method and how such amounts will be
determined.
(14) The terms and conditions relating to the issuance of a temporary
global security representing all of the Junior Subordinated Debentures of
such series and exchange for definitive Junior Subordinated Debentures.
(15) The terms and conditions of any obligation or right of Owens
Corning or a holder to convert or exchange Junior Subordinated Debentures
into preferred securities or other securities.
(16) The appointment of any paying agent or agents.
(17) The relative degree, if any, to which such series of Junior
Subordinated Debentures will be senior to or subordinated to other series
of Junior Subordinated Debentures or other indebtedness of Owens Corning in
right of payment.
(18) Any other terms of such Junior Subordinated Debentures.
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Junior Subordinated Debentures may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates. Certain material U.S. federal
income tax consequences and special considerations applicable to any such Junior
Subordinated Debentures will be described in the applicable prospectus
supplement.
If the purchase price of any of the Junior Subordinated Debentures is
payable in one or more foreign currencies or currency units or if any Junior
Subordinated Debentures are denominated in one or more foreign currencies or
currency units or if the principal of, premium, if any, or interest, if any, on
any Junior Subordinated Debentures is payable in one or more foreign currencies
or currency units, the restrictions, elections, certain material U.S. federal
income tax considerations, specific terms and other information with respect to
such issue of Junior Subordinated Debentures and such foreign currency or
currency units will be set forth in the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest, if any, on any series of Junior Subordinated
Debentures, certain material U.S. federal income tax, accounting and other
considerations applicable thereto will be described in the applicable prospectus
supplement.
Book-Entry Junior Subordinated Debentures
The Junior Subordinated Debentures will be issued in the form of one or more
Global Securities. See "Book-Entry Securities" for additional information about
your limited rights as the beneficial owner of a Global Security.
Denominations, Registration and Transfer
Unless otherwise specified in a prospectus supplement, Junior Subordinated
Debentures will be issuable:
o as registered certificated securities without coupons,
o in denominations that are multiples of $25, and
o as Global Securities. See "Book-Entry Securities".
You may have your registered Junior Subordinated Debentures separated into
more registered Junior Subordinated Debentures of smaller denominations or
combined into fewer registered Junior Subordinated Debentures of larger
denominations, as long as they are of the same series,
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were issued on the same date and have the same maturity date and interest rate
and the total principal amount is not changed.
In order to exchange Junior Subordinated Debentures, as described above,
they must be presented at the office of the Securities Registrar or a transfer
agent designated by Owens Corning for such purpose in the applicable prospectus
supplement. We will appoint the Debenture Trustee as Securities Registrar under
the Subordinated Indenture. If we have designated transfer agents, in addition
to the Securities Registrar, with respect to a series of Junior Subordinated
Debentures, we may rescind the appointment of such transfer agents or approve a
change in the location through which a transfer agent acts provided we maintain
a transfer agent in each previously designated place of payment for such series.
We may also designate additional transfer agents with respect to any series of
Junior Subordinated Debentures.
In the event of any redemption of Junior Subordinated Debentures, Owens
Corning and the Debenture Trustee will not be required to:
o issue, register the transfer of or exchange Junior Subordinated
Debentures of any series from a date 15 business days before the day
we select the Junior Subordinated Debentures to be redeemed and ending
at the close of business on the day of mailing of the relevant notice
of redemption; or
o transfer or exchange any Junior Subordinated Debentures that have been
selected for redemption, except for any portion of the Junior
Subordinated Debentures being redeemed in part that are not to be
redeemed.
Option to Defer Interest Payments
If provided in the applicable prospectus supplement, we will have the right
at any time and from time to time during the term of any series of Junior
Subordinated Debentures to defer the payment of interest for the number of
consecutive interest payment periods specified in the applicable prospectus
supplement (each, an "Extension Period"). This right of deferral will be subject
to the terms, conditions and covenants, if any, specified in the prospectus
supplement and any Extension Period may not extend beyond the stated maturity of
the Junior Subordinated Debentures. Any material U.S. federal income tax
consequences and special considerations applicable to any Junior Subordinated
Debentures subject to an Extension Period will be described in the applicable
prospectus supplement. See "Description of the Preferred
Securities--Distributions" for additional information regarding Extension
Periods and their effect on the Preferred Securities.
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Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, payments
of principal, premium and interest on Junior Subordinated Debentures will be
made at the office of the Debenture Trustee in The City of New York or at the
office of a paying agent we designate. We also have the option of making
interest payments to holders of Junior Subordinated Debentures (1) by check to
the address of the person or entity listed in the Securities Register, except in
the case of global Junior Subordinated Debentures or (2) by transfer to an
account maintained by such person or entity. Interest on Junior Subordinated
Debentures will be paid to the registered holder of such Junior Subordinated
Debentures on the record date for the interest payment, except as otherwise
provided in the applicable prospectus supplement. We may designate additional
paying agents or rescind the designation of any paying agent at any time.
We will deposit interest, principal and any other amount due on the Junior
Subordinated Debentures with the paying agent specified in the prospectus
supplement. Any amounts unclaimed after two years from the date such amounts
become due and payable will be returned to Owens Corning, and the holder of the
related Junior Subordinated Debentures can only look, as a general unsecured
creditor, to Owens Corning for payment.
Redemption
Unless otherwise indicated in the applicable prospectus supplement, Junior
Subordinated Debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, we may,
at our option, redeem the Junior Subordinated Debentures of any series in whole
at any time or in part from time to time, at the redemption price provided in
the applicable prospectus supplement plus accrued and unpaid interest to the
date fixed for redemption. Junior Subordinated Debentures in denominations
larger than $25 may be redeemed in part but only in integral multiples of $25.
If the Junior Subordinated Debentures of any series are redeemable only on or
after a specified date or upon the satisfaction of additional conditions, the
applicable prospectus supplement will specify such date or describe such
conditions.
Except as otherwise specified in the applicable prospectus supplement, if a
Tax Event (as defined below) in respect of a series of Junior Subordinated
Debentures or an Investment Company Event (as defined below) in respect of a
trust shall occur and be continuing, we may, at our option, redeem that series
of Junior Subordinated Debentures in whole (but not in part) within 90 days of
the occurrence of such Tax Event or Investment Company Event, at a redemption
price equal to 100% of the principal amount of such Junior Subordinated
Debentures then outstanding plus accrued and unpaid interest to the date fixed
for redemption.
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"Tax Event" means the receipt by us of an opinion of counsel experienced in
such matters to the effect that, as a result of:
o any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein affecting taxation,
o any amendment to or change in an interpretation or application of such
laws or regulations by any legislative body, court, governmental
agency or regulatory authority, or
o any interpretation or pronouncement that provides for a position with
respect to such laws or regulations that differs from the generally
accepted position on the date the applicable series of Junior
Subordinated Debentures is issued, which amendment, clarification or
change is effective or which interpretation or pronouncement is
announced on or after the date of issuance of the applicable series of
Junior Subordinated Debentures under the Subordinated Indenture,
there is more than an insubstantial risk that interest payable by us on such
series of Junior Subordinated Debentures is not, or within 90 days of the date
thereof, will not be deductible, in whole or in part, for U.S. federal income
tax purposes.
"Investment Company Event" means with respect to any trust, the occurrence
of a change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority to the effect that the trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, which change becomes effective on or after the date of
original issuance of the trust's preferred securities.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Junior Subordinated
Debentures to be redeemed at such holder's registered address. Unless we default
in the payment of the redemption price, on and after the redemption date
interest shall cease to accrue on the Junior Subordinated Debentures or portions
of the Junior Subordinated Debentures called for redemption.
In the recent past, there have been various legislative proposals which, if
enacted, would have prohibited an issuer from deducting interest payments or
original issue discount under certain circumstances. We cannot assure you that
legislation affecting our ability to deduct interest paid on the Junior
Subordinated Debentures as indebtedness for U.S. federal income tax purposes,
including legislation similar to the proposals described above, will not be
enacted in the future or that any such legislation would not be effective
retroactively. In the event tax law changes are
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enacted and apply retroactively to the Junior Subordinated Debentures, such
changes could give rise to a Tax Event, which would permit us to cause a
redemption of the Junior Subordinated Debentures, or, in the case of Junior
Subordinated Debentures held by a trust, such changes could give rise to a Tax
Event or Investment Company Event, which would permit us to cause a redemption
of the related preferred securities and common securities, as described more
fully under "Description of the Preferred Securities--Redemption".
Restrictions on Certain Payments by Owens Corning
We will covenant in the Subordinated Indenture that:
o if any event of which we have actual knowledge has occurred and is
continuing
o that with notice or the lapse of time, or both, would constitute
a Debenture Event of Default with respect to the Junior
Subordinated Debentures of a series and
o in respect of which we have not taken reasonable steps to cure,
o if the Junior Subordinated Debentures of a series are held by a trust
which has issued a series of related preferred securities and we are
in default with respect to our payment of any obligations under the
Guarantee relating to the preferred securities, or
o if we have given notice of an Extension Period with respect to the
Junior Subordinated Debentures of a series and have not rescinded
such notice, or such Extension Period, or any extension of such
Extension Period is continuing,
then we will not and we will not permit any of our subsidiaries to:
o declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of our
capital stock (other than as a result of a reclassification of such
capital stock or the exchange or conversion of one class or series of
capital stock for another class or series),
o make any payment of principal, interest or premium, if any, on, or
repay or repurchase or redeem, any debt securities of Owens Corning
(including other Junior Subordinated Debentures) that rank equally
with or junior in interest to the Junior Subordinated Debentures or
make any guarantee payments with respect to such debt securities, or
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o make any guarantee payments with respect to any guarantee by Owens
Corning of the debt securities of any subsidiary if such guarantee
ranks equally with or junior in interest to the Junior Subordinated
Debentures.
However, we may continue to:
o pay any dividends or distributions in Common Stock,
o redeem or purchase any rights pursuant to any stockholder protection
rights plan, including our 1996 Rights Agreement or any successor to
such agreement, and declare a dividend of such rights or the issuance
of stock under such plans,
o make any payment under any Guarantee of preferred securities by Owens
Corning; and
o allow our subsidiaries to make guarantee payments to us.
Modification or Waiver
There are three types of changes we can make to the Subordinated Indenture
and the Junior Subordinated Debentures.
Changes Requiring Your Approval. The first type of change cannot be made to
your Junior Subordinated Debentures without your specific approval. They are:
o a change in the stated maturity of the Junior Subordinated Debentures,
a reduction in the principal amount of the Junior Subordinated
Debentures, or a reduction in the rate or extension of the time of
payment of interest on the Junior Subordinated Debentures (except for
any permitted deferral in connection with an Extension Period), and
o a reduction in the percentage of principal amount of the outstanding
Junior Subordinated Debentures, the holders of which are required to
consent to any modification of the Subordinated Indenture.
Changes Not Requiring Approval. The second type of change does not require
any vote of the holders of the Junior Subordinated Debentures. This type of
change is limited to (1) curing ambiguities, defects or inconsistencies as long
as such changes do not adversely affect the interests of the holders of the
Junior Subordinated Debentures or the related preferred securities in any
material respect, (2) qualifying, or maintaining the qualification of, the
Subordinated Indenture under the TIA and (3) executing any supplemental
Subordinated Indenture for the purpose of creating any new series of Junior
Subordinated Debentures.
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Changes Requiring a Majority Vote. Changes to the Subordinated Indenture and
the Junior Subordinated Debentures other than those described above require the
consent of holders owning a majority of the principal amount of the outstanding
Junior Subordinated Debentures of each particular series affected.
Consent of the Related Preferred Security Holders. As long as the related
preferred securities are outstanding, no modification to the Subordinated
Indenture may be made that adversely affects the holders of preferred securities
in any material respect, no termination of the Subordinated Indenture may occur,
and no waiver of any event of default or compliance with any covenant under the
Subordinated Indenture may be effective, without the prior consent of the
holders of a majority of the aggregate liquidation preference of such preferred
securities (unless and until the principal and all accrued and unpaid interest
on the corresponding Junior Subordinated Debentures has been paid in full or
provided for in accordance with the Subordinated Indenture). See "Description of
the Preferred Securities - Enforcement Rights."
Events of Default
The registered holder of Junior Subordinated Debentures will have special
rights if an Event of Default under the Subordinated Indenture occurs and is not
cured, as described later in this subsection.
What is an Event of Default? The term "Event of Default" under the
Subordinated Indenture with respect to any series of Junior Subordinated
Debentures means any of the following events:
o We do not pay interest on the Junior Subordinated Debentures of the
series within 30 days of its due date (except a permitted deferral
during an Extension Period will not be a default).
o We do not pay the principal or premium, if any, on the Junior
Subordinated Debentures of the series when due, whether at maturity,
upon redemption, by declaration or otherwise (except when the maturity
date has been extended as permitted by the Subordinated Indenture).
o We remain in breach of any other covenant contained in the
Subordinated Indenture in any material respect for 90 days after we
receive a notice of default stating we are in breach. The notice must
be sent by either the Debenture Trustee or the holders of at least 25%
in aggregate principal amount of the outstanding Junior Subordinated
Debentures of the series.
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o We file for bankruptcy or certain other events in bankruptcy,
insolvency or reorganization occur.
Remedies if an Event of Default Occurs. If an Event of Default in respect of
a series of the Junior Subordinated Debentures has occurred and is continuing,
either the Debenture Trustee or the holders of not less than 25% in aggregate
principal amount of the outstanding Junior Subordinated Debentures of the
series may declare the principal of all Junior Subordinated Debentures of the
series to be due and payable immediately. If the preferred securities of a trust
are outstanding and the Debenture Trustee or those holders of Junior
Subordinated Debentures fail to exercise this right, the holders of at least 25%
in aggregate liquidation amount of the related outstanding preferred securities
may exercise the right. The holders of a majority in aggregate principal amount
of the outstanding Junior Subordinated Debentures of the series may also cancel
any declaration of acceleration and waive the default if the default has been
cured and a sum sufficient to pay all matured installments of interest and
principal of such series due otherwise than by acceleration has been deposited
with the Debenture Trustee. If the holders of Junior Subordinated Debentures of
the series do not exercise this right, the holders of a majority in aggregate
liquidation amount of the related outstanding preferred securities may
exercise the right.
The holders of a majority in aggregate principal amount of the outstanding
Junior Subordinated Debentures of any series may, on behalf of the holders of
all Junior Subordinated Debentures of the series, waive any past default under
the Subordinated Indenture with respect to the series other than:
o a default in the payment of principal or interest, unless the default
has been cured and a sum sufficient to pay all matured installments of
interest and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee, or
o a default in respect of a covenant that under the Subordinated
Indenture cannot be modified or amended without the consent of the
holder of each outstanding Junior Subordinated Debenture affected.
If the holders of Junior Subordinated Debentures do not exercise this right, the
holders of a majority in aggregate liquidation amount of the related outstanding
preferred securities may do so.
The holders of a majority in aggregate principal amount of outstanding
Junior Subordinated Debentures affected by an Event of Default will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee. This right, as well as the rights of
the holders of Junior Subordinated Debentures with regard to
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acceleration, cancellation and waiver described above, will be subject to the
enforcement rights of the holders of related preferred securities when the
preferred securities are outstanding. See "Description of the Preferred
Securities--Enforcement Rights". We will be obligated to provide the Debenture
Trustee (and, if the related preferred securities are outstanding, the Property
Trustee) annually a certificate as to whether or not we are in compliance with
the provisions of the Subordinated Indenture applicable to us.
In addition, if an Event of Default occurs and is continuing with respect to
Junior Subordinated Debentures held by a trust, the Property Trustee may declare
the principal of, and interest on, such Junior Subordinated Debentures to be
immediately due and payable. The Property Trustee may also enforce its rights as
a creditor with respect to such Junior Subordinated Debentures.
If an Event of Default with respect to a series of Junior Subordinated
Debentures has occurred and is continuing and such event is attributable to our
failure to pay interest or principal on such Junior Subordinated Debentures on
the date such interest or principal is otherwise payable, a holder of the
related preferred securities may institute a legal proceeding directly against
us for enforcement of payment to such holder of the principal of or interest on
such Junior Subordinated Debentures having a principal amount equal to the
aggregate liquidation amount of the related preferred securities of such holder
( a "Direct Action"). We may not amend the Subordinated Indenture to remove the
foregoing right to bring a Direct Action without the prior written consent of
the holders of all of the related preferred securities. If the right to bring a
Direct Action is removed, the applicable trust may become subject to the
reporting obligations under the Exchange Act. We will have the right under the
Subordinated Indenture to set off any payment made to such holder of preferred
securities by us in connection with a Direct Action. The holders of preferred
securities will not be able to exercise directly any other remedy available to
the holders of the Junior Subordinated Debentures unless there shall have been
an Event of Default under the applicable Declaration of Trust.
Consolidation, Merger, Sale of Assets and Other Transactions
Under the terms of the Subordinated Indenture, we are generally permitted to
consolidate or merge with another firm. We are also permitted to sell all or
substantially all of our assets to another firm. However, we may not take any of
these actions unless all the following conditions are met:
o If we merge out of existence or transfer our assets, the entity into
which we merge or sell our assets must be a corporation organized
under the laws of the United States, any U.S. state or the District of
Columbia and it must expressly assume our obligations in respect of
the Junior Subordinated Debentures and the Subordinated Indenture.
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o Immediately after the merger or transfer of assets, no default under
the Junior Subordinated Debentures and no event which, after notice or
lapse of time, or both, would become an Event of Default, has
occurred.
o If Junior Subordinated Debentures are held by a trust, the applicable
Declaration of Trust and Guarantee permit the transaction, and such
transaction does not give rise to any breach or violation of such
Declaration of Trust or Guarantee.
The general provisions of the Subordinated Indenture do not afford holders
of the Junior Subordinated Debentures (or related preferred securities)
protection in the event of a highly leveraged or other transaction involving
Owens Corning that may adversely affect the interests of those holders.
Satisfaction and Discharge
The Subordinated Indenture provides that, except as noted below, the
Subordinated Indenture will cease to be of further effect, and we will be deemed
to have satisfied and discharged the Subordinated Indenture, when the following
conditions (among others) have been satisfied:
o All Junior Subordinated Debentures not previously delivered to the
Debenture Trustee for cancellation have become due and payable or will
become due and payable at their stated maturity within one year of the
date of deposit.
o We deposit with the Debenture Trustee, in trust, funds sufficient to
pay the entire indebtedness on those Junior Subordinated Debentures
not previously delivered for cancellation, for the principal and any
premium or interest to the date of the deposit (for Junior
Subordinated Debentures that have become due and payable) or to the
stated maturity or the redemption date, as the case may be (for Junior
Subordinated Debentures that have not become due and payable).
We will remain obligated to pay all other amounts due under the Subordinated
Indenture and to provide the officers' certificates and opinions of counsel
described in the Subordinated Indenture.
Conversion and Exchange
If any Junior Subordinated Debentures are convertible into or exchangeable
for preferred securities or other securities, the prospectus supplement will
explain the terms and conditions of such conversion or exchange, including:
o the conversion price or exchange ratio (or the calculation method),
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o the conversion or exchange period (or how such period will be
determined),
o if conversion or exchange will be mandatory or at the option of the
holder or Owens Corning,
o provisions for adjustment of the conversion price or the exchange
ratio, and
o provisions affecting conversion or exchange in the event of the
redemption of the Junior Subordinated Debentures.
The terms may also include provisions under which the number or amount of other
securities to be received by the holders of such Junior Subordinated Debentures
upon conversion or exchange would be calculated according to the market price of
such other securities as of a time stated in the prospectus supplement.
Subordination
The payment of principal and any premium or interest on the Junior
Subordinated Debentures is subordinated in right of payment to the prior payment
in full of all of our Senior Debt. This means that in certain circumstances
where we may not be making payments on all of our debt obligations as they come
due, the holders of all of our Senior Debt will be entitled to receive payment
in full of all amounts that are due or will become due on the Senior Debt before
the registered holders of the Junior Subordinated Debentures will be entitled to
receive any payment or distribution on the Junior Subordinated Debentures. These
circumstances include the following:
o We make a payment or distribute assets to creditors upon any
liquidation, dissolution, winding up or reorganization of Owens
Corning, or as part of an assignment or marshalling of our assets for
the benefit of our creditors.
o We file for bankruptcy or certain other events in bankruptcy,
insolvency or similar proceedings occur.
o We make any assignment for the benefit of creditors.
o We are subject to any other marshalling of our assets.
In addition, we are generally not permitted to make payments of principal
and any premium or interest on the Junior Subordinated Debentures if we default
in our obligation to make payments on Senior Debt and do not cure such default.
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After payment in full of all amounts owed on Senior Debt, the holders of
Junior Subordinated Debentures, together with the holders of any equally ranking
obligations, will be paid from the remaining assets of Owens Corning the amounts
owed on the Junior Subordinated Debentures and those other obligations before
any payment or other distribution will be made on any capital stock or any
junior ranking obligations of Owens Corning.
If any holder of Junior Subordinated Debentures receives any payment or
distribution on his securities before all the Senior Debt has been paid in full,
the holder must receive the payment or distribution in trust for the benefit of,
and must pay over or deliver and transfer the same to, the holders of the Senior
Debt at the time outstanding to the extent necessary to pay all the Senior Debt
in full.
"Senior Debt" means all indebtedness incurred, assumed or guaranteed,
directly or indirectly, by us, either before, on, or after the date of the
Subordinated Indenture without any limitation as to the amount or terms thereof,
and whether such indebtedness (including, but not limited to, interest on any
such indebtedness) arises or accrues before or after the commencement of any
bankruptcy, insolvency or receivership proceedings,
(1) which arises for borrowed money, securities sold, funds provided,
assets or services purchased or any other transaction whether or not in the
ordinary course of business and which is evidenced by a promissory note,
bond, debenture, writing or other instrument of indebtedness or reflected on
our accounting records as a payable but expressly excluding:
(A) amounts owed for compensation to employees,
(B) obligations owing under judgments arising out of obligations
that are not indebtedness for borrowed money (other than any
such obligations arising from obligations which are otherwise
Senior Debt),
(C) any indebtedness which by the terms of the instrument creating
or evidencing the same is not superior in right of payment to
or is junior in right of payment to the Junior Subordinated
Debentures,
(D) any liability for federal, state, local or other taxes owed or
owing by us,
(E) any liability in respect of any employee benefit plan
(including, without limitation, any liability to the Pension
Benefit Guaranty Corporation or any successor thereto),
(F) indebtedness or obligations to our subsidiary,
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(G) our 6 1/2% Convertible Subordinated Debentures due 2025, and
(H) indebtedness to trade creditors or monetary obligations to
trade creditors incurred or assumed by us or any of our
subsidiaries in the ordinary course of business;
(2) for principal of and interest on all loans and other extensions of
credit under the Credit Agreement dated November 2,1993, among Owens
Corning, Credit Suisse, as agent, and the other lenders listed on Annex A of
the Credit Agreement, as in effect and as amended, renewed, extended or
supplemented from time to time, and any document, instrument or agreement
executed and delivered in connection therewith and all fees, expenses,
reimbursements, indemnities, premiums and other amounts payable under the
Credit Agreement;
(3) for principal of (and premium, if any) and interest on our 5 3/8%
Swiss Franc Bonds due November 26, 2000 and our 7 1/4% DM Bonds of 1985/2000
and all fees, expenses, reimbursements, indemnities, premiums and other
amounts payable thereunder;
(4) for any amount payable with respect to any lease, conditional sale
or installment sale agreement or other financing instrument or agreement
which in accordance with generally accepted accounting principles is, at the
date of the Subordinated Indenture or at the time the lease, conditional
sale or installment sale agreement or other financing instrument or
agreement is entered into, assumed or guaranteed, directly or indirectly, by
us, required to be reflected as a liability on the face of our balance
sheet;
(5) for all principal of and interest on all loans and other extensions
of credit under any lines of credit, credit agreements or promissory notes
from a bank or other financial institution (including, without limitation,
any letters of credit, bankers' acceptances, performance bonds and other
credit facilities under such borrowing arrangements), and all fees,
expenses, reimbursements, indemnities, premiums and other amounts payable
under such borrowing arrangements;
(6) for any amounts payable in respect of any interest rate exchange
agreement, ceiling rate agreement, currency exchange agreement or similar
agreement; and
(7) for renewals, deferrals, amendments, modifications, supplements,
extensions or refundings of any of the indebtedness described in clauses (1)
through (6), inclusive, or evidences of indebtedness issued in exchange for
such Senior Debt.
Senior Debt shall continue to constitute Senior Debt for all purposes of the
Junior Subordinated Debentures, and the provisions of Article XIII of the
Subordinated Indenture shall continue to
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apply to such Senior Debt, notwithstanding the fact that such Senior Debt or any
claim in respect thereof shall be disallowed, avoided or subordinated pursuant
to the provisions of the United States Bankruptcy Code of 1978, as amended, or
other applicable law.
The Subordinated Indenture places no limitation on the amount of additional
Senior Debt that we may incur in the future. We expect to incur substantial
amounts of additional Senior Debt from time to time.
The Subordinated Indenture provides that the above subordination provisions,
insofar as they relate to a particular issue of Junior Subordinated Debentures,
may be changed prior to such issuance. Any such change would be described in the
prospectus supplement relating to such Junior Subordinated Debentures.
Notices
Copies of notices to holders of Junior Subordinated Debentures under the
Subordinated Indenture will be given to holders of the preferred securities in
accordance with provisions similar to those described in "Description of the
Preferred Securities--Notices" and to the Property Trustee. If in the future the
Junior Subordinated Debentures have been distributed in exchange for the
preferred securities, notices to holders of preferred securities will be given
to those holders in accordance with the provisions for notices to the holders of
the preferred securities referred to above.
Governing Law
The Subordinated Indenture and the Junior Subordinated Debentures will be
governed by and construed in accordance with the laws of the State of New York.
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DESCRIPTION OF THE PREFERRED SECURITIES
The following is a general description of the preferred securities. For more
specific details, see the attached prospectus supplement. To the extent anything
in the prospectus supplement is inconsistent with the following, you should rely
on the information in the prospectus supplement.
This section summarizes the main provisions of the preferred securities and
the Declaration of Trust for each trust, but it does not describe all the
provisions. Consequently, this summary is qualified by reference to the full
text of the applicable Declaration of Trust. As stated above, upon an offering
of Securities we may amend and restate the applicable Declaration of Trust to
provide that a trust exists for the purpose of acquiring debt securities issued
by Owens Corning other than, or in addition to, Junior Subordinated Debentures.
Such other debt securities, if any, will be described in a prospectus supplement
and may also include debt securities that are senior or senior subordinated. We
have filed a form of Declaration of Trust as an exhibit to our registration
statement of which this prospectus forms a part.
This section uses terms that are defined in the Declaration of Trust for
each trust and the Subordinated Indenture. Unless we define those terms in this
prospectus, we intend them to have the meanings given them in the applicable
Declaration of Trust or the Subordinated Indenture, as the case may be.
General
Each trust will issue preferred securities and common securities under its
respective Declaration of Trust. The preferred securities and the common
securities will rank equally with one another, and all payments will be made on
the preferred securities and the common securities pro rata, except as described
in "--Priority over Common Securities".
Unless otherwise described in a prospectus supplement, we will issue Junior
Subordinated Debentures under the Subordinated Indenture as described in
"Description of the Junior Subordinated Debentures" and the Property Trustee
will hold legal title to the Junior Subordinated Debentures in trust for the
benefit of the holders of the preferred securities and the common securities. We
will also provide guarantees under the Guarantee Agreements as described in
"Description of Guarantees". Under the Guarantees, we will guarantee, on a
subordinated basis, the payment of distributions and other amounts payable on
the preferred securities, but only to the extent that the trusts do not have
funds on hand available to make those payments.
Distributions
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Distributions will accumulate on the preferred securities from their
original issue date at an annual rate provided in the applicable prospectus
supplement. The amount of distributions payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months.
The trusts will have no funds to distribute in respect of their preferred
securities other than the payments they receive from us in respect of the Junior
Subordinated Debentures. Consequently, if we defer or for any other reason fail
to make interest payments on the Junior Subordinated Debentures, the trusts will
not have funds available to pay distributions on the preferred securities.
Extension Periods
As long as no Event of Default under the Subordinated Indenture has occurred
and is continuing, we have the right under the Subordinated Indenture to defer
the payment of interest on the Junior Subordinated Debentures at any time. We
may do so for a period specified in the related prospectus supplement (each, an
"Extension Period"), provided that no Extension Period may extend beyond the
stated maturity of the Junior Subordinated Debentures. However, during an
Extension Period, interest will continue to accrue and, to the extent permitted
by applicable law, additional interest will accrue on each deferred interest
payment at an annual rate specified in the prospectus supplement. Before an
Extension Period ends, we may extend it further, subject to the limit described
above. When an Extension Period ends and we have paid all interest then accrued
and unpaid on the Junior Subordinated Debentures, we may begin a new Extension
Period, provided no Event of Default under the Subordinated Indenture has
occurred and is continuing. There is no limit on the number of Extension Periods
that we may begin.
If we elect to defer interest payments on the Junior Subordinated
Debentures, the trusts will defer the payment of distributions on the preferred
securities during the related Extension Period. However, during an Extension
Period, distributions will continue to accumulate on the liquidation amount of
the preferred securities and, to the extent permitted by applicable law, those
deferred distributions will accumulate additional distributions at an annual
rate specified in the prospectus supplement. The term "distribution", wherever
we use it in this section, includes any of these additional distributions.
During an Extension Period, holders of preferred securities may be required to
accrue interest income for U.S. federal income tax purposes.
Any distributions that would otherwise become due and payable during an
Extension Period will not become due and payable until the day after the
Extension Period ends. If any preferred securities become subject to redemption
on a redemption date that would otherwise occur during an Extension Period, that
Extension Period will end automatically on the next preceding day.
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We must give the Property Trustee and the holders of preferred securities
notice of our election to begin or extend an Extension Period. The notice must
be given at least one business day before the earlier of the following:
o the record date for the distribution date on which distributions would
have been payable but for the election, and
o the date, if any, on which notice of that record date must be given to
the New York Stock Exchange (or any other national securities exchange
or organization on which the preferred securities are then listed)
under the rules of that exchange or other organization.
We must notify the holders in the manner described below in "--Notices".
Extension Period Restrictions
The Subordinated Indenture provides that, during any Extension Period,
neither Owens Corning nor any of its subsidiaries may:
o declare or pay any dividend, liquidation payment or other distribution
on, or redeem, purchase or otherwise acquire, any capital stock of
Owens Corning (other than as a result of a reclassification of such
capital stock or the exchange or conversion of one class or series of
capital stock for another class or series), or
o pay any principal, interest or other amount in respect of, or redeem,
purchase or otherwise acquire, any debt securities (including
guarantees of such indebtedness) of Owens Corning that rank, in right
of payment in all respects, equally with or junior to the Junior
Subordinated Debentures,
except as described below.
The Subordinated Indenture restriction described above provides for significant
exceptions. We may continue to:
o pay any dividends or distributions in our Common Stock;
o redeem or purchase any rights pursuant to any stockholder protection
rights plan, including our 1996 Rights Agreement or any successor to
such agreement, and declare a dividend of such rights or the issuance
of stock under such plans;
o make any payment under any guarantee of preferred securities by Owens
Corning; and
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o receive guarantee payments from our subsidiaries.
Mandatory Redemption
Preferred securities will remain outstanding until the applicable trust
redeems them or distributes the related Junior Subordinated Debentures in
exchange for the preferred securities. Any redemption of preferred securities
must occur as described below. Any exchange distribution must occur as described
below in "--Exchange of Preferred Securities for Junior Subordinated
Debentures".
Redemption of Preferred Securities and Common Securities
If we repay or redeem Junior Subordinated Debentures at any time, whether at
their stated maturity, upon acceleration after an Event of Default under the
Subordinated Indenture or upon optional redemption, the applicable trust will be
obligated to redeem a Like Amount of related preferred securities and common
securities on the redemption date at the redemption price specified in the
prospectus supplement. In this context, "Like Amount" means preferred securities
and common securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Junior Subordinated Debentures to be
contemporaneously repaid or redeemed.
Repayment and Redemption of Junior Subordinated Debentures
The Junior Subordinated Debentures will mature on the date set forth in the
applicable prospectus supplement. We will also be entitled to redeem the Junior
Subordinated Debentures before their stated maturity, as follows:
o in whole at any time or in part from time to time, or
o in whole at any time within 90 days after the occurrence of a Tax
Event or an Investment Company Event, or
o as may be otherwise specified in the applicable prospectus supplement.
See "Description of the Junior Subordinated Debentures--Redemption" for the
definitions of "Tax Event" and "Investment Company Event".
The Subordinated Indenture provides that if a Tax Event has occurred and is
continuing and we do not elect to redeem the Junior Subordinated Debentures, we
may be required to pay certain Additional Sums on the Junior Subordinated
Debentures. The Subordinated Indenture provisions
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regarding repayment and redemption of the Junior Subordinated Debentures are
addressed in "Description of the Junior Subordinated Debentures--Redemption".
Redemption Procedures
The Property Trustee will give notice of any redemption of preferred
securities to the holders of preferred securities not less than 30 nor more than
60 days before the redemption date, unless the redemption results from
acceleration of the maturity of Junior Subordinated Debentures and the Property
Trustee cannot reasonably give this notice during this period. In that case, the
Property Trustee will give the notice as soon as practicable. In all cases, the
Property Trustee will give the notice of redemption in the manner described
below under "--Notices".
Payment of the redemption price for any preferred securities will be made
against surrender of the certificates representing those preferred securities
(or, in the case of any preferred securities held in book-entry form, in
accordance with the applicable procedures of the Depositary). However, any
distributions that are payable on a distribution date that falls on or before
the redemption date will be payable to the persons who are the holders of those
preferred securities on the record date for the distribution date.
If the Property Trustee gives a notice of redemption, it will irrevocably
deposit with the Depositary (in the case of any book-entry preferred securities)
or the Paying Agent (in the case of any non-book-entry preferred securities), on
the redemption date, funds sufficient to pay the redemption price for all
preferred securities to be redeemed on that date (to the extent the funds are
available to the Property Trustee). Upon the date of such deposit, all rights of
the holders of the preferred securities called for redemption will cease, except
the right of those holders to receive the redemption price (but without
additional interest on that amount), and those preferred securities will cease
to be outstanding. If payment of the redemption price for any preferred
securities called for redemption is improperly withheld or refused and not paid
either by a trust or by Owens Corning under the applicable Guarantee (or if
notice of redemption is not given as required), distributions on those preferred
securities will continue to accumulate to the date the redemption price is
actually paid.
If less than all the preferred securities and common securities are to be
redeemed on a redemption date, the aggregate liquidation amount of preferred
securities and common securities to be redeemed will be allocated pro rata
between the outstanding preferred securities and the outstanding common
securities, based upon their respective aggregate liquidation amounts. Not more
than 60 days prior to the redemption date, the Property Trustee will select the
preferred securities to be redeemed from among the outstanding preferred
securities not previously called for redemption. The Property Trustee may use
any method of selection that it deems to be fair
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and appropriate, including any method that involves the redemption of a portion
of the aggregate liquidation amount of any particular holder's preferred
securities.
Other Purchases of Preferred Securities
Subject to applicable law (including U.S. federal securities laws), we may
purchase outstanding preferred securities by tender, in the open market or by
private agreement. These purchases may occur at any time and from time to time
other than during an Extension Period.
Exchange of Preferred Securities for Junior Subordinated Debentures
Owens Corning will have the right at any time, in its sole discretion, to
elect to dissolve a trust. Upon such an election, and after liabilities of
creditors of the trust have been satisfied as provided by applicable law, the
Property Trustee will cause a Like Amount of Junior Subordinated Debentures to
be distributed in exchange for all the outstanding preferred securities and
common securities, in liquidation of such trust. In this context, "Like Amount"
means Junior Subordinated Debentures having an aggregate principal amount equal
to the aggregate liquidation amount of all outstanding preferred securities and
common securities. The exchange distribution will be made to the persons who are
the holders of record of the outstanding preferred securities and common
securities on the record date before the date fixed for the distribution by the
Property Trustee (the "Exchange Date"). See "--Liquidation Distribution upon
Dissolution".
Exchange Procedures
The Property Trustee will notify holders of preferred securities of any
exchange 30 to 60 days before the Exchange Date, in the manner described below
under "--Notices". On the Exchange Date, the following will occur:
o The preferred securities will cease to be outstanding.
o The Depositary or its nominee will receive certificates representing
Junior Subordinated Debentures to be distributed in exchange for all
preferred securities held in book-entry form, with those Junior
Subordinated Debentures also being in book-entry form.
o Any certificates representing preferred securities that are not held
in book-entry form will be deemed to represent a Like Amount of Junior
Subordinated Debentures, bearing accrued and unpaid interest in an
amount equal to the accumulated and unpaid distributions on those
preferred securities, until those certificates are presented to the
Paying Agent for exchange or transfer.
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o All rights of the holders of preferred securities will cease, except
for the right of holders of preferred securities in non-book-entry
form to receive certificates representing Junior Subordinated
Debentures in non-book-entry form, upon surrender of the certificates
representing their preferred securities, as described above.
Certain Tax Consequences
Under current U.S. federal income tax law and interpretations, and assuming,
as we expect, that neither trust will be classified as an association taxable as
a corporation, holders of the preferred securities would not be taxed if the
Junior Subordinated Debentures were distributed in exchange for preferred
securities. However, if a Tax Event were to occur and the trusts became taxable
on income received or accrued on the Junior Subordinated Debentures held by such
trusts, both the trusts and the holders of the preferred securities could be
taxed on the distribution of Junior Subordinated Debentures in exchange for
preferred securities.
Liquidation Distribution upon Dissolution
Under its Declaration of Trust, each trust will automatically dissolve upon
the occurrence of any of the following events, whichever occurs first:
o the expiration of its term of 55 years;
o certain events of bankruptcy, dissolution or liquidation of a holder
of common securities;
o upon the election by Owens Corning to terminate the trust, as
described above under "--Exchange of Preferred Securities for Junior
Subordinated Debentures";
o redemption of all the preferred securities and common securities as
described above under "--Mandatory Redemption--Redemption of Preferred
Securities and Common Securities"; or
o the entry of an order for the dissolution of the trust by a court of
competent jurisdiction.
If a trust dissolves while its preferred securities are outstanding, the
Property Trustee will liquidate the trust as quickly as possible. The Property
Trustee will do so by distributing a Like Amount of Junior Subordinated
Debentures to the holders of the preferred securities and common securities in
exchange for their securities, as described above under "--Exchange of Preferred
Securities for Junior Subordinated Debt Securities". However, the Property
Trustee will do so only after satisfying liabilities to creditors of the trust
as provided by applicable law and only if the Property Trustee determines that
an exchange distribution of this kind is practical.
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If the Property Trustee determines that an exchange distribution is not
practical, each holder of outstanding preferred securities will be entitled to
receive out of the assets of the trust available for distribution to holders,
after satisfaction of liabilities to creditors of the trust as provided by
applicable law, an amount equal to the Liquidation Distribution. The
"Liquidation Distribution" for any preferred securities will equal the aggregate
liquidation amount of those preferred securities plus all accrued and unpaid
distributions on them to the date of payment. If the Liquidation Distribution
for all outstanding preferred securities can be paid only in part because the
trust has insufficient assets available to pay it in full, the amounts payable
by the trust on the preferred securities will be paid pro rata, based on their
respective aggregate liquidation amounts.
On any liquidation of a trust, the holders of the common securities of such
trust will be entitled to receive distributions pro rata with the holders of the
preferred securities of such trust, unless a Trust Event of Default (as defined
below) has occurred and is continuing. In that case, the preferred securities
will have priority in right of payment over the common securities, as described
below under "--Priority over Common Securities".
Priority over Common Securities
Payment of distributions and the redemption price will be made in respect of
the preferred securities and the common securities pro rata, based on the
respective aggregate liquidation amounts of the two classes, except as follows.
If a Trust Event of Default (see the next subsection) has occurred and is
continuing, the respective trust will not pay any distribution or redemption
price, or make any Liquidation Distribution, in respect of its common securities
on any day unless any of the following have occurred:
o In the case of any distribution to be paid, all accumulated and unpaid
distributions on all outstanding preferred securities for all
distribution periods ending on or before the payment day have been
paid (or duly provided for) in cash.
o In the case of any redemption price to be paid, the redemption price
on all outstanding preferred securities called on or before the
payment day for redemption has been paid (or duly provided for) in
cash.
o In the case of a Liquidation Distribution to be made, the Liquidation
Distribution on all outstanding preferred securities has been made (or
duly provided for).
Whenever any distribution or redemption price is due and payable in respect of
the preferred securities, the Property Trustee will apply all available funds to
the payment of those amounts in full in cash before making any payment in
respect of the common securities. A trust will not
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make any payment or other distribution in respect of its common securities
(including on account of any purchase or other acquisition) while its preferred
securities are outstanding, other than distributions, the redemption price and
the Liquidation Distribution on the terms set forth in the Declaration of Trust.
If a Trust Event of Default occurs, the holders of the common securities
will be deemed to have waived all rights to act with respect to the Trust Event
of Default until all Trust Events of Default have been cured, waived or
otherwise eliminated. Until that time, the Property Trustee will act solely on
behalf of the holders of the preferred securities and not on behalf of the
holders of the common securities, and only the holders of the preferred
securities will have the right to direct the Property Trustee to act on their
behalf.
Notwithstanding the foregoing, the holders of common securities may act with
respect to a Trust Event of Default that results solely from a default in the
payment of any amount due and payable on the common securities, or from a
default or breach under any covenant in the applicable Declaration of Trust made
solely for the benefit of the holders of common securities (a "Common Securities
Default"), subject to the following conditions. The action of the common
securities holders must not adversely affect the interests of the holders of
preferred securities and no Trust Event of Default (and no event or condition
that after the passage of time or giving of notice would result in a Trust Event
of Default) that is not a Common Securities Default may have occurred and be
continuing.
Trust Events of Default
Any one of the following events will be a "Trust Event of Default" under
each Declaration of Trust. This will be the case regardless of the reason why
the event occurs, whether it is voluntary or involuntary, and whether or not it
results from operation of law, from any judgment, decree or order of any court
or from any order, rule or regulation of any administrative or governmental
body:
o the occurrence of an Event of Default under the Subordinated Indenture
(see "Description of the Junior Subordinated Debentures--Events of
Default");
o the default by the Property Trustee in the payment of any distribution
when it becomes due and payable and continuation of the default for 30
days;
o the default by the Property Trustee in the payment of any redemption
price when it becomes due and payable;
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o a material default or breach under any covenant or warranty of the
Issuer Trustees in a Declaration of Trust, and continuation of the
default or breach for 90 days after a notice of such default has been
given to such Issuer Trustees, which may be given only by the holders
of at least 25% in aggregate liquidation amount of the applicable
outstanding preferred securities, as provided under the Declaration of
Trust; or
o the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee if a successor Property Trustee has
not been appointed within 60 days.
Within five business days after learning about a Trust Event of Default, the
Property Trustee will notify the holders of the applicable trust's outstanding
preferred securities and common securities, the Administrative Trustees and
Owens Corning unless the Trust Event of Default has been cured or waived. Owens
Corning, as Depositor, and the Administrative Trustees are obligated to file
annually with the Property Trustee a certificate as to whether or not they are
in compliance with all the conditions and covenants applicable to them under the
applicable Declaration of Trust.
Enforcement Rights
If an Event of Default under the Subordinated Indenture occurs and is
continuing as to a series of Junior Subordinated Debentures, the Property
Trustee, as the holder of such Junior Subordinated Debentures, will have the
right to declare the principal of and premium and interest, if any, on the
Junior Subordinated Debentures, and any other amounts payable under the
Subordinated Indenture, due and payable and to enforce its other rights as a
creditor with respect to such Junior Subordinated Debentures.
This means, however, that as a holder of the related preferred securities,
you must rely on the Property Trustee to enforce its rights against Owens
Corning, subject to the following provisions.
Right to Direct Property Trustee's Actions
The holders of a majority in aggregate liquidation amount of outstanding
preferred securities of a trust will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to, or
exercising any trust or power conferred on, the Property Trustee under the
applicable Declaration of Trust, including the right to direct the Property
Trustee to exercise the remedies available to it as the holder of Junior
Subordinated Debentures. Accordingly, without the prior approval of the holders
of a majority in aggregate liquidation amount of the outstanding preferred
securities of such trust (or, in the case of any action that under the
Subordinated Indenture may be taken only with the prior consent of each affected
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holder of Junior Subordinated Debentures, without the prior consent of each
holder of outstanding preferred securities) the Property Trustee will not:
o direct the time, method or place of conducting any proceeding for any
remedy available to, or executing any trust or power conferred on, the
Debenture Trustee with respect to the Junior Subordinated Debentures.
o waive any past default that may be waived under the Subordinated
Indenture;
o exercise any right to rescind or annul a declaration that the
aggregate principal amount of the Junior Subordinated Debentures be
due and payable;
o consent to any amendment, modification or termination of the
Subordinated Indenture or the Junior Subordinated Debentures, if the
consent of any holder of such Junior Subordinated Debentures is
required under the Subordinated Indenture; or
o revoke any action previously authorized or approved by the holders of
the preferred securities except by, or with the subsequent
authorization or approval of, the holders of the preferred securities.
Before taking any of the actions described above, the Property Trustee must also
obtain an opinion of counsel, experienced in the following matters, to the
effect that the action will not cause the trust to be classified as an
association taxable as a corporation, or as other than a grantor trust, or cause
the Junior Subordinated Debentures to be treated as other than indebtedness of
Owens Corning, for U.S. federal income tax purposes. The Property Trustee will
notify the holders of preferred securities of any notice of default with respect
to the Junior Subordinated Debentures, in the manner described below under
"--Notices".
Any required approval of holders of preferred securities may be given by
written consent or at a meeting convened for that purpose. The Property Trustee
must cause a notice of any matter upon which holders of preferred securities are
to act by written consent, or of any meeting at which holders of preferred
securities are entitled to vote, to be given to the holders of preferred
securities in the manner described below under "--Notices".
Right of Direct Action
If an Event of Default under the Subordinated Indenture has occurred and is
continuing and is attributable to the failure of Owens Corning to pay any
interest or principal on Junior Subordinated Debentures when due and payable, a
holder of related preferred securities may begin a legal proceeding directly
against Owens Corning for enforcement of payment, to that
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holder, of the interest (including any Additional Sums) or principal due and
payable on Junior Subordinated Debentures having a principal amount equal to the
aggregate liquidation amount of that holder's preferred securities (a "Direct
Action"). We may not amend the Subordinated Indenture to remove the right of any
holder of outstanding preferred securities to bring a Direct Action without the
prior written consent of that holder. We will have the right under the
Subordinated Indenture to set off any payment made to a holder of preferred
securities in connection with a Direct Action. Except for the right to bring a
Direct Action, holders of preferred securities will not have the right to
exercise directly against Owens Corning any remedy available to a holder of
Junior Subordinated Debentures.
Right to Accelerate Junior Subordinated Debentures
The holders of certain minimum percentages of the outstanding preferred
securities will be entitled to exercise certain rights of the holders of the
Junior Subordinated Debentures under the Subordinated Indenture, if the holders
of Junior Subordinated Debentures do not do so. These rights include the right
to accelerate the maturity of the Junior Subordinated Debentures when an Event
of Default under the Subordinated Indenture has occurred and is continuing, to
cancel a declaration of acceleration of the Junior Subordinated Debentures and
to waive certain defaults under the Subordinated Indenture. See "Description of
the Junior Subordinated Debentures--Events of Default".
Mergers, Consolidations, Amalgamations and Replacements of the Trust
At the request of Owens Corning and without the consent of any holder of
preferred securities or any Issuer Trustee, a trust may merge with or into, or
consolidate or amalgamate with, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to, another person (each,
a "Trust Successor Transaction"), but only if that other person is a trust
organized as such under the laws of any state in the United States and only if
all the following requirements are met:
o The successor entity (if not the trust) either expressly assumes all
the obligations of the trust with respect to the applicable preferred
securities or substitutes for the preferred securities other
securities having substantially the same terms as the preferred
securities, provided that the successor securities rank at least as
high as the preferred securities rank with regard to the priority in
right of payment of all distributions and other amounts payable upon
liquidation, redemption and otherwise.
o The successor entity (if not the trust) has a purpose identical to
that of the trust.
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o A trustee of the successor entity (if not the trust) possessing the
same powers and duties as the Property Trustee is appointed to hold
the Junior Subordinated Debentures.
o The successor securities (if any) are listed, or will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the preferred securities are then listed.
o The Trust Successor Transaction does not cause the preferred
securities (or any successor securities) of such trust to be
downgraded by any nationally recognized statistical rating
organization that assigns ratings to the preferred securities.
o The Trust Successor Transaction does not adversely affect the material
rights, preferences and privileges of the holders of the preferred
securities (or any successor securities) of such trust in any material
respect.
o Prior to the Trust Successor Transaction, Owens Corning and the trust
have received an opinion from independent counsel to Owens Corning and
the trust, experienced in the following matters, to the effect that
(1) the Trust Successor Transaction will not adversely affect the
rights, preferences and privileges of the holders of the preferred
securities (or any successor securities) of such trust in any material
respect and (2) upon completion of the Trust Successor Transaction,
the trust or the successor entity, as applicable, will not be required
to register as an investment company under the Investment Company Act.
o Owens Corning (or any permitted successor), together with its
permitted assignees, holds all the common securities of the trust or
all comparable securities of the successor entity, as applicable, and
guarantees the obligations of the successor entity (if not the trust)
in respect of the preferred securities (or any successor securities)
of such trust at least to the extent provided by the Guarantees.
Notwithstanding the foregoing, a trust may not engage in a Trust Successor
Transaction that would cause the trust or the successor entity, as applicable,
to be classified as an association taxable as a corporation or as other than a
grantor trust, or would cause the Junior Subordinated Debentures or any
successor securities to be treated as other than indebtedness of Owens Corning,
for U.S. federal income tax purposes, unless it first obtains the consent of all
holders of its outstanding preferred securities. Except as permitted under the
provisions described above, a trust may not engage in any Trust Successor
Transaction.
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Voting Rights; Amendment of a Declaration of Trust
Except as provided below and under "Description of Guarantees--Amendments,
Assignment and Succession", and as otherwise required by law and each
Declaration of Trust, the holders of preferred securities will have no voting
rights.
The holders of a trust's common securities and the Property Trustee, without
the consent of the holders of the trust's preferred securities, may amend the
applicable Declaration of Trust from time to time to do any of the following:
o cure any ambiguity, or correct or supplement any provision that may be
inconsistent with any other provision, in the Declaration of Trust;
o make any provision with respect to matters or questions arising under
the Declaration of Trust that is not inconsistent with the other
provisions of the Declaration of Trust; and
o modify, eliminate or add to any provisions of the Declaration of Trust
to any extent that may be necessary to ensure that the trust will not
be taxable as a corporation or be classified as other than a grantor
trust, or to ensure that the Junior Subordinated Debentures are
treated as indebtedness of Owens Corning, for U.S. federal income tax
purposes, or to ensure that the trust will not be required to register
as an "investment company" under the Investment Company Act;
but only if the amendment does not adversely affect the interests of any holder
of preferred securities in any material respect and does not become effective
until notice of the amendment is given to the holders of preferred securities.
Owens Corning and the Issuer Trustees may also amend a Declaration of Trust
if:
o the holders of at least a majority in aggregate liquidation amount of
the outstanding preferred securities and common securities of the
trust consent to such amendment, and
o the Issuer Trustees receive an opinion of counsel to the effect that
the amendment or the exercise of any power granted to the Issuer
Trustees in accordance with the amendment will not result in the trust
being taxable as a corporation or being classified as other than a
grantor trust, or being required to register as an "investment
company" under the Investment Company Act or the Junior Subordinated
Debentures being treated as other than indebtedness of Owens Corning,
for U.S. federal income tax purposes.
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Notwithstanding the foregoing, each holder of preferred securities and common
securities of a trust must consent to an amendment of the Declaration of Trust
of such trust that:
o changes the amount or timing of any distribution or other payment, or
otherwise adversely affects the amount or timing of any distribution
or other payment required to be made as of a specified date, in
respect of that holder's preferred securities and common securities,
or
o restricts the right of that holder to institute suit for the
enforcement of any payment on those preferred securities and common
securities on or after the date on which it becomes due and payable.
For the purpose of any vote or consent of holders of preferred securities,
any preferred securities owned by Owens Corning, any Issuer Trustee or any
affiliate of Owens Corning or any Issuer Trustee will be treated as if they were
not outstanding.
Notices
Notices to be given to holders of preferred securities held in book-entry
form will be given only to the Depositary in accordance with its applicable
procedures. Notices to be given to holders of preferred securities not held in
book-entry form may be given by mail to the respective addresses of the holders
as they appear in the Security register. Neither the failure to give any notice
to a particular holder, nor any defect in a notice given to a particular holder,
will affect the sufficiency of any notice given to another holder.
Payment and Paying Agency
Payments in respect of any preferred securities held in book-entry form will
be made only to the Depositary or its nominee in accordance with its applicable
procedures. Payments in respect of any preferred securities not held in
book-entry form will be made at the offices of any Paying Agent. However, at the
option of Owens Corning, distributions payable on non-book-entry preferred
securities may be paid by check mailed to the persons entitled to receive them,
at their addresses appearing on the Security register on the relevant record
date.
The Property Trustee will initially serve as the Paying Agent. From time to
time, the Property Trustee may select one or more firms to act as the Paying
Agent or as co-Paying Agents. Each Paying Agent must be a bank or trust company
acceptable to the Administrative Trustees. A Paying Agent will be permitted to
resign as Paying Agent upon 30 days' written notice to the Property Trustee and
Owens Corning. In the event there is no Paying Agent, the Property Trustee will
appoint a firm to act as Paying Agent.
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If any distribution, redemption price or other amount is payable in respect
of the preferred securities on a day that is not a business day, the payment may
be made on the next succeeding business day unless that business day is in a
different calendar year, in which case the payment may be made on the next
preceding business day. Each payment made on the next succeeding or preceding
business day as described above may be made with the same force and effect as if
made on the day on which the payment is originally payable.
Any moneys deposited with the Property Trustee or any Paying Agent, or then
held in trust by Owens Corning or a trust, for the payment of any amount due and
payable on any preferred securities, and remaining unclaimed for two years after
the amount has become due and payable, will, at the request of Owens Corning, be
repaid to Owens Corning. Thereafter, the holders of those preferred securities
will look, as a general unsecured creditor, only to Owens Corning for payment on
the preferred securities.
Registrar and Transfer Agent
The Property Trustee will act as registrar and transfer agent for the
preferred securities. The Property Trustee will exchange and register transfers
of preferred securities without charge by or on behalf of each trust, but will
require payment of any tax or other governmental charge that may be imposed in
connection with the exchange or transfer. If any preferred securities have been
called for redemption, the Property Trustee may refuse to register any transfer
of those preferred securities during a period beginning 15 days before the
redemption date.
Book-Entry Preferred Securities
The preferred securities of each trust will be issued in the form of one or
more Global Securities. See "Book-Entry Securities" for additional information
about your limited rights as the beneficial owner of a Global Security.
Regarding the Issuer Trustees
Removal of Issuer Trustees
Unless an Event of Default under the Subordinated Indenture has occurred and
is continuing, any Issuer Trustee may be removed at any time by Owens Corning.
If an Event of Default with respect to any Junior Subordinated Debentures held
by a trust has occurred and is continuing, the Property Trustee and the Delaware
Trustee may be removed at such time by the holders of a majority in liquidation
amount of the outstanding related preferred securities of such trust. In no
event will the holders of preferred securities have the right to vote to
appoint, remove or replace the Administrative Trustees, which voting rights are
vested exclusively in Owens Corning as the
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holder of the common securities. No resignation or removal of an Issuer Trustee
and no appointment of a successor trustee will be effective until the acceptance
of appointment by the successor trustee in accordance with the provisions of the
applicable Declaration of Trust.
Co-trustees and Separate Property Trustee
Unless an Event of Default with respect to the preferred securities of a
trust shall have occurred and be continuing, Owens Corning will have the power
to appoint one or more persons as a co-trustee of such trust's property, to act
jointly with the Property Trustee, for the purpose of complying with the TIA or
with any other local law applicable to the trust's property. Such co-trustee
could also act as a separate trustee of such property. Owens Corning will have
the power to vest in such co-trustee any property, title, right or power deemed
necessary or desirable subject only to the limitations of the applicable
Declaration of Trust. If an Event of Default with respect to any Junior
Subordinated Debentures has occurred or is continuing, the Property Trustee
alone will have the power to appoint a co-trustee.
Merger, Consolidation, Etc.
If an Issuer Trustee merges, consolidates with or converts into, another
person, or another person succeeds to all or substantially all the corporate
trust business of that Issuer Trustee, that other person will be the successor
of that Issuer Trustee under each Declaration of Trust, but only if that other
person is qualified and eligible to be an Issuer Trustee.
Duties of Property Trustee
The Property Trustee undertakes to perform only those duties that are
specifically set forth in a Declaration of Trust, unless a Trust Event of
Default is continuing. In that event, the Property Trustee must exercise the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the Property
Trustee will have no obligation to exercise any of the powers vested in it by a
Declaration of Trust at the request of any holder of preferred securities unless
it is offered reasonable indemnity against the costs, expenses and liabilities
that it might incur as a result. If no Trust Event of Default is continuing and
the Property Trustee must decide between alternative causes of action or
construe ambiguous provisions in a Declaration of Trust, or is unsure of the
application of any provision of a Declaration of Trust, and the matter is not
one on which the holders of preferred securities and common securities are
entitled under the Declaration of Trust to vote, then the Property Trustee may
take any action that it deems to be advisable and in the best interests of the
holders of the preferred securities and common securities and will have no
liability except for its own bad faith, negligence or willful misconduct.
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Miscellaneous
Each Declaration of Trust authorizes and directs the Administrative Trustees
and the Property Trustee to conduct the affairs of and to operate the trust so
that (1) the trust will not be required to register as an "investment company"
under the Investment Company Act or be classified as an association taxable as a
corporation or as other than a grantor trust for U.S. federal income tax
purposes and (2) the Junior Subordinated Debentures will be treated as
indebtedness of Owens Corning for U.S. federal income tax purposes. Each
Declaration of Trust authorizes the Property Trustee and the holders of their
common securities to take any action, not inconsistent with applicable law, the
certificate of trust of the trust or the applicable Declaration of Trust, that
they (or any successor entity) determine in their discretion to be necessary or
desirable for these purposes, as long as the action does not adversely affect
the interests of the holders of their preferred securities in any material
respect. Holders of preferred securities will have no preemptive or similar
rights.
Governing Law
Each Declaration of Trust and the preferred securities and common securities
provide that they are to be governed by and construed in accordance with the
laws of Delaware.
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DESCRIPTION OF GUARANTEES
This section summarizes the main provisions of the Guarantees, but it does
not describe all the provisions. Consequently, this summary is qualified by
reference to the full text of the Guarantees. We have filed a form of the
Guarantee as an exhibit to the registration statement of which this prospectus
forms a part.
This section uses terms that are defined in the Guarantees. Unless we define
those terms in this section, we intend them to have the meanings given them in
the Guarantees.
General
We will execute a Guarantee when the preferred securities of a trust are
issued. Each guarantee will be qualified as an indenture under the TIA. The
Guarantee Trustee will hold the Guarantees for the benefit of the holders of the
preferred securities.
Under each Guarantee, we will irrevocably agree to pay in full, on a
subordinated basis and to the extent described below, to the holders of the
related preferred securities, the guarantee payments as and when due, regardless
of any defense, right of set-off or counterclaim that the applicable trust may
have or assert other than the defense of payment. The following payments in
respect of any preferred securities, to the extent not paid by or on behalf of
the trust, are guarantee payments:
o any accumulated and unpaid distributions required to be paid on the
preferred securities, to the extent that the trust has funds legally
and immediately available to pay them;
o any redemption price, including accumulated and unpaid distributions
to the date of redemption, required to be paid on the preferred
securities, to the extent that the trust has funds legally and
immediately available to pay it; and
o upon a voluntary or involuntary termination, winding-up or liquidation
of such trust (unless the related Junior Subordinated Debentures are
distributed to holders of the preferred securities in exchange for
those securities), the lesser of (1) the payments made on liquidation
for the preferred securities and (2) the amount of assets of the trust
remaining available for distribution to holders of its preferred
securities after satisfaction of liabilities to creditors of the trust
as required by applicable law.
We may satisfy our obligation to make a guarantee payment by paying the required
amounts directly to the holders of the preferred securities or by causing the
applicable trust to pay such amounts to the holders.
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We will be required to make payments under a Guarantee only to the extent
that a trust has funds sufficient to make payments in respect of its obligations
under the related preferred securities. If and to the extent we do not make
payments on the Junior Subordinated Debentures, the trusts will not have funds
available to make payments on the preferred securities. However, through the
Guarantee, the Declaration of Trust, the Junior Subordinated Debentures, the
Subordinated Indenture and the related Expense Agreement, taken together, we
have fully, irrevocably and unconditionally guaranteed each trust's obligations
under the preferred securities. See "Relationship Among Preferred Securities,
Junior Subordinated Debentures and the Guarantees".
Status of the Guarantees
Each Guarantee will be a general unsecured obligation of Owens Corning, that
will rank:
o Subordinate and junior in right of payment to all liabilities of Owens
Corning, including all Senior Debt and the Junior Subordinated
Debentures but excluding those liabilities of Owens Corning that rank
equally or subordinate by their terms,
o equally with each other Guarantee, the guarantee by Owens Corning of
certain payments required to be made in respect of the Convertible
Subordinated Debentures, with the most senior preferred stock or
preference stock issued by Owens Corning now or in the future and with
any guarantee entered into by Owens Corning, now or in the future,
with respect to preferred stock or preference stock of any affiliate
of Owens Corning, and
o senior to Common Stock and any other class or series of capital stock
issued by Owens Corning or any of its affiliates which by its express
terms ranks junior to such Guarantee in the payment of dividends and
amounts on liquidation, dissolution and winding-up.
On the bankruptcy, liquidation or winding-up of Owens Corning, its obligations
under each Guarantee will rank junior to all its other liabilities. Therefore,
funds may not be available for payment under the Guarantees.
Each Guarantee will be held for the benefit of the holders of the related
preferred securities. Each Guarantee will not be discharged except by payment of
the guarantee payments in full to the extent not paid by the applicable trust or
upon distribution to the holders of the preferred securities of Junior
Subordinated Debentures. The Guarantees do not place any limitation on the
amount of additional Senior Debt that may be incurred by Owens Corning. We
expect from time to time to incur additional indebtedness constituting Senior
Debt.
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Amendments, Assignment and Succession
A Guarantee may not be amended without the prior approval of the holders of
a majority in the aggregate liquidation amount of the related outstanding
preferred securities, other than in ways that do not adversely affect the rights
of holders of the preferred securities in any material respect (in which case no
approval will be required). The manner of obtaining any such approval will be
similar to the manner in which any approval to amend a Declaration of Trust may
be obtained. See "Description of the Preferred Securities--Voting Rights;
Amendment of the Declaration of Trust".
We may not assign our obligations under a Guarantee without obtaining the
approval of the holders required to amend that agreement. However, any permitted
successor to Owens Corning's obligations under the Subordinated Indenture will
also succeed to its obligations under each Guarantee. See "Description of the
Junior Subordinated Debentures--Consolidation, Merger, Sale of Assets and Other
Transactions". The Guarantees will bind Owens Corning's successors, assigns,
receivers, trustees and representatives and will inure to the benefit of the
holders of the applicable outstanding preferred securities.
Events of Default
An event of default under each Guarantee will occur if we fail to make any
guarantee payment when obligated to do so, or if we fail to perform any other
obligation and the default remains unremedied for 30 days. The holders of a
majority in aggregate liquidation amount of the related outstanding preferred
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee or
to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the applicable Guarantee.
The Guarantees will guarantee payment and not collection. This means that
any holder of outstanding preferred securities may begin a legal proceeding
directly against Owens Corning to enforce its rights under a Guarantee without
first beginning a legal proceeding against the applicable trust, the Guarantee
Trustee or any other party.
If the Guarantee Trustee fails to enforce such Guarantee, any record holder
of preferred securities to which such Guarantee relates may institute a legal
proceeding directly against Owens Corning to enforce the Guarantee Trustee's
rights under such Guarantee without first instituting a legal proceeding against
the applicable trust, the Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if Owens Corning has failed to make a guarantee
payment under a Guarantee, a record holder of preferred securities to which such
Guarantee relates may directly institute a proceeding against Owens Corning for
enforcement of
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such Guarantee for such payment to the record holder of the preferred securities
to which such Guarantee relates of the principal of or interest on the
applicable Junior Subordinated Debentures on or after the respective due dates
specified in the Junior Subordinated Debentures, 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 Guarantee relates. Owens Coring has
waived any right or remedy to require that any action be brought first against
the applicable trust or any other person or entity before proceeding directly
against Owens Corning. The record holder in the case of the issuance of one or
more global preferred securities certificates will be The Depositary Trust
Company acting at the direction of the beneficial owners of the preferred
securities.
Owens Corning, as guarantor, will be obligated to file annually with the
Guarantee Trustee a certificate as to its compliance with all the conditions and
covenants applicable to it under the Guarantees.
Regarding the Guarantee Trustee
The Guarantee Trustee undertakes to perform only those duties that are
specifically set forth in the Guarantees, except that, if Owens Corning were to
default under a Guarantee, it must exercise the same degree of care and skill as
a prudent person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the Guarantee Trustee is under no obligation to
exercise any of the powers vested in it by a Guarantee at the request of any
holder of preferred securities unless it is offered reasonable indemnity against
the costs, expenses and liabilities that it might incur as a result.
Termination of the Guarantees
A Guarantee will terminate and be of no further force or effect when:
o the guarantee payments have been paid in full by Owens Corning, the
applicable trust or both; or
o the related Junior Subordinated Debentures are distributed to the
holders of the applicable preferred securities in exchange for their
securities.
Until that time, the Guarantees will remain in full force and effect. In
addition, a Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of related preferred securities must
restore payment of any sums paid to it under the preferred securities or the
Guarantee.
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Governing Law
The Guarantees will be governed by and construed in accordance with the laws
of the State of New York.
Expense Agreements
Pursuant to the Expense Agreement entered into by Owens Corning under each
Declaration of Trust (each, an "Expense Agreement"), we will irrevocably and
unconditionally guarantee to each person or entity to whom a trust becomes
indebted or liable, the full payment of any costs, expenses or liabilities of
such trust, other than obligations of such trust to pay to the holders of any
preferred securities or other similar interests in such trust the amounts due
such holders pursuant to the terms of the preferred securities or such other
similar interests, as the case may be.
RELATIONSHIP AMONG PREFERRED SECURITIES, JUNIOR SUBORDINATED
DEBENTURES, GUARANTEES AND EXPENSE AGREEMENTS
Full and Unconditional Guarantees
Taken together, our obligations under each Declaration of Trust, the Junior
Subordinated Debentures, the Subordinated Indenture, the Guarantees and the
Expense Agreements provide a full, irrevocable and unconditional guarantee of
each trust's obligations under the related preferred securities. No single
document standing alone or operating in conjunction with fewer than all the
other documents provides this guarantee. It is only the combined operation of
these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the trust's obligations under the preferred
securities.
If and to the extent that we do not make payments on the Junior Subordinated
Debentures, the trusts will not have funds available for payments on the
preferred securities. The Guarantees will not apply to payment of any amounts
due on the preferred securities when the trusts do not have available funds to
pay those amounts. In that event, the remedy of a holder of preferred securities
is to exercise its right of direct action--that is, to begin a legal proceeding
directly against Owens Corning for enforcement of Owens Corning's obligations
under the Junior Subordinated Debentures having a principal amount equal to the
liquidation amount of the preferred securities held by the holder.
If we make payment on the Junior Subordinated Debentures and a trust has
funds available to make payments on the preferred securities but fails to do so,
a holder of preferred securities may
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begin a legal proceeding against Owens Corning to enforce Owens Corning's
obligations under the related Guarantee to make these payments. In the event
that the trust receives payments on the Junior Subordinated Debentures, but
these funds are unavailable for payment on the preferred securities because of
claims made by creditors of the trust, Owens Corning would be obligated under
the related Expense Agreement to pay those claims.
The obligations of Owens Corning under the Junior Subordinated Debentures
are junior in right of payment to all Senior Debt of Owens Corning. They are
subordinated in the manner described in "Description of the Junior Subordinated
Debentures--Subordination". The obligations of Owens Corning under the
Guarantees and the Expense Agreements are subordinated in right of payment to
all liabilities of Owens Corning (other than similar guarantees and expense
agreements), including liabilities to trade creditors, and will rank equally
with the most senior class of preferred stock that Owens Corning may issue.
Sufficiency of Payments
As long as payments are made when due on the related Junior Subordinated
Debentures, those payments should be sufficient to fund distributions and other
amounts payable on the preferred securities, primarily because:
o The aggregate principal amount of the related Junior Subordinated
Debentures will equal the aggregate liquidation amount of the
preferred securities and the common securities.
o The interest rate, interest payment dates and other payment dates for
the related Junior Subordinated Debentures will match the distribution
rate, distribution dates and other payment dates for the preferred
securities.
o Each Expense Agreement provides that we will pay any and all costs,
expenses and liabilities of the applicable trust, other than the
trust's obligations under the preferred securities and common
securities.
o Each Declaration of Trust provides that the trust will not engage in
any activity that is not consistent with the limited purposes of the
trust.
Notwithstanding anything to the contrary in the Subordinated Indenture, we
have the right to set off any payment we make under a Guarantee in respect of
the preferred securities against any payment we would otherwise be required to
make under the Subordinated Indenture in respect of the related Junior
Subordinated Debentures.
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Enforcement Rights of Holders of Preferred Securities
A holder of preferred securities may begin a legal proceeding directly
against Owens Corning to enforce its right of direct action under the
Subordinated Indenture without first beginning a legal proceeding against a
trust, the Property Trustee or any other party. A holder of preferred securities
may also begin a legal proceeding directly against Owens Corning to enforce its
rights under a Guarantee without first instituting a legal proceeding against
the Guarantee Trustee, the related trust or any other party.
A default or event of default under any Senior Debt of Owens Corning would
not be a default with respect to the preferred securities or the Junior
Subordinated Debentures. However, in the event of a payment default under, or
acceleration of, any Senior Debt of Owens Corning, the subordination provisions
of the Subordinated Indenture, the Guarantees and the Expense Agreements provide
that no payments may be made in respect of the Junior Subordinated Debentures,
the Guarantees or the Expense Agreements until the Senior Debt has been paid in
full or any payment default under that debt has been cured or waived. See
"Description of the Junior Subordinated Debentures--Subordination".
Limited Purpose of Trust
The preferred securities evidence a preferred undivided beneficial interest
in the assets of the related trust, and the trusts exist solely to issue and
sell the preferred securities and common securities, invest the sale proceeds in
Junior Subordinated Debentures (or, if so provided in an amended and restated
declaration of trust, other debt securities) and engage only in such other
activities as may be necessary or incidental to those activities. A principal
difference between the rights of a holder of preferred securities against a
trust and those of a holder of Junior Subordinated Debentures against Owens
Corning is that a holder of Junior Subordinated Debentures is entitled to
receive from Owens Corning all amounts payable on the preferred securities,
while a holder of preferred securities is entitled to receive from the related
trust (or from Owens Corning under the related Guarantee) amounts payable on the
Junior Subordinated Debentures only if and to the extent the trust has funds
available to pay those amounts.
Rights Upon Termination
Upon any voluntary or involuntary dissolution of a trust, the holders of
related preferred securities will be entitled to receive a Like Amount of
related Junior Subordinated Debentures in exchange for their preferred
securities, subject to prior satisfaction of liabilities to creditors of the
trust as required by applicable law. If the Property Trustee determines that a
distribution of Junior Subordinated Debentures is not practical, the holders of
the preferred securities will be entitled to receive the Liquidation
Distribution out of the assets held by the trust after satisfaction
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of those liabilities. See "Description of the Preferred Securities--Liquidation
Distribution upon Dissolution".
Upon any voluntary or involuntary liquidation or bankruptcy of Owens
Corning, the Property Trustee, as registered holder of Junior Subordinated
Debentures, would be a subordinated creditor of Owens Corning, junior in right
of payment to all Senior Debt as set forth in the Subordinated Indenture.
However, the Property Trustee would be entitled to receive payment in full of
all amounts payable with respect to the Junior Subordinated Debentures before
any holders of Owens Corning capital stock receive payments or distributions.
In the light of the effective guarantee provided by the combined operation
of the documents described above and the subordinated status of the obligations
they evidence, the positions of a holder of preferred securities and a holder of
Junior Subordinated Debentures, relative to other creditors and to stockholders
of Owens Corning, in the event of liquidation or bankruptcy of Owens Corning,
should be substantially the same.
PLAN OF DISTRIBUTION
We may sell any of the Securities in any one or more of the following ways
from time to time: (1) through agents; (2) to or through underwriters; (3)
through dealers; and (4) directly by Owens Corning or, in the case of preferred
securities, by the trusts to purchasers.
The Prospectus Supplement with respect to the Securities will set forth the
terms of the offering of the Securities, including the name or names of any
underwriters, dealers or agents; the purchase price of the Securities and the
proceeds to us and/or a trust from such sale; any underwriting discounts and
commissions or agency fees and other items constituting underwriters' or agents'
compensation; any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchange on which
such Securities may be listed.
We (directly or through agents) may sell, and the underwriters may resell,
the Securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
We may sell Common Stock in one or more transactions on the New York Stock
Exchange or in negotiated transactions or a combination of such methods of sale,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
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Offers to purchase Securities may be solicited by agents designated by us
from time to time. Any such agent involved in the offer or sale of the
Securities in respect of which this prospectus is delivered will be named, and
any commissions payable by us and/or a trust to such agent will be set forth in
the applicable prospectus supplement. Unless otherwise indicated in such
prospectus supplement, any such agent will be acting on a reasonable best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act, of the
Securities so offered and sold.
If Securities are sold by means of an underwritten offering, Owens Corning
and/or the applicable trust will execute an underwriting agreement with an
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transaction, including commissions,
discounts and any other compensation of the underwriters and dealers, if any,
will be set forth in the applicable prospectus supplement which will be used by
the underwriters to make resales of the Securities in respect of which this
prospectus is delivered to the public. If underwriters are utilized in the sale
of the Securities, the Securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriter at the time of sale. Securities may be
offered to the public either through underwriting syndicates represented by
managing underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the Securities, unless
otherwise indicated in the prospectus supplement, the underwriting agreement
will provide that the obligations of the underwriters are subject to certain
conditions precedent and that the underwriters with respect to a sale of
Securities will be obligated to purchase all such Securities of a series if any
are purchased.
If a dealer is utilized in the sales of the Securities, Owens Corning and/or
the applicable trust will sell such Securities to the dealer as principal. The
dealer may then resell such Securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
Securities so offered and sold. The name of the dealer and the terms of the
transaction will be set forth in the prospectus supplement relating to such
sale.
Offers to purchase Securities may be solicited directly by us and/or the
applicable trust and such sale may be made by us and/or the applicable trust
directly to institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with respect to any resale
thereof. The terms of any such sales will be described in the prospectus
supplement relating thereto.
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Agents, underwriters and dealers may be entitled under relevant agreements
to indemnification or contribution by us and/or the applicable trust against
certain liabilities, including liabilities under the Securities Act.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, Owens Corning and its subsidiaries in the
ordinary course of business.
Owens Corning or a trust, as applicable, may grant to the underwriters
options to purchase additional Securities, to cover over-allotments, if any, at
the initial public offering price (with additional underwriting commissions or
discounts) specified in the applicable prospectus supplement. The terms of any
over-allotment option granted by Owens Corning or a trust will be described in
the applicable prospectus supplement.
Securities may also be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more remarketing firms acting as principals for their own accounts or
as agents for us and/or the applicable trust. Any remarketing firm will be
identified and the terms of its agreement, if any, with its compensation will be
described in the applicable prospectus supplement. Remarketing firms may be
deemed to be underwriters, as such term is defined in the Securities Act, in
connection with the Securities that are remarketed. Remarketing firms may be
entitled under agreements which may be entered into with us and/or the
applicable trust against certain civil liabilities, including liabilities under
the Securities Act, and may be customers of, engage in transactions with or
perform services for Owens Corning and its subsidiaries in the ordinary course
of business.
If so indicated in the applicable prospectus supplement, Owens Corning
and/or the applicable trust may authorize agents, underwriters or dealers to
solicit offers by certain types of institutions to purchase Securities from
Owens Corning and/or the applicable trust at the public offering prices set
forth in the applicable prospectus supplement pursuant to delayed delivery
contracts ("Contracts") providing for payment and delivery on a specified date
or dates in the future. A commission indicated in the applicable prospectus
supplement will be paid to underwriters, dealers and agents soliciting purchases
of Securities pursuant to Contracts accepted by us and/or the applicable trust.
If so indicated in the applicable prospectus supplement, in connection with
the offering of any Securities issued by any trust, convertible or exchangeable
into common securities, Owens Corning may be offered the opportunity to purchase
such Securities concurrently with a public offering at the public offering price
less any applicable underwriting discounts and commissions.
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LEGAL OPINIONS
The validity of the Securities will be passed upon for Owens Corning and the
trusts by Shearman & Sterling, New York, New York. Certain matters of Delaware
law with respect to the validity of the preferred securities will be passed upon
for the trusts by Morris, Nichols, Arsht & Tunnell, special Delaware counsel to
Owens Corning. The validity of the Securities will be passed upon for the
underwriters, dealers or agents, if any, by counsel to be named in the
applicable prospectus supplement.
EXPERTS
The financial statements and schedules incorporated in this Prospectus by
reference to the Annual Report of Owens Corning on Form 10-K for the year ended
December 31, 1998 have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated in this Prospectus by reference in reliance upon the authority of
such firm as experts in giving such reports.
The consolidated financial statements of Owens Corning included in any
subsequent Annual Report of Owens Corning on Form 10-K and incorporated by
reference in this Prospectus will have been examined by the independent public
accountants whose report thereon appears in such Annual Report. Such
consolidated financial statements of Owens Corning shall be deemed to be
incorporated herein from the date of filing the applicable report on Form 10-K
in reliance on the reports of such independent public accountants, given on the
authority of such firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
issuance and distribution of the securities being registered. Except for the
Securities and Exchange Commission filing fee, all amounts shown are estimates:
Registration Fee............................................... $125,100
Rating Agency Fees............................................. *
Accountants' Fees and Expenses................................. *
Counsel's Fees and Expenses.................................... *
Blue Sky Fees and Expenses (including counsel's fees).......... *
Printing and Engraving Expenses................................ *
Fees and Expenses of Trustees.................................. *
New York Stock Exchange Listing Fee............................ *
Transfer Agent and Registrar................................... *
Miscellaneous.................................................. *
---------
Total.......................................................... $ *
=========
* To be filed by amendment.
Item 15. Indemnification of Directors and Officers.
A. Reference is made to Section 102(b)(7) of the General Corporation
Law of the State of Delaware as to the limitation of personal liability of
directors and officers and to Section 145 of the General Corporation Law of the
State of Delaware as to indemnification by the Company of its directors and
officers. Delaware law provides that a corporation may eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director: (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) for wilful or negligent payments
of unlawful dividends or unlawful stock repurchases or redemptions; or (iv) for
any transaction from which the director derived an improper personal benefit.
Delaware law also provides that a corporation may indemnify its directors,
officers, employees or agents against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with any action, suit or proceeding brought by third
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parties to which they may be made parties by reason of their being or having
been directors, officers, employees or agents, and shall so indemnify directors
and officers only if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful.
B. Article FOURTEENTH of our Certificate of Incorporation, as amended,
provides as follows with respect to the indemnification of our directors and
officers and the limitation of personal liability of its directors and officers:
FOURTEENTH: The corporation shall indemnify to the full extent
authorized or permitted by law any person made, or threatened to be made, a
party to any action or proceeding (whether civil or criminal or otherwise) by
reason of the fact that he, his testator or intestate, is or was a director or
officer of the corporation or by reason of the fact that such director or
officer, at the request of the corporation, is or was serving any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, in any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No director of the corporation shall be personally liable to
the corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director. Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law, or (iv) for any transaction from
which such director derived an improper personal benefit. No amendment to or
repeal of this Article FOURTEENTH shall apply to or have any effect on the
liability or alleged liability of any director of the corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment.
C. Article IX of our By-Laws provides as follows with respect to the
indemnification of our directors and officers and of certain other persons:
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall, to the fullest extent permitted by applicable
law from time to time in effect (but, in the case of any amendment of such law,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), indemnify any and all persons who may serve or
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who have served at any time as directors or officers of the Corporation, or who
at the request of the Corporation may serve or at any time have served as
directors, officers, employees or agents of another corporation (including
subsidiaries of the Corporation) or of any partnership, joint venture, trust or
other enterprise, and any directors or officers of the Corporation who at the
request of the Corporation may serve or at any time have served as agents or
fiduciaries of an employee benefit plan of the Corporation or any of its
subsidiaries, from and against any and all of the expenses, liabilities or other
matters referred to in or covered by law whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent. The Corporation may also indemnify any and all other persons whom it
shall have power to indemnify under any applicable law from time to time in
effect to the extent permitted by such law. The indemnification provided by this
Article IX shall not be deemed exclusive of any other rights to which any person
may be entitled under any provision of the Certificate of Incorporation, other
By-Law, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, and shall be contract rights and continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
If a claim under this Article IX is not paid in full by the Corporation
within sixty days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the director or officer may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the director or officer shall be entitled to be paid
also the expense of prosecuting or defending such suit. In (i) any suit brought
by the director or officer to enforce a right to indemnification hereunder (but
not in a suit brought by the director or officer to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the director or officer has not met any applicable
standard for indemnification set forth in the Delaware General Corporation Law.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the director or
officer is proper in the circumstances because the director or officer has met
the applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board, its
independent legal counsel, or its stockholders) that the director or officer has
not met such applicable standard of conduct, shall create a presumption that the
director or officer has not met the applicable standard of conduct or, in the
case of such a suit brought by the director or officer, be a defense to such
suit. In any suit brought by the director or officer to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the
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Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the director or officer is not entitled
to be indemnified, or to such advancement of expenses, under this Article IX or
otherwise shall be on the Corporation.
The indemnification provided in this Article IX shall inure to each
person referred to herein, whether or not the person is serving in any of the
enumerated capacities at the time such expenses (including attorneys' fees),
judgments, fines or amounts paid in settlement are imposed or incurred, and
whether or not the claim asserted against him is based on matters which antedate
the adoption of this Article IX. None of the provisions of this Article IX shall
be construed as a limitation upon the right of the Corporation to exercise its
general power to enter into a contract or understanding of indemnity with a
director, officer, employee, agent or any other person in any proper case not
provided for herein. Each person who shall act or have acted as a director or
officer of the Corporation shall be deemed to be doing so in reliance upon such
right of indemnification.
For purposes of this Article IX, the term "Corporation" shall include
constituent corporations referred to in subsection (h) of Section 145 of the
General Corporation Law of the State of Delaware (or any similar provision of
applicable law at the time in effect).
D. We have entered into an Indemnity Agreement with each member of our
Board of Directors. Each Indemnity Agreement provides, among other things, that
in the event the director was, is or becomes a party, witness or other
participant in a Claim (as defined in the Indemnity Agreement) by reason of (or
arising in part out of) an Indemnifiable Event (as defined in the Indemnity
Agreement), we are required to indemnify the director to the fullest extent
authorized by our By-Laws as in effect on the date of the Indemnification
Agreement notwithstanding any subsequent amendment, repeal or modification of
such By-Laws, against any and all expenses, judgments, fines, penalties and
amounts paid in settlement of such Claim. The Indemnity Agreement requires that
we advance to the director all expenses relating to Claims and contains an
undertaking by the director to reimburse us for any such advances that are
subsequently determined in a final judicial determination to have been
impermissible under applicable law.
E. Our directors and officers are covered by insurance policies,
maintained by us at our expense, insuring the directors and officers against
certain liabilities which might be incurred by them in such capacities,
including liabilities arising under the Securities Act of 1933.
II-4
<PAGE>
Item 16. Exhibits.
The following Exhibits are filed as part of this Registration Statement:
Exhibit No. Exhibit
1.1 Form of Underwriting Agreement for the Debt Securities.*
1.2 Form of Underwriting Agreement for the Preferred Stock.*
1.3 Form of Underwriting Agreement for the Common Stock.*
1.4 Form of Underwriting Agreement for the Junior Subordinated
Debentures.*
1.5 Form of Underwriting Agreement for the Preferred
Securities.*
4.1 Form of Indenture dated as of May 5, 1997, between Owens
Corning and The Bank of New York (incorporated by reference
to Exhibit 4.5.1 to our registration statement on Form S-3
(File No. 333-47961) dated March 13, 1998.)**
4.2 Form of Subordinated Indenture.*
4.3 Specimen Certificate of our Common Stock (incorporated by
reference to Exhibit 99 to our Annual Report on Form 10-K
(File No. 1-3660) for the fiscal year ended December 31,
1996).**
4.4 Form of Warrant Agreement.*
4.5 Form of Stock Purchase Contract Agreement (including as
Exhibit A the form of the Security Certificate).**
4.6.1 Certificate of Trust of Owens Corning Capital II
(incorporated by reference to Exhibit 4.8.1 to the
Registration Statement on Form S-3 (Reg. No. 333-24501) of
Owens Corning, Owens Corning Capital II and Owens Corning
Capital III).**
4.6.2 Declaration of Trust of Owens Corning Capital II
(incorporated by reference to Exhibit 4.8.2 to the
Registration Statement on Form S-3 (Reg. No. 333-24501) of
Owens Corning, Owens Corning Capital II and Owens Corning
Capital III).**
4.6.3 Form of Amended and Restated Trust Agreement for Owens
Corning Capital II (incorporated by reference to Exhibit
4.10.1 to the Registration Statement on Form S-3 (Reg. No.
333-24501) of Owens Corning, Owens Corning Capital II and
Owens Corning Capital III).**
4.6.4 Certificate of Trust of Owens Corning Capital III
(incorporated by reference to Exhibit 4.9.1 to the
Registration Statement on Form S-3 (Reg. No. 333-24501) of
Owens Corning, Owens Corning Capital II and Owens Corning
Capital III).**
4.6.5 Declaration of Trust of Owens Corning Capital III
(incorporated by reference to Exhibit 4.9.2 to the
Registration Statement on Form S-3 (Reg. No. 333-24501) of
Owens Corning, Owens Corning Capital II and Owens Corning
Capital III).**
4.6.6 Form of Amended and Restated Trust Agreement for Owens
Corning Capital III (incorporated by reference to Exhibit
4.11.1 to Registration Statement on Form S-3 (Reg. No.
333-24501) of Owens Corning, Owens Corning Capital II and
Owens Corning Capital III).**
II-5
<PAGE>
Exhibit No. Exhibit
4.7.1 Form of Amended and Restated Declaration of Trust for Owens
Corning Capital II, with respect to the Securities.*
4.7.2 Form of Preferred Security Certificate for Owens Corning
Capital II (included as Exhibit A-1 to the Amended and
Restated Declaration of Trust for Owens Corning Capital II
(Exhibit 4.7.1)).*
4.7.3 Form of Amended and Restated Declaration of Trust for Owens
Corning Capital III, with respect to the Securities.*
4.7.4 Form of Preferred Security Certificate for Owens Corning
Capital III (included as Exhibit A-1 to the Amended and
Restated Declaration of Trust for Owens Corning Capital III
(Exhibit 4.7.3)).*
4.7.5 Form of Guarantee Agreement.*
5.1.1 Opinion of Shearman & Sterling as to the legality of the
Securities (other than the Preferred Securities) being
registered.*
5.1.2 Opinion of Morris, Nichols, Arsht & Tunnell, special
Delaware counsel, relating to the legality of the Preferred
Securities of Owens Corning Capital II and Owens Corning
Capital III.*
8.1 Opinion of Shearman & Sterling as to United States tax
matters.*
10.1 Rights Agreement dated as of December 12, 1996, between
Owens Corning and The Chase Manhattan Bank of New York
(incorporated by reference to Exhibit (1) to Owens Corning's
registration statement on Form 8-A (File No. 1-3660) dated
December 19, 1996).**
12.1 Computation of Ratio of Earnings to Fixed Charges and Ratio
of Earnings to Fixed Charges and Preferred Stock Dividends.*
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
23.2 Consent of Shearman & Sterling (included in Exhibits 5.1.1
and 8.1).*
23.3 Consent of Morris, Nichols, Arsht & Tunnell, special
Delaware counsel (included in Exhibit 5.1.2).*
24 Powers of Attorney (included on signature pages).
25.1 Form T-1 Statement of Eligibility of The Bank of New York,
as Trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Institutional Trustee under the Amended and
Restated Declaration of Trust of Owens Corning Capital II.
25.3 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Institutional Trustee under the Amended and
Restated Declaration of Trust of Owens Corning Capital III.
25.4 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Guarantee Trustee under the Guarantee for Owens
Corning Capital II.
II-6
<PAGE>
Exhibit No. Exhibit
25.5 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Guarantee Trustee under the Guarantee for Owens
Corning Capital III.
25.6 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Trustee under the Junior Subordinated Indenture.
___________
* To be filed by amendment.
** Previously filed.
Item 17. Undertakings.
(A) Rule 415 Offering.
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or its most
recent post-effective amendment) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to the Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required
II-7
<PAGE>
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(B) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
The undersigned Registrants hereby further undertake that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Company'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.
(C) Policy Regarding Indemnification.
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 any Registrant of expenses
incurred or paid by a director, officer or controlling person of a 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 indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Owens
Corning 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 on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Toledo, State of Ohio, on April , 1999.
OWENS CORNING
By: /s/ Michael I. Miller
-------------------------------
Michael I. Miller
Vice President and Treasurer
POWER OF ATTORNEY
The undersigned Directors and Officers of Owens Corning, hereby
constitute and appoint Maura J. Abeln and Michael I. Miller, each of them acting
singly, as true and lawful attorneys-in-fact for the undersigned, with full
power of substitution and resubstitution, for, and in the name, place, and stead
of the undersigned, to sign and file with the Securities and Exchange Commission
under the Securities Act of 1933, any and all amendments (including
post-effective amendments) and exhibits to this Registration Statement, any
related registration statement and its amendments and exhibits filed pursuant to
Rule 462(b) under the Securities Act of 1933 and any and all applications and
other documents to be filed with the Securities and Exchange Commission
pertaining to the registration of the securities covered hereby or under any
related registration statement or any amendment hereto or thereto, with full
power and authority to do and perform each and every act and thing requisite and
necessary or desirable, hereby ratifying and confirming all that each of such
attorneys-in-fact or its substitute shall lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ Glen H. Hiner Chairman of the Board, Chief April 21, 1999
- ------------------------- Executive Officer and Director
(Glen H. Hiner) (principal executive officer)
/s/ J. Thurston Roach Senior Vice President and Chief April 21, 1999
- ------------------------- Financial Officer (principal
(J. Thurston Roach) financial officer)
/s/ Steven J. Strobel Vice President and Controller April 21, 1999
- -------------------------
(Steven J. Strobel)
/s/ Curtis H. Barnette Director April 21, 1999
- -------------------------
(Curtis H. Barnette)
/s/ Norman P. Blake, Jr. Director April 19, 1999
- -------------------------
(Norman P. Blake, Jr.)
II-9
<PAGE>
Signature Title Date
Director April , 1999
- -------------------------
(Gaston Caperton)
Director April , 1999
- -------------------------
(Leonard S. Coleman, Jr.)
Director April , 1999
- -------------------------
(William W. Colville)
/s/ John H. Dasburg Director April 16, 1999
- -------------------------
(John H. Dasburg)
/s/ Landon Hilliard Director April 21, 1999
- -------------------------
(Landon Hilliard)
/s/ Jon M. Huntsman, Jr. Director April 21, 1999
- -------------------------
(Jon M. Huntsman, Jr.)
/s/ Ann Iverson Director April 21, 1999
- -------------------------
(Ann Iverson)
/s/ W. Walker Lewis Director April 21, 1999
- -------------------------
(W. Walker Lewis)
/s/ Furman C. Moseley, Jr. Director April 16, 1999
- -------------------------
(Furman C. Moseley, Jr.)
/s/ W. Ann Reynolds Director April 21, 1999
- -------------------------
(W. Ann Reynolds)
II-10
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, Owens Corning
Capital II 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 Toledo, State of Ohio, on April 21, 1999.
OWENS CORNING CAPITAL II
By: OWENS CORNING, as Depositor
By: /s/ Michael I. Miller
-----------------------------------
Name: Michael I. Miller
Title: Vice President and Treasurer
II-11
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, Owens
Corning Capital III 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 Toledo, State of Ohio, on April 21,
1999.
OWENS CORNING CAPITAL III
By: OWENS CORNING, as Depositor
By: /s/ Michael I. Miller
-----------------------------------
Name: Michael I. Miller
Title: Vice President and Treasurer
II-12
<PAGE>
INDEX TO EXHIBITS
The following Exhibits are filed as part of this registration
statement:
Exhibit No. Exhibit
23.1 Consent of Arthur Andersen, LLP, independent public
accountants.
24.1 Powers of Attorney. (included in signature pages)
25.1 Form T-1 Statement of Eligibility of The Bank of New York,
as Trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Institutional Trustee under the Amended and
Restated Declaration of Trust of Owens Corning Capital II.
25.3 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Institutional Trustee under the Amended and
Restated Declaration of Trust of Owens Corning Capital III.
25.4 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Guarantee Trustee under the Guarantee for Owens
Corning Capital II.
25.5 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Guarantee Trustee under the Guarantee for Owens
Corning Capital III.
25.6 Form T-1 Statement of Eligibility of Wilmington Trust
Company, as Trustee under the Junior Subordinated Indenture.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated
January 25, 1999, included in Owen's Corning's annual report on Form 10-K
for the year ended December 31, 1998, and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Anderson LLP
-----------------------
Arthur Anderson LLP
Toledo, Ohio
April 21, 1999
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
OWENS CORNING
(Exact name of obligor as specified in its charter)
Delaware 34-4323452
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One Owens Corning Parkway 43659
Toledo, Ohio (Zip code)
(Address of principal executive offices)
---------------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State 2 Rector Street, New York, N.Y.
of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank 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 19th day of April, 1999.
THE BANK OF NEW YORK
By: /s/CHERYL L. LASER
--------------------------
Name: CHERYL L. LASER
---------------
Title: ASSISTANT VICE PRESIDENT
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) ____
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)
OWENS CORNING
OWENS CORNING CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware 34-4323452
Delaware 31-6560375
(State of incorporation) (I.R.S. employer identification no.)
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
(Address of principal executive offices) (Zip Code)
Preferred Securities of Owens Corning 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.
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 20th day
of April, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ James P. Lawler By:/s/ Donald G. MacKelcan
------------------------ -------------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is Wilmington
Trust Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, 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
5
<PAGE>
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
6
<PAGE>
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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<PAGE>
(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 ByLaws of the Corporation),
any director or the entire Board of Directors of the
8
<PAGE>
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
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 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 20, 1999 By: /s/ Donald G. MacKelcan
-----------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- -------------------------------------------------------- ----------------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.............................................194,839
Interest-bearing balances........................................................................... 0
Held-to-maturity securities................................................................................ 73,911
Available-for-sale securities.............................................................................1,228,194
Federal funds sold and securities purchased under agreements to resell......................................203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,167,235
LESS: Allowance for loan and lease losses. . . . . . 66,897
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve..............................4,100,338
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................139,079
Other real estate owned...................................................................................... 1,532
Investments in unconsolidated subsidiaries and associated companies...........................................1,052
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets............................................................................................ 3,047
Other assets................................................................................................ 98,867
Total assets..............................................................................................6,044,359
CONTINUED ON NEXT PAGE
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................................................4,474,659
Noninterest-bearing . . . . . . . . 1,037,549
Interest-bearing. . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements to repurchase................................. 390,060
Demand notes issued to the U.S. Treasury.....................................................................18,944
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money:.......................................................................................///////
With original maturity of one year or less......................................................555,000
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).................................................................... 90,951
Total liabilities.........................................................................................5,572,614
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......................................................................403,264
Net unrealized holding gains (losses) on available-for-sale securities....................................... 5,863
Total equity capital........................................................................................471,745
Total liabilities, limited-life preferred stock, and equity capital.......................................6,044,359
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ___
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)
OWENS CORNING
OWENS CORNING CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware 34-4323452
Delaware 31-6560375
(State of incorporation) (I.R.S. employer identification no.)
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
(Address of principal executive offices) (Zip Code)
Preferred Securities of Owens Corning Capital III
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 20th day
of April, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ James P. Lawler By:/s/ Donald G. MacKelcan
---------------------- -----------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is Wilmington
Trust Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, 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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<PAGE>
(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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<PAGE>
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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<PAGE>
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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<PAGE>
(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 ByLaws of the Corporation),
any director or the entire Board of Directors of the
8
<PAGE>
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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<PAGE>
(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 20, 1999 By: /s/ Donald G. MacKelcan
-----------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ------------------------------------------------------- ----------------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.............................................194,839
Interest-bearing balances........................................................................... 0
Held-to-maturity securities................................................................................ 73,911
Available-for-sale securities.............................................................................1,228,194
Federal funds sold and securities purchased under agreements to resell......................................203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,167,235
LESS: Allowance for loan and lease losses. . . . . . 66,897
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve..............................4,100,338
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................139,079
Other real estate owned...................................................................................... 1,532
Investments in unconsolidated subsidiaries and associated companies...........................................1,052
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets............................................................................................ 3,047
Other assets................................................................................................ 98,867
Total assets..............................................................................................6,044,359
CONTINUED ON NEXT PAGE
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................................................4,474,659
Noninterest-bearing . . . . . . . . 1,037,549
Interest-bearing. . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements to repurchase................................. 390,060
Demand notes issued to the U.S. Treasury.....................................................................18,944
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money:.......................................................................................///////
With original maturity of one year or less......................................................555,000
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).................................................................... 90,951
Total liabilities.........................................................................................5,572,614
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......................................................................403,264
Net unrealized holding gains (losses) on available-for-sale securities....................................... 5,863
Total equity capital........................................................................................471,745
Total liabilities, limited-life preferred stock, and equity capital.......................................6,044,359
</TABLE>
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) ____
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)
OWENS CORNING
(Exact name of obligor as specified in its charter)
Delaware 34-4323452
(State of incorporation) (I.R.S. employer identification no.)
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
(Address of principal executive offices) (Zip Code)
Guarantee by Owens Corning with respect to
Preferred Securities of Owens Corning 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.
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 20th day
of April, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ James P. Lawler By:/s/ Donald G. MacKelcan
- ---------------------------- ----------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is Wilmington
Trust Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, 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
<PAGE>
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
6
<PAGE>
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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<PAGE>
(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 ByLaws of the Corporation),
any director or the entire Board of Directors of the
8
<PAGE>
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.
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 20, 1999 By: /s/ Donald G. MacKelcan
-----------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ------------------------------------------------------- -----------------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.............................................194,839
Interest-bearing balances........................................................................... 0
Held-to-maturity securities................................................................................ 73,911
Available-for-sale securities.............................................................................1,228,194
Federal funds sold and securities purchased under agreements to resell......................................203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,167,235
LESS: Allowance for loan and lease losses. . . . . . 66,897
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve..............................4,100,338
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................139,079
Other real estate owned...................................................................................... 1,532
Investments in unconsolidated subsidiaries and associated companies...........................................1,052
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets............................................................................................ 3,047
Other assets................................................................................................ 98,867
Total assets..............................................................................................6,044,359
CONTINUED ON NEXT PAGE
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................................................4,474,659
Noninterest-bearing . . . . . . . . 1,037,549
Interest-bearing. . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements to repurchase................................. 390,060
Demand notes issued to the U.S. Treasury.....................................................................18,944
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money:.......................................................................................///////
With original maturity of one year or less......................................................555,000
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).................................................................... 90,951
Total liabilities.........................................................................................5,572,614
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......................................................................403,264
Net unrealized holding gains (losses) on available-for-sale securities....................................... 5,863
Total equity capital........................................................................................471,745
Total liabilities, limited-life preferred stock, and equity capital.......................................6,044,359
</TABLE>
2
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
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)
OWENS CORNING
(Exact name of obligor as specified in its charter)
Delaware 34-4323452
(State of incorporation) (I.R.S. employer identification no.)
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
(Address of principal executive offices) (Zip Code)
Guarantee by Owens Corning with respect to
Preferred Securities of Owens Corning Capital III
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the
trustee and upon information furnished by the obligor, the obligor
is not an affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which
includes the certificate of authority of Wilmington Trust
Company to commence business and the authorization of
Wilmington Trust Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section
321(b) of Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 20th day
of April, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ James P. Lawler By:/s/ Donald G. MacKelcan
------------------- --------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE>
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "Wilmington Trust Company" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of
Delaware is at Rodney Square North, in the City of Wilmington,
County of New Castle; the name of its resident agent is Wilmington
Trust Company whose address is Rodney Square North, in said City. In
addition to such principal office, the said corporation maintains
and operates branch offices in the City of Newark, New Castle
County, Delaware, the Town of Newport, New Castle County, Delaware,
at Claymont, New Castle County, Delaware, at Greenville, New Castle
County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate
branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of
Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time
by the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this
Corporation are to do any or all of the things herein mentioned as
fully and to the same extent as natural persons might or could do
and in any part of the world, viz.:
(1) To sue and be sued, complain and defend in any Court of
law or equity and to make and use a common seal, and alter
the seal at pleasure, to hold, 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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<PAGE>
(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
<PAGE>
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
6
<PAGE>
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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<PAGE>
(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 ByLaws of the Corporation),
any director or the entire Board of Directors of the
8
<PAGE>
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
10
<PAGE>
(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
11
<PAGE>
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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<PAGE>
(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 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 20, 1999 By: /s/ Donald G. MacKelcan
-----------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------- ----------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1998.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................194,839
Interest-bearing balances.............................................................. 0
Held-to-maturity securities................................................................... 73,911
Available-for-sale securities................................................................1,228,194
Federal funds sold and securities purchased under agreements to resell.........................203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,167,235
LESS: Allowance for loan and lease losses. . . . . . 66,897
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve.................4,100,338
Assets held in trading accounts......................................................................0
Premises and fixed assets (including capitalized leases).......................................139,079
Other real estate owned......................................................................... 1,532
Investments in unconsolidated subsidiaries and associated companies..............................1,052
Customers' liability to this bank on acceptances outstanding.........................................0
Intangible assets............................................................................... 3,047
Other assets................................................................................... 98,867
Total assets.................................................................................6,044,359
CONTINUED ON NEXT PAGE
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices..........................................................................4,474,659
Noninterest-bearing . . . . . . . . 1,037,549
Interest-bearing. . . . . . . . . . 3,437,110
Federal funds purchased and Securities sold under agreements to repurchase.................... 390,060
Demand notes issued to the U.S. Treasury........................................................18,944
Trading liabilities (from Schedule RC-D).............................................................0
Other borrowed money:..........................................................................///////
With original maturity of one year or less.........................................555,000
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)....................................................... 90,951
Total liabilities............................................................................5,572,614
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.........................................................403,264
Net unrealized holding gains (losses) on available-for-sale securities.......................... 5,863
Total equity capital...........................................................................471,745
Total liabilities, limited-life preferred stock, and equity capital..........................6,044,359
</TABLE>
2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
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)
OWENS CORNING
(Exact name of obligor as specified in its charter)
Delaware 34-4323452
(State of incorporation) (I.R.S. employer identification no.)
Owens Corning
One Owens Corning Parkway
Toledo, Ohio 43659
(Address of principal executive offices) (Zip Code)
Junior Subordinated Deferrable Interest Debentures
of Owens Corning
(Title of the indenture securities)
================================================================================
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 20th day
of April, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest:/s/ James P. Lawler By:/s/ Donald G. MacKelcan
Assistant Secretary Name: Donald G. MacKelcan
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
<PAGE>
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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<PAGE>
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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<PAGE>
(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
<PAGE>
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.
3
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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
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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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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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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
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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.
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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
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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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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 20, 1999 By: /s/ Donald G. MacKelcan
-----------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any
state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------------------- ------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1998.
--------
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins.......... 194,839
Interest-bearing balances.................................... 0
Held-to-maturity securities.......................................... 73,911
Available-for-sale securities........................................ 1,228,194
Federal funds sold and securities purchased under agreements
to resell......................................................... 203,500
Loans and lease financing receivables:
Loans and leases, net of unearned income........ 4,167,235
LESS: Allowance for loan and lease losses...... 66,897
LESS: Allocated transfer risk reserve.......... 0
Loans and leases, net of unearned income, allowance,
and reserve............................................... 4,100,338
Assets held in trading accounts...................................... 0
Premises and fixed assets (including capitalized leases)............. 139,079
Other real estate owned.............................................. 1,532
Investments in unconsolidated subsidiaries and associated companies.. 1,052
Customers' liability to this bank on acceptances outstanding......... 0
Intangible assets.................................................... 3,047
Other assets......................................................... 98,867
Total assets......................................................... 6,044,359
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LIABILITIES
Deposits:
In domestic offices.................................................. 4,474,659
Noninterest-bearing............................. 1,037,549
Interest-bearing................................ 3,437,110
Federal funds purchased and Securities sold under agreements
to repurchase..................................................... 390,060
Demand notes issued to the U.S. Treasury............................. 18,944
Trading liabilities (from Schedule RC-D)............................. 0
Other borrowed money:................................................ ///////
With original maturity of one year or less................... 555,000
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)............................... 90,951
Total liabilities.................................................... 5,572,614
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............................... 403,264
Net unrealized holding gains (losses) on available-for-sale
securities........................................................ 5,863
Total equity capital................................................. 471,745
Total liabilities, limited-life preferred stock, and equity capital.. 6,044,359
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