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As filed with the Securities and Exchange Commission on November 12, 1999
Registration No. 333-
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------------------
CNB FINANCIAL CORP. CNBF CAPITAL TRUST I
(Exact Name of Registrants as Specified in their Charters)
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NEW YORK DELAWARE
(State or other jurisdiction of incorporation or organization) (State or other jurisdiction of incorporation)
6022 6733
(Primary standard industrial classification code number) (Primary standard industrial classification code number)
22-3203747 16-6497113
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
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24 CHURCH STREET, CANAJOHARIE, NEW YORK 13317, (518) 673-3243
(Address, including zip code, and telephone number, including area code,
of Registrants' principal executive offices)
--------------------------------------
DONALD L. BRASS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CNB FINANCIAL CORP.
24 CHURCH STREET
CANAJOHARIE, NEW YORK 13317
(518) 673-3243
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies To:
STEVEN KAPLAN, ESQ.
ARNOLD & PORTER
555 12TH STREET, N.W.
WASHINGTON, D.C. 20004
(202) 942-5998
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Approximate Date of Commencement of Proposed Sale to the Public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(d) 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. |_|
CALCULATION OF REGISTRATION FEE
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================================================================================================================
Proposed
Maximum
Title of Each Class of Amount to Proposed Maximum Aggregate Amount of
Securities be Offering Price for Offering Registration
To Be Registered Registered Unit (1) Price (1) Fee
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Series B Floating Rate Capital
Securities of CNBF Capital
Trust I $18,000,000 100% $18,000,000 $5,004.00
- ----------------------------------------------------------------------------------------------------------------
Series B Floating Rate Junior
Subordinated Deferrable
Interest Debentures of CNB
Financial Corp. (2) $18,000,000 100% $18,000,000 N/A
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CNB Financial Corp. Series B
Guarantee with respect to
Series B Floating Rate Capital
Securities (3) N/A N/A N/A N/A
- ----------------------------------------------------------------------------------------------------------------
Total $18,000,000 (4) 100% $18,000,000 (4) $5,004.00
================================================================================================================
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(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(b).
(2) No separate consideration will be received for the Series B Floating Rate
Junior Subordinated Deferrable Interest Debentures of CNB Financial Corp.
distributed upon any liquidation of CNBF Capital Trust I.
(3) No separate consideration will be received for the CNB Financial Corp.
Series B Guarantee.
(4) Such amount represents the liquidation amount of the CNBF Capital Trust I
Series B Capital Securities to be exchanged hereunder and the principal amount
of Floating Rate Junior Subordinated Debentures that may be distributed to
holders of such Capital Securities upon any liquidation of CNBF Capital Trust I.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS 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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(a), MAY DETERMINE.
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The information in this Prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
Subject to Completion, Dated November 12, 1999
CNBF CAPITAL TRUST I
OFFER TO EXCHANGE
SERIES B FLOATING RATE CAPITAL SECURITIES
FOR ANY AND ALL OF ITS OUTSTANDING
SERIES A FLOATING RATE CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED AS DESCRIBED IN THIS PROSPECTUS BY
CNB FINANCIAL CORP.
- - Our offer to exchange expires 5:00 p.m., New York City time, on , 1999,
unless extended.
- - We are offering to exchange the following securities:
- Up to $18,000,000 aggregate liquidation amount Series B Floating Rate
Capital Securities of CNBF Capital Trust I for a similar amount of
outstanding Series A Floating Rate Capital Securities of CNBF Capital
Trust I.
- CNB Financial Corp.'s guarantee of the obligations of CNBF Capital
Trust I under the Series B Floating Rate Capital Securities for a
similar guarantee of the obligations of CNBF Capital Trust I under the
Series A Floating Rate Capital Securities.
- Up to $18,000,000 aggregate principal amount of Series B Floating Rate
Junior Subordinated Deferrable Interest Debentures of CNB Financial
Corp. for a similar amount of Series A Floating Rate Junior
Subordinated Deferrable Interest Debentures.
- - The terms of the Series B securities are substantially identical to the
terms of the Series A securities, except that:
- each of the Series B securities are registered under the Securities
Act of 1993 and do not have the same restrictions on transfer as the
Series A securities,
- the distribution rate on the Series B Floating Rate Capital Securities
will not have the potential to increase, and
- the Series B Floating Rate Junior Subordinated Deferrable Interest
Debentures will not be entitled to any liquidated damages.
PLEASE REFER TO "RISK FACTORS" BEGINNING ON PAGE 14 OF THIS PROSPECTUS
FOR IMPORTANT INFORMATION.
THE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK OR SAVINGS
ASSOCIATION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENTAL AGENCY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1999.
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WHERE YOU CAN FIND MORE INFORMATION
CNB Financial Corp. files annual, quarterly and current reports, proxy
statements and other information with the Securities and Exchange Commission, or
SEC. You may read and copy any document that CNB Financial Corp. files with the
SEC at the following locations:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Avenue
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661
You may call the SEC at 1-800-SEC-0330 for further information on their
public reference rooms. The filings of CNB Financial Corp. with the SEC are also
available to the public from the web site maintained by the SEC at
"http://www.sec.gov". In addition, CNB Financial Corp. maintains a web site at
"http://www.canajocnb.com" that contains additional information about CNB
Financial Corp. and its business and operations. The common stock of CNB
Financial Corp. is listed on the Nasdaq National Market under the symbol "CNBF."
Information about CNB Financial Corp. also is available from the NASD, 1735 K
Street, N.W., Washington, D.C. 20006.
We have not included separate financial statements of the Trust in this
prospectus. We do not believe that such financial statements would be material
to holders of the capital securities, because the Trust is a newly-formed
special purpose entity, has no operating history or independent operations, is
not engaged in and does not propose to engage in any activity other than holding
as trust assets the junior subordinated debentures, issuing the capital
securities, issuing exchange securities and engaging in incidental activities,
and the obligations of the Trust under the capital securities are fully and
unconditionally guaranteed by us to the extent the Trust has funds available to
meet such obligations. You should read "CNBF Capital Trust I" for more
information concerning the Trust. In addition, we do not expect that the Trust
will file reports, proxy statements and other information with the SEC under the
Securities Exchange Act of 1934.
We have filed with the SEC a registration statement on Form S-4 under the
Securities Act with respect to the new securities to be issued in the exchange
offer. As allowed by SEC rules, this prospectus does not contain all the
information you can find in the registration statement or the exhibits filed
with the registration statement. Some parts of the registration statement are
omitted here in accordance with the SEC's rules and regulations. You should
review the registration statement and the exhibits filed with such registration
statement for further information regarding us and the new securities being
offered by this prospectus. The registration statement and its exhibits can be
read at the SEC web site or at the SEC offices listed above.
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ADDITIONAL INFORMATION WE HAVE INCORPORATED IN THE PROSPECTUS
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring you to those documents that are considered part of this prospectus.
Information that we file with the SEC after the date of this prospectus 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 us
until our offering of securities has been completed.
- - Annual Report on Form 10-K for the year ended December 31, 1998, as
amended by Form 10-K/A.
- - Current Report on Form 8-K dated March 2, 1999.
- - Current Report on Form 8-K dated April 16, 1999.
- - Current Report on Form 8-K dated June 25, 1999.
- - Current Report on Form 8-K dated August 4, 1999.
- - Current Report on Form 8-K dated September 10, 1999.
- - Quarterly Reports on Form 10-Q for periods ended March 31, 1999 and
June 30, 1999.
You may obtain a copy of our filings with the SEC at no cost, by writing
or telephoning us at the following address:
CNB Financial Corp.
24 Church Street
Canajoharie, NY 13317
Attn: Holly C. Craver, Corporate Secretary
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone else to provide you
with different information. You should not assume that the information in the
prospectus is accurate at any date other than the date indicated on the cover
page of this prospectus.
FORWARD-LOOKING STATEMENTS RELATING TO OUR FUTURE PERFORMANCE OR EXPECTATIONS
AND THAT OF THE CAPITAL SECURITIES
We have used and incorporated by reference "forward-looking statements" in
this prospectus. Words such as "believes," "expects," "may," "will," "should,"
"projected," "contemplates" or "anticipates" may constitute forward-looking
statements. These statements are within the meaning of the Private Securities
Litigation Reform Act of 1995 and are subject to risks and uncertainties that
could cause our actual results to differ materially. We have used these
statements to describe our expectations and estimates in various areas,
including:
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- Deterioration in local, regional, national or global economic
conditions which could result, among other things, in an increase in
loan delinquencies, a decrease in property values, or a change in the
housing turnover rate;
- Changes in market interest rates or changes in the speed at which
market interest rates change resulting in reduced margins;
- Changes in laws and regulations affecting the financial services
industry;
- Changes in competition and continued pricing pressures on loan and
deposit products;
- Changes in consumer preferences and customer borrowing, repayment,
investment and deposit practices;
- The effect of certain customers and vendors of critical systems or
services failing to adequately address issues relating to them
becoming Year 2000 compliant;
- The introduction, withdrawal, success and timing of business
initiatives and strategies, several of which are in early stages and
therefore susceptible to greater uncertainty than more mature
businesses;
- Risks related to our recent acquisition of five branches from Astoria
Federal Savings and Loan Association, including the ability to retain
deposits, generate revenues from the new locations, manage costs and
implement integration plans;
- CNB's ability to implement successfully our strategy to increase the
level of loans on our balance sheet at acceptable levels of risk;
- Changes in the banking industry including the consolidation resulting
from possible mergers of financial institutions; and
- Costs or difficulties related to the integration of the acquired
branches being greater than anticipated.
Our actual results could vary materially from the future results covered
in our forward-looking statements. The statements in the "Risk Factors" section
are additional cautionary statements identifying important factors, including
certain risks and uncertainties that could cause our results to vary materially
from the future results covered in such forward-looking statements. Other
factors, such as the general state of the United States economy, could also
cause actual results to vary materially from the future results covered in such
forward-looking statements. We disclaim any obligation to announce publicly
future events or developments that affect the forward-looking statements in this
prospectus.
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PROSPECTUS SUMMARY
This summary highlights selected information from this prospectus and may
not contain all information that is important to you. This prospectus includes
specific terms of the exchange offer, as well as information regarding our
business and detailed financial data. We encourage you to read this prospectus
in its entirety and the other documents referred to in this prospectus.
In this prospectus, when we refer to "we," "us" or "our," we are referring
to both CNB Financial Corp. and CNBF Capital Trust I. When we refer to "CNB," we
are referring to CNB Financial Corp. When refer to the "Trust," we are referring
to CNBF Capital Trust I.
In addition, when we refer to the "original capital securities," the
"original guarantee" or the "original junior subordinated debentures," we mean
the securities that were issued on August 6, 1999 and that are the subject of
this exchange offer. When we refer to "original securities," we mean,
collectively, the original capital securities, original guarantee and original
junior subordinated debentures.
When we refer to the "exchange capital securities," the "exchange
guarantee" or the "exchange junior subordinated debentures," we mean the
securities that, as part of this exchange offer, will be issued in exchange for
the original capital securities, the original guarantee and the original junior
subordinated debentures. When we refer to the "exchange securities," we mean,
collectively, the exchange capital securities, the exchange guarantee and the
exchange junior subordinated debentures.
When we refer simply to "capital securities," "guarantee" or "junior
subordinated debentures," we mean both the original securities issued on August
6, 1999 and the exchange securities that will be issued as part of this exchange
offer.
CNB FINANCIAL CORP.
CNB is a one-bank holding company headquartered in Canajoharie, New York.
Through its wholly-owned subsidiary, Central National Bank, Canajoharie (the
"Bank"), CNB provides comprehensive community banking services with its network
of twenty-seven branches and two financial service centers located in central
New York in the counties of Montgomery, Fulton, Herkimer, Otsego, Saratoga,
Schoharie, Schenectady and Chenango.
The Bank provides a wide range of services for individuals and small to
medium sized businesses primarily in its market area. Services include accepting
time, demand and savings deposits, and making secured and unsecured commercial,
real estate and consumer loans. The Bank also provides certain insurance, mutual
fund and annuity products to its customers through a third-party vendor. The
Bank's lending activities include residential and commercial real estate loans,
agricultural, commercial, and consumer loans, indirect lending for automobile
and manufactured housing dealers and lease financing for automobiles. Other
services the Bank
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offers include safe deposit boxes, travelers checks, money orders, wire
transfers, drive-thru facilities, 24-hour depositories, ATMs and trust services.
At June 30, 1999, CNB had assets of $745 million, deposits of $608
million, net loans of $395 million and stockholders' equity of $59 million.
CNB's principal executive office is located at 24 Church Street,
Canajoharie, New York 13317, and its telephone number is (518) 673-3243.
CNBF CAPITAL TRUST I
The Trust is a statutory business trust created under Delaware law. The
Trust's business and affairs are conducted by the property trustee, the Delaware
trustee and the three administrators of the Trust, who are officers of CNB. The
Trust exists exclusively to:
- - issue and sell the capital securities and the common securities,
- - use the proceeds from the sale of the capital securities and common
securities to purchase the junior subordinated debentures,
- - issue the exchange securities, and
- - engage in other activities that are necessary or incidental to these
purposes.
The junior subordinated debentures are the sole assets of the Trust.
Payments under the junior subordinated debentures are the sole revenue of the
Trust. All of the common securities issued by the Trust are owned by CNB.
THE EXCHANGE OFFER
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The Exchange Offer............ We are offering to exchange up to
$18,000,000 aggregate liquidation
amount of exchange capital securities
for an equal aggregate liquidation
amount of original capital securities.
You may exchange all of your original
capital securities or less than all of
them provided that the original capital
securities you exchange have a
liquidation amount of at least $100,000
(100 capital securities) or any
integral multiple of $1,000 (one
capital security) in excess of $100,000.
We are making this exchange offer in order to satisfy our
obligations under a registration rights agreement
relating to your original capital securities. Please
refer to "The Exchange Offer" for a description of the
procedures for
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tendering your original capital securities.
Expiration Date............... The exchange offer will expire at 5:00 p.m., New York
City time, on , 1999, unless we extend it (in
which case the expiration date will be the latest date
and time to which we extend the exchange offer). Please
refer to "The Exchange Offer--Expiration Date; Extension;
Amendments" for additional information.
Conditions to the
Exchange Offer................ The exchange offer is subject to certain conditions,
which we have the discretion to waive. The exchange offer
is not conditioned upon the tender of any minimum
liquidation amount of original capital securities. Please
refer to "Exchange Offer--Conditions to the Exchange
Offer" for a description of these conditions.
Terms of the Exchange
Offer......................... We reserve the right, in our discretion
and subject to applicable law, at any
time and from time to time:
- to delay accepting the original
capital securities for exchange;
- to end the exchange offer if
certain specified conditions are
not satisfied;
- to extend the exchange offer and
keep all of the original capital
securities tendered pursuant to the
exchange offer, subject to your
right to withdraw your tendered
original capital securities; or
- to waive any condition or otherwise
change the terms of the exchange
offer in any way.
Please refer to "The Exchange
Offer--Terms of the Exchange Offer" for
additional information.
Withdrawal Rights............. You may withdraw your tender of
original capital securities at any time
before the expiration date by
delivering written notice of the
withdrawal to the exchange agent as
provided in the procedures described
below under the caption "The Exchange
Offer--Withdrawal Rights."
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Procedures for Tendering
Original Capital
Securities.................... You must complete and sign a letter of
transmittal and mail, fax or hand
deliver it, together with any other
documents required by the letter of
transmittal, to the exchange agent,
either with your original capital
securities or in compliance with the
specified procedures for guaranteed
delivery of original capital
securities. Certain brokers, dealers,
commercial banks, trust companies and
other nominees may also effect tenders
by book-entry transfer. If your
original capital securities are
registered in the name of a broker,
dealer, commercial bank, trust company
or other nominee, you should contact
that person promptly if you wish to
tender your original capital securities
pursuant to the exchange
offer. Please refer to "The Exchange
Offer--Procedures for Tendering Original
Capital Securities" for additional
information.
Please do not send your letter of
transmittal and certificates
representing your original capital
securities to us. You should only send
the documents to the exchange agent.
Resales of Exchange Capital
Securities.................... In making the exchange offer, we are
relying on the position of the staff of
the Securities and Exchange
Commission's Division of Corporation
Finance contained in certain
interpretive letters addressed to third
parties in other transactions. We have
not sought, however, our own
interpretive letter. Therefore, there
is no guarantee that the staff of the
Securities and Exchange Commission's
Division of Corporation Finance would
make a similar determination regarding
the exchange offer as it has in the
interpretive letters to third parties.
Unless you are a broker-dealer or an
affiliate of either CNB or the Trust,
we believe that you may sell or
otherwise transfer exchange capital
securities issued to you pursuant to
this exchange offer in exchange for
your original capital securities
without further compliance with the
registration and prospectus delivery
requirements of the Securities Act.
If you are a broker-dealer or an
affiliate of either CNB or the Trust,
then you will be subject to further
restrictions described in "The Exchange
Offer - Resale of Exchange
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Capital Securities."
Subject to limitations described in
"The Exchange Offer--Resale of Exchange
Capital Securities," we have agreed
that this prospectus, as it may be
changed or supplemented from time to
time, may be used if you are a
participating broker-dealer in
connection with resales of exchange
capital securities. Please refer to
"Plan of Distribution."
Exchange Agent................ The exchange agent with respect to the
exchange offer is Wilmington Trust
Company. The address, telephone and
facsimile numbers of the exchange agent
are listed in "The Exchange
Offer--Exchange Agent" and in the
letter of transmittal.
Certain United States
Federal Income Tax
Consequences; ERISA
Considerations........... You should review carefully the
information contained under the caption
"Certain Federal Income Tax
Considerations" and "ERISA
Considerations" before tendering your
original capital securities in the
exchange offer.
THE EXCHANGE CAPITAL SECURITIES
Securities Offered............ We have registered up to $18,000,000
aggregate liquidation amount of the
Trust's exchange capital securities
under the Securities Act. The terms of
the exchange capital securities are the
same as the terms of the original
capital securities, except that the
exchange capital securities:
- have been registered under the
Securities Act;
- will not be subject to certain
transfer restrictions applicable to
the original capital securities;
and
- will not provide for any increase
in the distribution rate.
Please refer to "Description of
Exchange Securities."
Distributions................. You will be entitled to receive
quarterly cash distributions at an
annual rate, reset quarterly, equal to
the three month LIBOR plus 275 basis
points, of the liquidation amount of
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$1,000 for each capital security. You
will be entitled to be paid
distributions on March 31, June 30,
September 30 and December 31 of each
year. The amount of each distribution
will include amounts accrued up to the
date the distribution is due. These
payments are identical to the payments
that CNB is required to make under the
junior subordinated debentures.
Extension Periods............. If no default has occurred and is
continuing, CNB will have the right, on
one or more occasions, to defer
interest payments on the exchange
junior subordinated debentures for up
to 20 consecutive quarters. CNB cannot
defer interest payments beyond
September 30, 2029, the stated maturity
date of the exchange junior
subordinated debentures.
If CNB defers interest payments on the
exchange junior subordinated
debentures, the Trust will also defer
distributions on the exchange capital
securities. During this deferral period
the exchange capital securities will
still accumulate distributions at an
annual rate, reset quarterly, equal to
the three month LIBOR plus 275 basis
points, of the liquidation amount of
$1,000 for each capital security. In
addition, any unpaid distributions on
the exchange capital securities will
accumulate additional distributions at
the same rate, compounded quarterly, to
the extent permitted by law. After the
end of any period in which CNB is
deferring interest payments, if CNB has
paid all deferred and current interest
under the exchange junior subordinated
debentures, CNB may defer interest
payments again. If the Trust defers
your distributions, you will still be
required to accrue interest income and
include it in your gross income for
U.S. federal income tax purposes, even
if you are a cash basis taxpayer.
Ranking....................... The exchange capital securities will
rank equally with the original capital
securities and the common securities of
the Trust except as described under
"Description of Exchange
Securities--Capital
Securities--Subordination of
Common Securities."
The exchange junior subordinated
debentures will rank equally with the
original junior subordinated debentures
and all other junior subordinated
debentures which are
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issued and sold to other trusts that
may be established by CNB similar to
the Trust. The exchange junior
subordinated debentures will be
unsecured and subordinate and junior in
right of payment as described in the
Indenture to all senior indebtedness of
CNB. See "Description of Exchange
Securities--Junior Subordinated
Debentures--Subordination."
The exchange guarantee will rank
equally with the original guarantee and
all other guarantees to be issued by
CNB with respect to capital securities
to be issued by other trusts that may
be established by CNB similar to the
Trust, and will constitute an unsecured
obligation of CNB and will rank
subordinate and junior in right of
payment as described in the guarantee
to all senior indebtedness. See
"Description of Exchange
Securities--Guarantee--General."
In addition, because CNB is a holding
company, the junior subordinated
debentures and the guarantee are
effectively subordinated to all
existing and future liabilities of
CNB's subsidiaries, including the
Bank's deposits.
Redemption.................... If CNB redeems some or all of the
junior subordinated debentures before
maturity, the Trust will use the cash
it receives from the redemption of
junior subordinated debentures to
redeem proportionately an amount of
capital securities and common
securities having an aggregate
liquidation amount equal to the
aggregate principal amount of junior
subordinated debentures that CNB
redeemed.
At any time on or after September 30,
2009, CNB may redeem some or all of the
junior subordinated debentures before
September 30, 2029 at their principal
amount plus any accrued and unpaid
interest to the date of redemption.
CNB may also redeem all of the junior
subordinated debentures before
September 30, 2029 at their principal
amount plus any accrued and unpaid
interest to the date of redemption at
any time if changes in the bank
regulatory, investment company or tax
laws occur that would adversely impact
the status of the Trust, the capital
securities or junior subordinated
debentures.
CNB may have to obtain regulatory approvals,
including
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the approval of the Federal Reserve Board, before it
redeems junior subordinated debentures prior to maturity.
See "Description of Exchange Securities--Capital
Securities--Redemption."
Transfer Restrictions......... The exchange capital securities will be
issued, and may be transferred, only in
blocks having a liquidation amount of
not less than $100,000 (100 capital
securities) and multiples of $1,000 in
excess of $100,000.
ERISA Considerations..... You should consider carefully the
restrictions on purchase described
under the caption "ERISA
Considerations."
Absence of Market for
the Exchange Capital
Securities.................... The exchange capital securities will be
a new issue of securities for which
there currently is no market.
Accordingly, we cannot assure you that
any market will develop for the
exchange capital securities. We do not
intend to apply for listing of the
exchange capital securities on any
securities exchange or for quotation
through the National Association of
Securities Dealers Automated Quotation
System. See "Plan of Distribution."
Risk Factors.................. You should consider carefully the "Risk
Factors" beginning on page 14.
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SUMMARY SELECTED CONSOLIDATED FINANCIAL DATA
We have selected highlights from CNB's consolidated financial data as of,
and for the six months ended June 30, 1999 and 1998 and as of, and for each of
the five years ended December 31, 1998. You should read CNB's consolidated
financial statements and related notes for the year ended December 31, 1998 and
for the six months ended June 30, 1999.
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AT OR FOR THE SIX
MONTHS ENDED
JUNE 30,
---------- -----------
1999 1998
(Dollars in thousands,
excluding per share data)
<S> <C> <C>
SELECTED FINANCIAL
CONDITION DATA:
Total assets ...................................... $745,387 $681,684
Net loans receivable .............................. 395,322 360,139
Securities ........................................ 310,751 280,232
Deposits .......................................... 607,766 587,305
Borrowings ........................................ 70,190 30,864
Stockholders' equity .............................. 58,501 56,041
SELECTED OPERATIONS DATA:
Total interest and dividend income ................ $ 26,203 $ 26,034
Total interest expense ............................ 12,689 12,878
-------- --------
Net interest income ............................... 13,514 13,156
Provision for loan losses ......................... 720 290
-------- --------
Net interest income after provision for loan losses 12,794 12,866
Other income ...................................... 1,266 1,980
Other expenses .................................... 9,795 10,009
-------- --------
Income before income tax expense .................. 4,265 4,837
Income tax expense ................................ 1,119 1,261
-------- --------
Net income ........................................ $ 3,146 $ 3,576
======== ========
EARNINGS TO FIXED
CHARGES RATIOS(1):
Including interest on deposits .................... 1.34x 1.38x
Excluding interest on deposits .................... 7.73x 8.21x
PER SHARE DATA, ADJUSTED FOR STOCK SPLITS:
Basic earnings per share .......................... $ 0.41 $ 0.47
Diluted earnings per share ........................ 0.41 0.46
Dividends per share ............................... 0.16 0.14
</TABLE>
<TABLE>
<CAPTION>
-------------------------------------------------------------------
AT OR FOR THE YEARS ENDED DECEMBER 31,
---------- ------------- ----------- ------------ ------------
1998 1997 1996 1995 1994
(Dollars in thousands, excluding per share data)
<S> <C> <C> <C> <C> <C>
SELECTED FINANCIAL
CONDITION DATA:
Total assets ...................................... $711,088 $634,389 $586,075 $564,792 $484,497
Net loans receivable .............................. 372,569 338,332 312,876 308,154 283,534
Securities ........................................ 300,107 255,520 235,743 215,450 173,838
Deposits .......................................... 628,142 538,472 509,217 496,311 416,964
Borrowings ........................................ 19,181 35,164 21,824 14,583 22,611
Stockholders' equity .............................. 55,566 54,606 48,391 47,433 38,898
SELECTED OPERATIONS DATA:
Total interest and dividend income ................ $ 52,542 $ 48,635 $ 46,885 $ 43,615 $ 35,709
Total interest expense ............................ 26,158 22,722 21,754 20,088 13,540
-------- -------- -------- -------- --------
Net interest income ............................... 26,384 25,913 25,131 23,527 22,169
Provision for loan losses ......................... 773 275 635 965 1,600
-------- -------- -------- -------- --------
Net interest income after provision for loan losses 25,611 25,638 24,496 22,562 20,569
Other income ...................................... 4,530 3,774 3,178 2,745 1,673
Other expenses .................................... 19,854 18,511 17,779 16,254 14,723
-------- -------- -------- -------- --------
Income before income tax expense .................. 10,287 10,901 9,895 9,053 7,519
Income tax expense ................................ 2,606 3,235 2,738 2,481 2,230
-------- -------- -------- -------- --------
Net income ........................................ $ 7,681 $ 7,666 $ 7,157 $ 6,572 $ 5,289
======== ======== ======== ======== ========
EARNINGS TO FIXED
CHARGES RATIOS(1):
Including interest on deposits .................... 1.39x 1.48x 1.45x 1.45x 1.56x
Excluding interest on deposits .................... 9.24x 10.00x 9.96x 11.31x 9.81x
PER SHARE DATA, ADJUSTED FOR STOCK SPLITS:
Basic earnings per share .......................... $ 1.01 $ 0.99 $ 0.90 $ 0.82 $ 0.70
Diluted earnings per share ........................ 1.00 0.99 0.90 0.81 0.69
Dividends per share ............................... 0.33 0.30 0.27 0.24 0.22
</TABLE>
- ---------------------
(1) For purposes of computing the ratios of earnings to fixed charges, earnings
represent income before income tax expense plus fixed charges. Fixed charges
represent total interest expense, including and excluding interest on deposits.
13
<PAGE> 15
RISK FACTORS
You should carefully consider the following risk factors and the other
sections of this prospectus before making a decision to tender your original
capital securities for exchange. Some of these risks relate to your investment
in the capital securities and others relate to us. We urge you to consider
carefully this information, together with the other information in this
prospectus and in the documents that we have incorporated by reference in this
prospectus. You should consider all of these risk factors to be important.
Except where otherwise indicated, the following risk factors apply to both the
original capital securities and the exchange capital securities.
RISKS RELATED TO YOUR INVESTMENT IN THE CAPITAL SECURITIES
IF YOU DO NOT EXCHANGE YOUR ORIGINAL CAPITAL SECURITIES FOR EXCHANGE CAPITAL
SECURITIES, YOU WILL REMAIN SUBJECT TO TRANSFER RESTRICTIONS.
The original capital securities have not been registered under the
Securities Act or any state securities laws. As a result, the original capital
securities may not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Securities Act and any
applicable state securities laws, or in connection with an exemption from such
requirements.
Original capital securities that are not exchanged for exchange capital
securities in this exchange offer will continue to have a legend that describes
these transfer restrictions. In addition, after the exchange offer ends, holders
of original capital securities will not be entitled to any additional
distributions or any further registration rights under the registrations rights
agreement, except under limited circumstances. We do not intend to register any
original capital securities under the Securities Act which have not been
exchanged after the exchange offer ends (except for certain limited exceptions).
Original capital securities are likely to be less attractive to potential
purchasers than exchange capital securities.
Although the original capital securities have been designated for trading
in the Private Offerings, Resale and Trading through Automated Linkages, or
PORTAL, market, to the extent that original capital securities are tendered and
accepted in connection with the exchange offer, any trading market for original
capital securities which remain outstanding could be adversely affected.
CNB WILL DEPEND PRIMARILY ON ANY DIVIDENDS IT MAY RECEIVE FROM ITS SUBSIDIARIES
IN MAKING PAYMENTS UNDER THE JUNIOR SUBORDINATED DEBENTURES. CNB'S DEPENDENCE ON
DIVIDENDS FROM ITS SUBSIDIARIES COULD AFFECT THE PAYMENTS MADE TO YOU UNDER THE
CAPITAL SECURITIES.
Because CNB is a bank holding company, substantially all of its operating
assets are owned by the Bank. CNB relies primarily on dividends from the Bank to
pay principal and interest on its outstanding debt obligations and corporate
expenses. The board of directors of the Bank has the sole discretion to declare
and pay any dividends to CNB. In addition, the Office of the Comptroller of the
Currency, or OCC, limits all capital distributions by the Bank directly or
14
<PAGE> 16
indirectly to CNB, including dividend payments. Without prior approval of the
OCC, the Bank may not declare a dividend if the total amount of all dividends
declared by the Bank in any calendar year exceeds the total of the Bank's
retained net income for the current year and retained net income for the
preceding two years. Under federal law, the Bank cannot pay any dividend if,
after paying the dividend, the Bank will be "undercapitalized." The OCC may
declare a dividend payment to be unsafe and unsound even though the Bank would
continue to meet its capital requirements after the dividend. If the Bank does
not pay dividends to CNB and CNB is unable to make payments on the junior
subordinated debentures, the Trust will not be able to pay distributions and
other payments on the capital securities and the guarantee will not apply.
CNB'S OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED DEBENTURES ARE
SUBORDINATED TO MOST OF ITS OTHER CREDITORS.
CNB's obligations under the guarantee and the junior subordinated
debentures are unsecured and rank:
- junior in right of payment to all of CNB's existing and future senior
debt, subordinated debt and additional senior obligations, which
totaled $18 million at June 30, 1999; and
- senior to CNB's common stock.
Because CNB is a holding company, the creditors of CNB's subsidiaries also
will have priority over CNB and you in any distribution of the subsidiaries'
assets in a liquidation, reorganization or otherwise, except to the extent that
CNB is recognized as a creditor of its subsidiaries. Therefore, the junior
subordinated debentures will be effectively subordinated to all existing and
future liabilities of CNB's subsidiaries, and you should look only to CNB's
assets for payments on the junior subordinated debentures.
The capital securities, the guarantee, the junior subordinated debentures
and the indenture do not limit CNB's ability or the ability of any subsidiary to
incur additional debt, including debt that is senior in priority of payment.
For more information on payments under the guarantee and the junior
subordinated debentures, you should refer to "Description of Exchange
Securities--Guarantee--Status of the Guarantee" and "Description of Exchange
Securities--Junior Subordinated Debentures--Subordination."
CNB MAY DEFER INTEREST PAYMENTS ON THE JUNIOR SUBORDINATED DEBENTURES WHICH
COULD HAVE ADVERSE CONSEQUENCES TO YOU.
CNB has the right, at one or more times, unless an event of default exists
under the junior subordinated debentures, to defer interest payments on the
junior subordinated debentures for up to 20 consecutive quarters, but not beyond
September 30, 2029. If CNB defers interest payments, the Trust will defer paying
distributions to you on your capital securities during the
15
<PAGE> 17
deferral period. During this period, however, the capital securities would still
accumulate distributions at the annual rate, reset quarterly, equal to the three
month LIBOR plus 275 basis points, to the extent permitted by law. During any
deferral period, CNB will be prohibited from declaring or paying cash dividends
on its capital stock or from paying on or repaying, repurchasing or redeeming
any debt which ranks equal or junior to the junior subordinated debentures. For
more information, please refer to "Description of Exchange Securities--Capital
Securities--Distributions."
When any deferral period ends and CNB pays all interest then accrued and
unpaid on the junior subordinated debentures, CNB may elect to begin a new
deferral period. There is no limitation on the number of times that CNB may
elect to begin a deferral period. You should read "Description of Exchange
Securities--Capital Securities--Distributions" and "Description of Exchange
Securities--Junior Subordinated Debentures--Option to Extend Interest Payment
Date" for more information.
If CNB exercises its right to defer payments of interest on the junior
subordinated debentures, you will be required to accrue income (as original
issue discount or OID) in respect of the deferred stated interest allocable to
your capital securities for United States federal income tax purposes, which
will be allocated but not distributed to you. As a result, you will be required
to recognize income for U.S. federal income tax purposes before you receive any
cash. You will not receive the cash related to this interest income from the
Trust if you dispose of your capital securities prior to the record date for the
distribution payment. For more information, you should read "Certain Federal
Income Tax Consequences--Interest Income and Original Issue Discount" and
"--Sales or Redemption of Capital Securities."
CNB does not currently intend to exercise its right to defer interest
payments on the junior subordinated debentures. If CNB, however, exercises this
right in the future, the market price of the capital securities will likely be
affected. The capital securities may trade at a price that does not fully
reflect the value of accrued but unpaid interest on the junior subordinated
debentures. As a result, if you sell your capital securities during a deferral
period, you may not receive the same return on your investment as someone else
who continues to hold the capital securities.
THE GUARANTEE COVERS PAYMENTS ONLY IF THE TRUST HAS CASH AVAILABLE.
If CNB defaults on its obligations to pay principal, premium or interest on
the junior subordinated debentures, the Trust will not have sufficient funds to
make distribution payments or liquidation payments on the capital securities.
Because CNB's guarantee does not cover payments when the Trust does not have
sufficient funds, you will not be able to rely upon the guarantee for payment of
these amounts. Instead, you or the property trustee may enforce the rights of
the Trust under the junior subordinated debentures against CNB. For more
information, please refer to "Description of Exchange Securities--Junior
Subordinated Debentures--Enforcement of Certain Rights by Holders."
16
<PAGE> 18
THE TRUST MAY REDEEM THE CAPITAL SECURITIES BEFORE SEPTEMBER 30, 2009 IF A
SPECIAL EVENT OCCURS. YOU MAY BE TAXED ON THE PROCEEDS AND YOU MAY NOT BE ABLE
TO REINVEST THE PROCEEDS AT THE SAME OR A HIGHER RATE OF RETURN.
If there are changes in the bank regulatory, investment company or tax laws
that would adversely affect the status of the Trust, the capital securities or
the junior subordinated debentures, CNB has the right to redeem the junior
subordinated debentures, in whole but not in part. CNB's redemption of the
junior subordinated debentures will cause the Trust to redeem the capital
securities and the common securities at a price equal to $1,000 per security
plus any accrued and unpaid distributions. Under current United States federal
income tax law, the redemption of the capital securities would be a taxable
event to you. In addition, you may not be able to reinvest the money you receive
in the redemption at a rate that is equal to or higher than the rate of return
you received on the capital securities. CNB may have to obtain regulatory
approval, including the approval of Federal Reserve Board, before CNB redeems
any junior subordinated debentures. For more information, you should refer to
"Description of Exchange Securities--Capital Securities--Redemption."
IF CNB DISTRIBUTES THE JUNIOR SUBORDINATED DEBENTURES, THERE MAY BE AN ADVERSE
EFFECT ON THE TRADING MARKET AND TRADING PRICE OF YOUR INVESTMENT, AND THERE MAY
BE ADVERSE TAX EFFECTS.
CNB may dissolve the Trust at any time and, after satisfying the
liabilities owed to the Trust's creditors under applicable law, the issuer
trustees will distribute the junior subordinated debentures to you, as a holder
of capital securities, and to CNB, as the holder of common securities.
If the issuer trustees distribute the junior subordinated debentures to
you, we cannot be sure that a trading market will exist for the junior
subordinated debentures. Accordingly, the capital securities or the junior
subordinated debentures may trade at a discount from the price that an investor
paid to purchase the capital securities. Because holders of capital securities
may receive junior subordinated debentures in liquidation of the Trust and
because distributions are otherwise limited to payments on the junior
subordinated debentures, prospective purchasers of capital securities are also
making an investment decision with regard to the junior subordinated debentures.
As a result, you should carefully review all the information regarding the
junior subordinated debentures contained in this prospectus.
Under current United States federal income tax law, a distribution of the
junior subordinated debentures following the dissolution of the Trust would not
be a taxable event to you unless the distribution occurs at a time when the
Trust is treated as an association taxable as a corporation. Any distributions
of cash for the junior subordinated debentures would, however, be a taxable
event to you. You should refer to "Certain Federal Income Tax
Considerations--Receipt of Junior Subordinated Debentures or Cash Upon
Liquidation of the Trust" for more information.
17
<PAGE> 19
YOU WILL HAVE LIMITED VOTING RIGHTS.
As a holder of capital securities, you will have limited voting rights. You
can vote only to modify the capital securities and to exercise the Trust's
rights as a holder of the junior subordinated debentures. In addition, the
holders of at least a majority in aggregate liquidation amount of the capital
securities can appoint or remove any of the issuer trustees for cause. If an
event of default exists under the trust agreement, the holders of the capital
securities with at least a majority of the aggregate liquidation amount of the
capital securities may appoint or remove the property trustee and the Delaware
trustee with or without cause.
CNB, as holder of the common securities, along with the property trustee,
may, subject to certain conditions, amend the trust agreement without your
consent even if these actions adversely affect your interests, to cure any
ambiguity or make other provisions not inconsistent with the trust agreement or
to ensure that the Trust:
- will not be classified as an association taxable as a corporation for
U.S. federal income tax purposes, and
- will not be required to register as an "investment company" under the
Investment Company Act of 1940.
You will have no voting rights with respect to any matters submitted to a
vote of CNB's stockholders. For more information on your voting rights, please
refer to "Description of Exchange Securities--Capital Securities--Voting Rights;
Amendment of the Trust Agreement" and "--Removal of Trustees."
THE HOLDERS OF THE CAPITAL SECURITIES AND THE JUNIOR SUBORDINATED DEBENTURES ARE
NOT PROTECTED BY COVENANTS IN THE INDENTURE AND THE TRUST AGREEMENT.
Neither the indenture, which sets forth the terms of the junior
subordinated debentures, nor the trust agreement, which sets forth the terms of
the capital securities and the common securities, protects holders of junior
subordinated debentures or the capital securities, respectively, in the event
CNB experiences significant adverse changes in its financial condition or
results of operations. In addition, neither the indenture nor the trust
agreement limits CNB's ability or the ability of any subsidiary to incur
additional indebtedness. Therefore, the provisions of these governing
instruments should not be considered a significant factor in evaluating whether
CNB will be able to comply with its obligations under the junior subordinated
debentures or the guarantee.
THE TRADING PRICE OF THE CAPITAL SECURITIES OR THE JUNIOR SUBORDINATED
DEBENTURES MAY NOT REFLECT THEIR FULL VALUE.
We cannot predict the market prices for the capital securities or the
junior subordinated debentures that may be distributed if CNB dissolves the
Trust. The capital securities or the junior subordinated debentures may trade at
a discount from the price that you paid for the capital securities. The capital
securities may be transferred only in blocks having a liquidation
18
<PAGE> 20
amount of not less than $100,000 (100 capital securities) and multiples of
$1,000 in excess thereof. You should read "Description of Exchange
Securities--Capital Securities--Restrictions on Transfer" and "Notice to
Investors" for more information concerning the transfer of capital securities.
The capital securities may trade at a price that does not fully reflect the
value of accrued but unpaid interest with respect to the underlying junior
subordinated debentures. A holder who uses the accrual method of accounting for
tax purposes (and a cash method holder, if the junior subordinated debentures
are deemed to have been issued with OID) and who disposes of its capital
securities between record dates for payments of distributions will be required
to include accrued but unpaid interest on the junior subordinated debentures
through the date of disposition in income as ordinary income (i.e., interest or,
possibly, OID), and to add such amount to its adjusted tax basis in its share of
the underlying junior subordinated debentures deemed disposed of. To the extent
the selling price is less than the holder's adjusted tax basis (which will
include all accrued but unpaid interest), a holder will recognize a capital
loss. Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for U.S. federal income tax purposes. You should read
"Certain Federal Income Tax Considerations--Interest Income and Original Issue
Discount" and "--Sales or Redemptions of Capital Securities" for more
information on the tax implications purchasing, holding and selling capital
securities.
THE ABSENCE OF A PUBLIC MARKET FOR THE CAPITAL SECURITIES MAY MAKE IT DIFFICULT
FOR YOU TO SELL YOUR CAPITAL SECURITIES AT AN ACCEPTABLE PRICE OR AT ALL.
The original capital securities have not been registered under the
Securities Act and will continue to be subject to restrictions on
transferability under the Securities Act and applicable state securities laws if
they are not exchanged for exchange capital securities. Although the exchange
capital securities generally may be resold or otherwise transferred by the
holders (who are not affiliates of CNB or the Trust) without compliance with the
registration requirements under the Securities Act, they will constitute a new
issue of securities with no established trading market. Capital securities may
be transferred by the holders thereof only in blocks having a liquidation amount
of not less than $100,000 (100 capital securities). We were advised by Ryan,
Beck & Co., the initial purchaser in connection with the offering of the
original capital securities, that Ryan, Beck & Co. intends to make a market in
the capital securities. However, Ryan, Beck & Co. is not obligated to do so and
any market-making activity with respect to the capital securities may be
discontinued at any time without notice. In addition, such market-making
activity will be subject to the limits imposed by the Securities Act and the
Exchange Act and may be limited during the exchange offer. Accordingly, no
assurance can be given that an active public or other market will develop for
the exchange capital securities or the original capital securities or as to the
liquidity of or the trading market for the exchange capital securities or the
original capital securities. If an active public market does not develop, the
market price and liquidity of the exchange capital securities may be adversely
affected. If a public trading market develops for the exchange capital
securities, future trading prices will depend on many factors, including, among
other things, prevailing interest rates, our results of operations and the
market for similar securities.
19
<PAGE> 21
THE INTEREST RATE TO BE PAID ON THE CAPITAL SECURITIES IS VARIABLE.
Because the interest rate to be paid on the capital securities is variable,
changes in interest rates may affect the value of your investment in the capital
securities. Significant decreases in interest rates would result in a
significant decrease in the interest income earned by you on the capital
securities.
RISKS RELATED TO CNB
CNB MAY EXPERIENCE DIFFICULTIES IN MANAGING ITS GROWTH.
As part of its general strategy CNB may acquire banks and businesses that
CNB believes provide a strategic fit with its business. CNB does not have a
history of growth by acquisitions. To the extent that CNB does grow, we cannot
assure you that CNB will be able to manage its growth adequately and profitably.
Acquiring other banks and businesses will involve risks commonly associated with
acquisitions, including:
- potential exposure to liabilities of banks and businesses that CNB
acquires;
- difficulty and expense of integrating the operations and personnel of
banks and businesses that CNB acquires;
- potential disruption to CNB's business;
- potential diversion of the time and attention of CNB's management;
- impairment of relationships with and the possible loss of key
employees and customers of the banks and businesses that CNB acquires;
and
- incurrence of amortization expense if CNB accounts for an acquisition
as a purchase.
The success of CNB's internal growth strategy will depend primarily on its
ability to generate an increasing level of loans and deposits at acceptable risk
levels and terms without significant increases in non-interest expenses relative
to revenues generated. There is no assurance that CNB will be successful in
implementing its internal growth strategy. CNB's financial performance also
depends, in part, on its ability to manage various portfolios and its ability
successfully to introduce additional financial products and services. There can
be no assurance that additional financial products and services will be
introduced or, if introduced, that such financial products and services will be
successful. Furthermore, the success of CNB's growth strategy will depend on
maintaining sufficient regulatory capital levels and on economic conditions.
20
<PAGE> 22
IF CNB IS UNABLE TO COMPETE SUCCESSFULLY FOR CUSTOMERS IN ITS MARKET AREA, ITS
CONSOLIDATED FINANCIAL CONDITION AND RESULTS OF OPERATIONS COULD BE ADVERSELY
AFFECTED.
CNB faces intense and increasing competition in making loans, attracting
deposits and providing other financial products and services. The market area in
which CNB operates, the New York counties of Montgomery, Fulton, Herkimer,
Otsego, Schoharie, Saratoga, Schenectady and Chenango, has numerous financial
institutions that CNB competes with for customers. CNB's competition for loans
comes principally from:
- commercial banks,
- savings banks,
- savings and loan associations,
- mortgage banking companies,
- finance companies, and
- credit unions.
CNB's competition for deposits comes principally from:
- commercial banks,
- savings banks,
- savings and loan associations,
- credit unions,
- brokerage firms,
- insurance companies,
- money market mutual funds, and
- mutual funds (such as corporate and government securities funds).
Many of these competitors have greater financial resources and name
recognition, more locations, more advanced technology and more financial
products to offer than CNB has. The intense competition in the market for
financial services has exerted pressure on the pricing of CNB's loan and deposit
products. CNB's profitability depends on its continued ability to retain
existing customers and to attract new customers and to make loans and attract
deposits on favorable terms. If CNB is unable to compete successfully for loans
and deposits on favorable terms, its financial condition and results of
operations will be adversely affected.
BECAUSE CNB PRIMARILY SERVES CENTRAL NEW YORK, A DECLINE IN THE LOCAL ECONOMY
COULD LOWER ITS PROFITABILITY.
CNB serves the central New York counties of Montgomery, Fulton, Herkimer,
Otsego, Saratoga, Schoharie, Schenectady and Chenango with twenty-seven branches
and two financial
21
<PAGE> 23
service centers. CNB's profits depend on providing products and services to
customers in this local region. An increase in unemployment, a decrease in real
estate values or an increase in interest rates are among the factors that could
weaken the local economy. With a weaker local economy:
- customers may not want or need CNB's products and services;
- borrowers may be unable to repay their loans;
- the value of the collateral securing CNB's loans to borrowers may
decline; and
- the overall quality of CNB's loan portfolio may decline.
Making mortgage loans, consumer loans, commercial loans and agricultural
loans is a significant source of CNB's profits. If customers in the local area
do not want these loans, CNB's profits may decrease. Although CNB could make
other investments, CNB may earn less revenue on these investments than on loans.
Also, CNB's losses on loans may increase if borrowers are unable to make
payments on their loans.
CNB'S CONCENTRATION OF CONSUMER LENDING IN MANUFACTURED HOUSING, AUTOMOBILE
LEASING AND AUTOMOBILE LENDING INCREASES THE CREDIT RISK OF ITS LOAN PORTFOLIO.
CNB's consumer lending activities focus on indirect financing provided
through manufactured housing and automobile dealers. At June 30, 1999,
approximately 14.4% of the Bank's total loan portfolio was concentrated in
manufactured housing loans, 14.1% was concentrated in lease financing on
automobiles and approximately 10.7% was concentrated in automobile loans.
Accordingly, a substantial portion of the loan portfolio is subject to the
general risks associated with consumer lending. Because competitive pressures
have reduced the rates CNB can charge for manufactured housing and indirect auto
lending, CNB is de-emphasizing these activities. However, CNB does not intend to
exit these businesses completely and thus CNB will continue to be subject to the
risks associated with these types of loans.
CNB'S FUTURE PROFITS WILL BE AFFECTED BY ITS ABILITY TO INTEGRATE
SUCCESSFULLY THE NEW BRANCHES ACQUIRED FROM ASTORIA FEDERAL SAVINGS AND LOAN
ASSOCIATION.
On August 27, 1999, the Bank purchased five branches located in the upstate
New York counties of Otsego and Chenango from Astoria Federal Savings and Loan
Association. Under the agreement, the Bank acquired all of the deposits related
to the branches (approximately $157 million as of June 30, 1999). The Bank's
future profits will be affected by the Bank's ability to retain the acquired
deposits, to generate revenues from the new locations, to manage the costs
associated with the acquisition and to otherwise successfully integrate the new
branches into its operations.
INTEREST RATE CHANGES MAY REDUCE CNB'S PROFITABILITY.
To be profitable CNB has to earn more money in interest and dividend income
and fee income than it pays as interest on deposits, other interest-bearing
liabilities and the capital
22
<PAGE> 24
securities and as other expenses. If interest rates fall, the amount of interest
CNB earns on loans and securities may decrease more quickly than the amount of
interest CNB pays on deposits, other interest bearing liabilities and the
capital securities. This would result in a decrease in its profitability.
Changes in the general level of interest rates also affect:
- CNB's ability to originate loans,
- the average life of CNB's loans,
- the value of CNB's loan and securities portfolios,
- CNB's ability to realize gains from the sale of loans and securities,
- the average life of CNB's deposits, and
- CNB's ability to obtain deposits.
Fluctuations in interest rates will ultimately affect both the level of
income and expense CNB records on a large portion of the Bank's assets and
liabilities, and the market value of all interest- earning assets, other than
interest-earning assets that mature in the short term. The Bank's interest rate
management strategy is designed to stabilize net interest income and preserve
capital over a broad range of interest rate movements by matching the interest
rate sensitivity of assets and liabilities. Although CNB believes that its
current mix of loans, securities and deposits is reasonable, significant
fluctuations in interest rates may have a negative effect on its profitability.
In addition, CNB assumed $157 million of deposit liabilities from Astoria
Federal Savings and Loan Association and created $18 million in interest bearing
liabilities in connection with the issuance of the original capital securities.
The assumption of these interest bearing liabilities could affect its interest
rate risk. Moreover, because the interest rate to be paid on the capital
securities is variable, significant increases in interest rates could have a
material adverse impact on CNB's operations.
CNB'S ALLOWANCE FOR LOAN LOSSES MAY NOT BE ADEQUATE TO COVER ACTUAL LOAN LOSSES.
As a lender, CNB is exposed to the risk that its customers will be unable
to repay their loans according to their terms and that any collateral securing
the payment of their loans may not be sufficient to assure repayment. Credit
losses are inherent in the lending business and could have a material adverse
effect on CNB's operating results.
CNB makes various assumptions and judgments about the collectability of its
loan portfolio and provides an allowance for inherent risk of losses based on a
number of factors. If its judgments are wrong, its allowance for loan losses may
not be sufficient to cover its loan losses. CNB may have to increase the
allowance in the future. Material additions to its allowance for loan losses
would decrease its net income.
23
<PAGE> 25
CNB CANNOT PREDICT HOW CHANGES IN TECHNOLOGY WILL IMPACT ITS BUSINESS.
The financial services market, including banking services, is increasingly
affected by advances in technology, including developments in:
- telecommunications;
- data processing;
- automation;
- Internet-based banking;
- telebanking; and
- debit cards and so-called "smart cards."
CNB's ability to compete successfully in the future will depend on whether
CNB can anticipate and respond to technological changes. To develop these and
other new technologies CNB will likely have to make additional capital
investments. Although CNB continually invests in new technology, we cannot
assure you that CNB will have sufficient resources or access to the necessary
proprietary technology to remain competitive in the future.
THE YEAR 2000 PROBLEM COULD HURT CNB'S OPERATIONS AND PROFITS.
CNB relies upon computers to conduct its daily business. If its computer
systems fail to recognize a date using "00" as the year 2000, CNB may be unable
to do its routine business and provide service to its customers. The failure of
the computer systems of parties CNB does business with or utilities, including
the electric and telephone companies, to recognize the year 2000 may also
disrupt its operations. For example, CNB may not be able to process withdrawals
or deposits, prepare account statements or engage in any of the transactions
that constitute its normal operations. This could hurt CNB's profits.
The OCC, CNB's primary federal bank regulator, along with the other federal
bank regulators, has identified the year 2000 issue as a substantive area of
examination for both regularly scheduled and special bank examinations. Under
regulatory guidelines issued by the federal banking regulators, CNB must have
substantially completed its testing of both internally and externally supplied
systems and all renovations by June 30, 1999. Because of this oversight by the
federal bank regulatory agencies, if CNB does not become year 2000 compliant,
CNB could become subject to administrative remedies similar to those imposed on
financial institutions otherwise found not to be operating in a safe and sound
manner, including remedies available under prompt corrective action regulations.
Although CNB carefully considers the year 2000 readiness of its potential
commercial borrowers, the failure of any such borrowers to adequately address
the year 2000 issue could
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impact their ability to repay their loans. If its borrowers do not achieve year
2000 compliance and are unable to repay their loans, CNB's operations could be
adversely affected.
There has been limited litigation filed against corporations regarding the
year 2000 problem and a corporation's compliance efforts. However, the law in
this area will probably continue to develop well into the new millennium. If CNB
experiences a year 2000 failure, its exposure could be significant and material,
unless there is legislative action to limit year 2000 liability. Legislation has
been introduced in several jurisdictions regarding the year 2000 problem.
However, CNB cannot be sure that legislation will be enacted in jurisdictions
where CNB does business that will limit any potential liability.
WE MAY BE ADVERSELY AFFECTED BY CHANGES IN LAWS AND REGULATIONS AFFECTING THE
FINANCIAL SERVICES INDUSTRY.
The Bank is subject to extensive regulation and supervision as a national
bank. The regulatory authorities have extensive discretion in connection with
their supervision and enforcement activities and their examination policies,
including the imposition of restrictions on the operation of a bank, the
classification of assets by an institution and requiring an increase in a
national bank's allowance for loan losses. Any change in the regulatory
structure or the applicable statutes or regulations, whether by the regulators
or Congress, could have a material impact on CNB, the Bank, and its operations.
ACCOUNTING TREATMENT
For financial reporting purposes, CNB treats the Trust as its subsidiary.
CNB includes the Trust's accounts in its consolidated financial statements. The
capital securities are presented as a separate line item after liabilities and
before stockholders' equity in its consolidated balance sheet. Appropriate
disclosures about the capital securities, the guarantee and the junior
subordinated debentures are included in the notes to its consolidated financial
statements. For financial reporting purposes, since the capital securities are
not classified as debt, CNB records distributions payable on the capital
securities as a non-interest expense in its consolidated statements of income,
consistent with practice generally followed by issuers of this type of security.
CNBF CAPITAL TRUST I
CNB organized the Trust as a statutory business trust under Delaware law
pursuant to the trust agreement that CNB, as sponsor, and the trustees executed.
The issuer trustees filed a certificate of trust with the Delaware Secretary of
State on June 14, 1999.
The Trust exists solely to:
- issue and sell the original capital securities and the common
securities;
- use the proceeds from the sale of the original capital securities and
common securities to purchase the original junior subordinated
debentures;
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- fulfill its obligations under the registration rights agreement and
issue the exchange securities;
- maintain its status as a grantor trust for federal income tax
purposes; and
- engage in other activities that are necessary or incidental to these
purposes.
Accordingly, the junior subordinated debentures are the sole assets of the
Trust, and payments under the junior subordinated debentures are the sole source
of revenue of the Trust.
CNB purchased and will hold all of the common securities of the Trust. The
common securities represent an aggregate liquidation amount equal to
approximately 4% of the Trust's total capitalization. The capital securities
represent the remaining approximately 96% of the Trust's total capitalization.
The common securities have terms substantially identical to the capital
securities. However, if CNB defaults on its payments under the junior
subordinated debentures, the Trust will only pay cash distributions and
liquidation, redemption and other amounts payable to CNB with respect to the
common securities after it pays you these amounts on the capital securities.
The Trust has a term of approximately 30 years, but CNB may dissolve it
earlier as provided in the trust agreement. The issuer trustees conduct the
Trust's business and affairs. The issuer trustees are:
- Wilmington Trust Company, as property trustee;
- Wilmington Trust Company, as Delaware trustee; and
Three individuals who are CNB's employees are the administrators of the Trust.
The holders of at least a majority in aggregate liquidation amount of the
capital securities can replace or remove any of the issuer trustees for cause.
If an event of default exists under the trust agreement, the holders of the
capital securities with at least a majority of aggregate liquidation amount of
the capital securities can remove and replace the property trustee and the
Delaware trustee with or without cause. Only CNB, as owner of all of the common
securities, can remove or replace the administrators. The duties and obligations
of each trustee and the administrators are governed by the trust agreement.
CNB will pay all fees and expenses related to the Trust and the exchange
offer, as well as all of the ongoing costs and expenses of the Trust. CNB will
not be responsible for the Trust's obligations under the capital securities,
except as provided by its guarantee of the capital securities.
The Trust has no separate financial statements. The statements would not be
material to you because the Trust has no independent operations.
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The principal executive office of the Trust is c/o CNB, 24 Church Street,
Canajoharie, NY 13317 and its telephone number is (518) 673-3243.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the original capital securities, CNB and the
Trust entered into the registration rights agreement with Ryan, Beck & Co., the
initial purchaser of the original capital securities, pursuant to which CNB and
the Trust agreed to file and to use their reasonable best efforts to cause to be
declared effective by the Securities and Exchange Commission a registration
statement with respect to the exchange of the original capital securities for
capital securities with terms identical in all material respects to the terms of
the original capital securities. A copy of the registration rights agreement has
been filed as an Exhibit to the registration statement of which this prospectus
is a part.
The exchange offer is being made to satisfy the contractual obligations of
CNB and the Trust under the registration rights agreement. The form and terms of
the exchange capital securities are the same as the form and terms of the
original capital securities except that the exchange capital securities:
- have been registered under the Securities Act and therefore will not
be subject to certain restrictions on transfer under federal and state
securities laws, and
- will not provide for any increase in their distribution rate.
The original capital securities provide that if a registration statement
relating to the exchange offer has not been filed by January 3, 2000 and
declared effective by February 2, 2000, the distribution rate borne by the
original capital securities will increase by 0.25% per annum until the exchange
offer is consummated. Upon consummation of the exchange offer, holders of
original capital securities will not be entitled to any increase in the
distribution rate thereon or any further registration rights under the
registration rights agreement. Please refer to "Risk Factors--Risks Related to
the Capital Securities and the Junior Subordinated Debentures--Consequences of a
Failure to Exchange Original Capital Securities."
The exchange offer is not being made to, and the Trust will not accept
tenders for exchange from, holders of original capital securities in any
jurisdiction in which the exchange offer or the acceptance thereof would not be
in compliance with the securities or blue sky laws of that jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to
the exchange offer means any person in whose name the original capital
securities are registered on the books of the Trust or any other person who has
obtained a properly completed bond power from the registered holder, or any
participant in the DTC system whose name appears on a security position listing
as the holder of such original capital securities and who desires to deliver
such original capital securities by book-entry transfer at DTC.
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Pursuant to the exchange offer, CNB will exchange as soon as practicable
after the date hereof, the original guarantee for the exchange guarantee and the
original junior subordinated debentures, in an amount corresponding to the
original capital securities accepted for exchange, for a like aggregate
principal amount of the exchange junior subordinated debentures. The exchange
guarantee and the exchange junior subordinated debentures have been registered
under the Securities Act.
TERMS OF THE EXCHANGE OFFER
The Trust offers, upon the terms and subject to the conditions set forth in
this prospectus and in the accompanying letter of transmittal, to exchange up to
$18,000,000 aggregate liquidation amount of exchange capital securities for a
like aggregate liquidation amount of original capital securities properly
tendered on or prior to the expiration date and not properly withdrawn in
accordance with the procedures described below. The Trust will issue, promptly
after the expiration date, an aggregate liquidation amount of up to $18,000,000
of exchange capital securities in exchange for a like aggregate liquidation
amount of outstanding original capital securities tendered and accepted in
connection with the exchange offer. Holders may tender their original capital
securities in whole or in part in a liquidation amount of not less than $100,000
(100 capital securities) or any integral multiple of $1,000 liquidation amount
(one capital security) in excess of $100,000, provided that if any original
capital securities are tendered in exchange for part, the untendered liquidation
amount must be $100,000 or any integral multiple of $1,000 in excess of
$100,000.
The exchange offer is not conditioned upon any minimum liquidation amount
of original capital securities being tendered. As of the date of this
prospectus, $18,000,000 aggregate liquidation amount of the original capital
securities is outstanding.
Holders of original capital securities do not have any appraisal or
dissenters' rights in connection with the exchange offer. Original capital
securities which are not tendered for or are tendered but not accepted in
connection with the exchange offer will remain outstanding and be entitled to
the benefits of the trust agreement, but will not be entitled to any further
registration rights under the registration rights agreement. Please refer to
"Risk Factors--Risks Related to the Capital Securities and the Junior
Subordinated Debentures--Consequences of a Failure to Exchange Original Capital
Securities."
If any tendered original capital securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted original capital
securities will be returned, without expense, to the tendering holder promptly
after the expiration date.
Holders who tender original capital securities in connection with the
exchange offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the letter of transmittal, transfer taxes with
respect to the exchange of original capital securities in connection with the
exchange offer. CNB will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the exchange offer. You
should read "--Fees and Expenses" for additional information regarding fees and
expenses in connection with the exchange offer.
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Neither the Board of Directors of CNB nor any issuer trustee of the Trust
makes any recommendation to holders of original capital securities whether to
tender or refrain from tendering all or any portion of their original capital
securities pursuant to the exchange offer. In addition, no one has been
authorized to make any such recommendation. Holders of original capital
securities must make their own decision whether to tender pursuant to the
exchange offer and, if so, the aggregate amount of original capital securities
to tender based on such holders own financial position and requirements.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The expiration date is 5:00 p.m., New York City time, on , 1999,
unless the exchange offer is extended by CNB or the Trust (in which case the
expiration date shall be the latest date and time to which the exchange offer
is extended).
We expressly reserve the right in our sole and absolute discretion, subject
to applicable law, at any time and from time to time:
- to delay the acceptance of the original capital securities for
exchange,
- to terminate the exchange offer (whether or not any original capital
securities have previously been accepted for exchange) if we
determine, in our sole and absolute discretion, that any of the events
or conditions referred to under "--Conditions to the Exchange Offer"
have occurred or exist,
- to extend the expiration date of the exchange offer and retain all
original capital securities tendered pursuant to the exchange offer,
subject, however, to the right of holders of original capital
securities to withdraw their tendered original capital securities as
described under "--Withdrawal Rights," and
- to waive any condition or otherwise amend the terms of the exchange
offer in any respect.
If the exchange offer is amended in a manner determined by us to constitute
a material change, or if we waive a material condition of the exchange offer, we
will promptly disclose such amendment by means of a prospectus supplement that
will be distributed to the registered holders of the original capital
securities, and we will extend the exchange offer to the extent required by Rule
14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the exchange agent and by
making a public announcement thereof, and such announcement in the case of an
extension will be made no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled expiration date. Without limiting
the manner in which we may choose to make any public announcement and subject to
applicable law, we have no obligation to publish, advertise or otherwise
communicate any such public announcement other than by issuing a release to an
appropriate news agency.
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ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF EXCHANGE CAPITAL SECURITIES
Upon the terms and subject to the conditions of the exchange offer, the
Trust will promptly after the expiration date exchange, and will issue to the
exchange agent, exchange capital securities for original capital securities
validly tendered and not withdrawn.
In all cases, delivery of exchange capital securities in exchange for
original capital securities tendered and accepted for exchange pursuant to the
exchange offer will be made only after timely receipt by the exchange agent of:
- original capital securities or a book-entry confirmation of a
book-entry transfer of original capital securities into the exchange
agent's account at DTC, including an agent's message if the tendering
holder has not delivered a letter of transmittal,
- the letter of transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, or (in the
case of a book-entry transfer) an agent's message in lieu of the
letter of transmittal, and
- any other documents required by the letter of transmittal.
The term "book-entry confirmation" means a timely confirmation of a
book-entry transfer of original capital securities into the exchange agent's
account at DTC. The term "agent's message" means a message, transmitted by DTC
to and received by the exchange agent and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment from
the tendering participant, which acknowledgment states that such participant has
received and agrees to be bound by the letter of transmittal and that we may
enforce such letter of transmittal against such participant.
Subject to the terms and conditions of the exchange offer, we will be
deemed to have accepted for exchange, and thereby exchanged, original capital
securities validly tendered and not withdrawn as, if and when the Trust gives
oral or written notice to the exchange agent of our acceptance of those original
capital securities for exchange pursuant to the exchange offer. The exchange
agent will act as agent for the Trust for the purpose of receiving tenders of
original capital securities, letters of transmittal and related documents, and
as agent for tendering holders for the purpose of receiving original capital
securities, letters of transmittal and related documents and transmitting
exchange capital securities to validly tendering holders. The exchange will be
made promptly after the expiration date. If, for any reason whatsoever,
acceptance for exchange or the exchange of any original capital securities
tendered pursuant to the exchange offer is delayed (whether before or after the
Trust's acceptance for exchange of original capital securities) or we extend the
exchange offer or are unable to accept for exchange or exchange original capital
securities tendered pursuant to the exchange offer, then, without prejudice to
our rights set forth herein, the exchange agent may, nevertheless, on our behalf
and subject to Rule 14e-1(c) under the Exchange Act, retain tendered original
capital securities and such original capital securities may not be withdrawn
except to the extent tendering holders are entitled to withdrawal rights as
described under "--Withdrawal Rights."
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Pursuant to the letter of transmittal or agent's message in lieu thereof, a
holder of original capital securities will warrant and agree in the letter of
transmittal that it has full power and authority to tender, exchange, sell,
assign and transfer original capital securities, that the Trust will acquire
good, marketable and unencumbered title to the tendered original capital
securities, free and clear of all liens, restrictions, charges and encumbrances,
and the original capital securities tendered for exchange are not subject to any
adverse claims or proxies. The holder also will warrant and agree that it will,
upon request, execute and deliver any additional documents deemed by CNB, the
Trust or the exchange agent to be necessary or desirable to complete the
exchange, sale, assignment and transfer of the original capital securities
tendered pursuant to the exchange offer.
PROCEDURES FOR TENDERING ORIGINAL CAPITAL SECURITIES
Valid Tender. Except as set forth below, in order for original capital
securities to be validly tendered pursuant to the exchange offer, a properly
completed and duly executed letter of transmittal (or facsimile thereof), with
any required signature guarantees, or (in the case of a book-entry transfer) an
agent's message in lieu of a letter of transmittal, and any other required
documents, must be received by the exchange agent at one of its addresses set
forth under "--Exchange Agent." In addition, either:
- tendered original capital securities must be received by the exchange
agent,
- the original capital securities must be tendered pursuant to the
procedures for book-entry transfer set forth below and a book-entry
confirmation, including an agent's message if the tendering holder has
not delivered a letter of transmittal, must be received by the
exchange agent, in each case on or prior to the expiration date, or
- the guaranteed delivery procedures set forth below must be complied
with.
If less than all of the original capital securities are tendered, a
tendering holder should fill in the amount of original capital securities being
tendered in the appropriate box on the letter of transmittal or so indicate in
an agent's message in lieu of the letter of transmittal and the untendered
liquidation amount must be $100,000 or any integral multiple of $1,000 in excess
of $100,000. The entire amount of original capital securities delivered to the
exchange agent will be deemed to have been tendered unless otherwise indicated.
The method of delivery of certificates, the letter of transmittal and all
other required documents is at the option and sole risk of the tendering holder,
and delivery will be deemed made only when actually received by the exchange
agent. If delivery is by mail, registered mail, return-receipt requested,
properly insured, or an overnight delivery service is recommended. In all cases,
sufficient time should be allowed to ensure a timely delivery.
Book-Entry Transfer. The exchange agent will establish an account with
respect to the original capital securities at DTC for purposes of the exchange
offer within two business days after the date of this prospectus. Any financial
institution that is a participant in DTC's book-entry transfer facility system
may make a book-entry delivery of the original capital securities by causing DTC
to transfer the original capital securities into the exchange agent's account at
DTC
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in accordance with DTC's procedures for transfers. However, although delivery of
original capital securities may be effected through book-entry transfer into the
exchange agent's account at DTC, the letter of transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or an agent's message in lieu of the letter of transmittal, and any
other required documents, must in any case be delivered to and received by the
exchange agent at its address set forth under "--Exchange Agent" on or prior to
the expiration date, or the guaranteed delivery procedure set forth below must
be complied with.
Delivery of documents to DTC in accordance with DTC's procedures does not
constitute delivery to the exchange agent.
Signature Guarantees. Certificates for the original capital securities need
not be endorsed and signature guarantees on the letter of transmittal are
unnecessary unless:
- a certificate for the original capital securities is registered in a
name other than that of the person surrendering the certificate or
- the holder completes the box entitled "Special Issuance Instructions"
or "Special Delivery Instructions" in the letter of transmittal.
In those cases, thecertificates for original capital securities must be duly
endorsed or accompanied by a properly executed bond power, with the endorsement
or signature on the bond power and on the letter of transmittal guaranteed by a
firm or other entity identified in Rule 17Ad-15 under the Exchange Act as an
"eligible guarantor institution," including (as such terms are defined therein):
- a bank,
- a broker, dealer, municipal securities broker or dealer or government
securities broker or dealer,
- a credit union,
- a national securities exchange, registered securities association or
clearing agency,
- a savings association that is a participant in a Securities Transfer
Association (an "eligible institution"), unless surrendered on behalf
of such eligible institution. See Instruction 1 to the letter of
transmittal.
Guaranteed Delivery. If a holder desires to tender original capital
securities pursuant to the exchange offer and the certificates for such original
capital securities are not immediately available or time will not permit all
required documents to reach the exchange agent on or prior to the expiration
date, or the procedure for book-entry transfer cannot be completed on a timely
basis, the original capital securities may nevertheless be tendered, provided
that all of the following guaranteed delivery procedures are complied with:
- the tenders are made by or through an eligible institution;
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- a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form accompanying the letter of transmittal, is
received by the exchange agent, as provided below, on or prior to the
expiration date; and
- the certificates (or a book-entry confirmation) representing all
tendered original capital securities, in proper form for transfer,
together with a properly completed and duly executed letter of
transmittal (or facsimile thereof), or agent's message in lieu
thereof, with any required signature guarantees and any other
documents required by the letter of transmittal, are received by the
exchange agent within three New York Stock Exchange trading days after
the date of execution of the Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or transmitted
by facsimile or mail to the exchange agent and must include a guarantee by an
eligible institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of exchange
capital securities in exchange for original capital securities tendered and
accepted for exchange pursuant to the exchange offer will in all cases be made
only after timely receipt by the exchange agent of original capital securities,
or of a book-entry confirmation with respect to such original capital
securities, and a properly completed and duly executed letter of transmittal (or
facsimile thereof), or agent's message in lieu thereof, together with any
required signature guarantees and any other documents required by the letter of
transmittal. Accordingly, the delivery of exchange capital securities might not
be made to all tendering holders at the same time, and will depend upon when
original capital securities, book-entry confirmations with respect to original
capital securities and other required documents are received by the exchange
agent.
Our acceptance for exchange of original capital securities tendered
pursuant to any of the procedures described above will constitute a binding
agreement between the tendering holder, CNB and the Trust upon the terms and
subject to the conditions of the exchange offer.
Determination of Validity. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered original capital securities will be determined by us, in our sole
discretion, whose determination shall be final and binding on all parties. We
reserve the absolute right, in our sole and absolute discretion, to reject any
and all tenders determined by us not to be in proper form or the acceptance of
which, or exchange for, may, in the opinion of our counsel, be unlawful. We also
reserve the absolute right, subject to applicable law, to waive any of the
conditions of the exchange offer as set forth under "--Conditions to the
Exchange Offer" or any condition or irregularity in any tender of original
capital securities of any particular holder whether or not similar conditions or
irregularities are waived in the case of other holders.
Our interpretation of the terms and conditions of the exchange offer
(including the letter of transmittal and the instructions thereto) will be final
and binding. No tender of original capital securities will be deemed to have
been validly made until all irregularities with respect to such tender have been
cured or waived. None of CNB, the Trust, any affiliates or assigns of CNB or
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the Trust, the exchange agent or any other person shall be under any duty to
give any notification of any irregularities in tenders or incur any liability
for failure to give any such notification.
If any letter of transmittal, endorsement, bond power, power of attorney or
any other document required by the letter of transmittal is signed by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, such person
should so indicate when signing, and unless waived by us, proper evidence
satisfactory to us, in our sole discretion, of the person's authority to so act
must be submitted.
A beneficial owner of original capital securities that are held by or
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee or custodian is urged to contact such entity promptly if such
beneficial holder wishes to participate in the exchange offer.
RESALE OF EXCHANGE CAPITAL SECURITIES
The Trust is making the exchange offer for the exchange capital securities
in reliance on the position of the staff of the Division of Corporation Finance
of the Securities and Exchange Commission as set forth in certain interpretive
letters addressed to third parties in other transactions. However, neither CNB
nor the Trust sought its own interpretive letter and there can be no assurance
that the staff of the Division of Corporation Finance of the Securities and
Exchange Commission would make a similar determination with respect to the
exchange offer as it has in such interpretive letters to third parties. Based on
these interpretations by the staff of the Division of Corporation Finance of the
Securities and Exchange Commission, and subject to the two immediately following
sentences, we believe that exchange capital securities issued pursuant to this
exchange offer in exchange for original capital securities may be offered for
resale, resold and otherwise transferred by a holder thereof (other than a
holder who is a broker-dealer) without further compliance with the registration
and prospectus delivery requirements of the Securities Act, provided that such
exchange capital securities are acquired in the ordinary course of the holder's
business and that the holder is not participating, and has no arrangement or
understanding with any person to participate, in a distribution (within the
meaning of the Securities Act) of the exchange capital securities. However, any
holder of original capital securities who is an affiliate of CNB or the Trust or
who intends to participate in the exchange offer for the purpose of distributing
exchange capital securities, or any broker-dealer who purchased original capital
securities from the Trust to resell pursuant to Rule 144A or any other available
exemption under the Securities Act:
- will not be able to rely on the interpretations of the staff of the
Division of Corporation Finance of the Securities and Exchange
Commission set forth in the above-mentioned interpretive letters,
- will not be permitted or entitled to tender such original capital
securities in the exchange offer, and
- must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any sale or other transfer of
such original capital securities, unless such sale is made pursuant to
an exemption from such requirements.
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In addition, as described below, participating broker-dealers must deliver
a prospectus meeting the requirements of the Securities Act in connection with
any resales of exchange capital securities.
Each holder of original capital securities who wishes to exchange original
capital securities for exchange capital securities in the exchange offer will be
required to represent that
- it is not an affiliate of CNB or the Trust,
- any exchange capital securities to be received by it are being
acquired in the ordinary course of its business,
- it has no arrangement or understanding with any person to participate
in a distribution (within the meaning of the Securities Act) of such
exchange capital securities, and
- if the holder is not a broker-dealer, such holder is not engaged in,
and does not intend to engage in, a distribution (within the meaning
of the Securities Act) of such exchange capital securities.
The letter of transmittal contains the foregoing representations. In addition,
we may require the holder, as a condition to the holder's eligibility to
participate in the exchange offer, to furnish to us (or our agent) in writing
information as to the number of "beneficial owners" (within the meaning of Rule
13d-3 under the Exchange Act) on behalf of whom the holder holds the capital
securities to be exchanged in the exchange offer. Each participating
broker-dealer will be deemed to have acknowledged by execution of the letter of
transmittal or delivery of an agent's message that it acquired the original
capital securities for its own account as the result of market-making activities
or other trading activities and must agree that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such exchange capital securities. The letter of transmittal states that by so
acknowledging and by delivering a prospectus, a participating broker-dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. Based on the position taken by the staff of the Division of
Corporation Finance of the Securities and Exchange Commission in the
interpretive letters referred to above, we believe that participating
broker-dealers who acquired original capital securities for their own accounts
as a result of market-making activities or other trading activities may fulfill
their prospectus delivery requirements with respect to the exchange capital
securities received upon exchange of such original capital securities (other
than original capital securities which represent an unsold allotment from the
original sale of the original capital securities) with a prospectus meeting the
requirements of the Securities Act, which may be the prospectus prepared for an
exchange offer so long as it contains a description of the plan of distribution
with respect to the resale of such exchange capital securities. Accordingly,
this prospectus, as it may be amended or supplemented from
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time to time, may be used by a participating broker-dealer during the period
referred to below in connection with resales of exchange capital securities
received in exchange for original capital securities where such original capital
securities were acquired by the participating broker-dealer for its own account
as a result of market-making or other trading activities. Subject to certain
provisions set forth in the registration rights agreement, we have agreed that
this prospectus, as it may be amended or supplemented from time to time, may be
used by a participating broker-dealer in connection with resales of exchange
capital securities for a period ending 90-days after the expiration date
(subject to extension under certain limited circumstances described below) or,
if earlier, when all exchange capital securities have been disposed of by such
participating broker-dealer. Please refer to "Plan of Distribution." However, a
participating broker-dealer who intends to use this prospectus in connection
with the resale of exchange capital securities received in exchange for original
capital securities pursuant to the exchange offer must notify CNB or the Trust,
or cause CNB or the Trust to be notified, on or prior to the expiration date,
that it is a participating broker-dealer. The notice may be given in the space
provided for that purpose in the letter of transmittal or may be delivered to
the exchange agent at one of the addresses set forth herein under "--Exchange
Agent." Any person, including any participating broker-dealer, who is an
affiliate of CNB or the Trust may not rely on the interpretive letters and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction.
In that regard, each participating broker-dealer who surrenders original
capital securities pursuant to the exchange offer will be deemed to have agreed,
by execution of the letter of transmittal or delivery of an agent's message in
lieu thereof, that, upon receipt of notice from CNB or the Trust of the
occurrence of any event or the discovery of any fact which makes any statement
contained or incorporated by reference in this prospectus untrue in any material
respect or which causes this prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by reference
herein, in light of the circumstances under which they were made, not misleading
or of the occurrence of certain other events specified in the registration
rights agreement, such participating broker-dealer will suspend the sale of
exchange capital securities (or the exchange guarantee or the exchange junior
subordinated debentures, as applicable) pursuant to this prospectus until CNB or
the Trust has amended or supplemented this prospectus to correct such
misstatement or omission and has furnished copies of the amended or supplemented
prospectus to the participating broker-dealer or CNB or the Trust has given
notice that the sale of the exchange capital securities (or the exchange
guarantee or the exchange junior subordinated debentures, as applicable) may be
resumed, as the case may be. If CNB or the Trust gives notice to suspend the
sale of the exchange capital securities (or the exchange guarantee or the
exchange junior subordinated debentures, as applicable), it shall extend the
90-day period referred to above during which participating broker-dealers are
entitled to use this prospectus in connection with the resale of exchange
capital securities by the number of days during the period from and including
the date of the giving of such notice to and including the date when
participating broker-dealers shall have received copies of the amended or
supplemented prospectus necessary to permit resales of the exchange capital
securities or to and including the date on which CNB or the Trust has given
notice that the sale of exchange capital securities (or the exchange guarantee
or the exchange junior subordinated debentures, as applicable) may be resumed,
as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of original capital securities
may be withdrawn at any time on or prior to the expiration date. In order for a
withdrawal to be effective a telegram, telex, facsimile transmission or letter
of such notice of withdrawal must be timely received by the exchange agent at
one of its addresses set forth under "--Exchange
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Agent" on or prior to the expiration date. Any notice of withdrawal must specify
the name of the holder who tendered the original capital securities to be
withdrawn, the amount of original capital securities delivered for exchange and
a statement that the holder is withdrawing his election to have these original
capital securities exchanged. If original capital securities have been delivered
or otherwise identified to the exchange agent, then prior to the physical
release of such original capital securities, the tendering holder must submit
the certificate numbers shown on the particular original capital securities to
be withdrawn and the signature on the notice of withdrawal must be guaranteed by
an eligible institution, except in the case of original capital securities
tendered for the account of an eligible institution. If original capital
securities have been tendered pursuant to the procedures for book-entry transfer
set forth in "--Procedures for Tendering original capital securities," the
notice of withdrawal must specify the name and number of the account at DTC to
be credited with the withdrawal of original capital securities, in which case a
notice of withdrawal will be effective if delivered to the exchange agent by
written or facsimile transmission. Withdrawals of tenders of original capital
securities may not be rescinded. Original capital securities properly withdrawn
will not be deemed validly tendered for purposes of the exchange offer, but may
be retendered at any subsequent time on or prior to the expiration date by
following any of the procedures described above under "--Procedures for
Tendering Original Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by us, in our sole
discretion, whose determination shall be final and binding on all parties. None
of CNB, the Trust, any affiliates or assigns of CNB or the Trust, the exchange
agent or any other person shall be under any duty to give any notification of
any irregularities in any notice of withdrawal or incur any liability for
failure to give any such notification. Any original capital securities which
have been tendered but which are withdrawn will be returned to the holder
thereof promptly after withdrawal.
DISTRIBUTIONS ON EXCHANGE CAPITAL SECURITIES
Distributions on the exchange capital securities are payable quarterly on
March 31, June 30, September 30 and December 31 of each year, at the annual
rate, reset quarterly, equal to the three-month LIBOR plus 275 basis points of
the liquidation amount to the holders of the exchange capital securities.
Distributions on the exchange capital securities will accumulate from the last
date on which a Distribution was paid on the original capital security
surrendered in exchange therefor, or if no distribution has been paid on such
capital security, from August 6, 1999, the date of the original issuance of the
original capital securities.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the exchange offer, or any
extension of the exchange offer, we will not be required to accept for exchange,
or to exchange, any original capital securities for any exchange capital
securities, and, as described below, may terminate the exchange offer (whether
or not any original capital securities have theretofore been accepted for
exchange) or may waive any conditions to or amend the exchange offer, if any of
the following conditions have occurred or exist:
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- there occurs a change in the current interpretation by the staff of
the Securities and Exchange Commission which permits the exchange
capital securities issued pursuant to the exchange offer in exchange
for original capital securities to be offered for resale, resold and
otherwise transferred by holders thereof (other than broker-dealers
and any such holder which is an affiliate of CNB or the Trust) without
compliance with the registration and prospectus delivery provisions of
the Securities Act, provided that the exchange capital securities are
acquired in the ordinary course of the holders' business and the
holders have no arrangement or understanding with any person to
participate in the distribution of the exchange capital securities; or
- any law, statute, rule or regulation has been adopted or enacted -
which, in the judgment of CNB or the Trust, would reasonably be
expected to impair its ability to proceed with the exchange offer;
- any action or proceeding has been instituted or threatened in any
court or by or before any governmental agency or body with respect to
the exchange offer which, in our judgment, would reasonably be
expected to impair the ability of the Trust or CNB to proceed with the
exchange offer;
- a banking moratorium has been declared by United States federal or New
York state authorities which, in our judgment, would reasonably be
expected to impair the ability of the Trust or CNB to proceed with the
exchange offer;
- trading on the New York Stock Exchange or generally in the United
States over-the-counter market has been suspended by order of the
Securities and Exchange Commission or any other governmental authority
which, in our judgment, would reasonably be expected to impair the
ability of the Trust or CNB to proceed with the exchange offer; or
- a stop order has been issued by the Securities and Exchange Commission
or any state securities authority suspending the effectiveness of the
Registration Statement or proceedings have been initiated or, to the
knowledge of CNB or the Trust, threatened for that purpose, or any
governmental approval which either CNB or the Trust shall, in its sole
discretion, deem necessary for the consummation of the exchange offer
as contemplated hereby has not been obtained.
If we determine in our sole and absolute discretion that any of the
foregoing events or conditions has occurred or exists, we may, subject to
applicable law, terminate the exchange offer (whether or not any original
capital securities have theretofore been accepted for exchange) or may waive any
condition or otherwise amend the terms of the exchange offer in any respect. If
the waiver or amendment constitutes a material change to the exchange offer, we
will promptly disclose the waiver or amendment by means of a prospectus
supplement that will be distributed to the registered holders of the original
capital securities and will extend the exchange offer to the extent required by
Rule 14e-1 under the Exchange Act.
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EXCHANGE AGENT
Wilmington Trust Company has been appointed as exchange agent for the
exchange offer. Delivery of the letters of transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this prospectus or of the letter of transmittal should be directed to
the exchange agent as follows:
By Registered or By Hand or Certified Mail Overnight Delivery
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attn: Kristin F. Long
Corporate Trust Operations
Confirm by telephone or for
information call:
(302) 651-1562
Facsimile Transmission
(Eligible Institutions Only):
(302) 651-1079
Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
CNB has agreed to pay the exchange agent reasonable and customary fees for
its services and will reimburse it for its reasonable out-of-pocket expenses in
connection with its services. CNB will also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this prospectus and related documents
to the beneficial owners of original capital securities, and in handling or
tendering for their customers.
Holders who tender their original capital securities for exchange will not
be obligated to pay any transfer taxes in connection the exchange. If, however,
exchange capital securities are to be delivered to, or are to be issued in the
name of, any person other than the registered holder of the original capital
securities tendered, or if a transfer tax is imposed for any reason other than
the exchange of original capital securities in connection with the exchange
offer, then the amount of those transfer taxes (whether imposed on the
registered holder or any other persons) will be payable by the tendering holder.
If satisfactory evidence of payment of those taxes or exemption therefrom is not
submitted with the letter of transmittal, the amount of the transfer taxes will
be billed directly to the tendering holder.
Neither CNB nor the Trust will make any payment to brokers, dealers or
other nominees soliciting acceptances of the exchange offer.
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DESCRIPTION OF EXCHANGE SECURITIES
The terms of the exchange securities are identical in all material respects
to the terms of the original securities, except that:
- the original securities have not been registered under the Securities
Act, are subject to restrictions on transfer under federal and state
securities laws and are entitled to certain rights under the
registration rights agreement (which rights will terminate upon
consummation of the exchange offer),
- the exchange capital securities will not provide for any increase in
their distribution rate, and
- the exchange junior subordinated debentures will not provide for - any
increase in their interest rate.
As used in this prospectus:
- "indenture" means the Indenture, dated as of August 6, 1999, between
CNB Financial Corp. and Wilmington Trust Company, as debenture
trustee, relating to the junior subordinated debentures;
- "trust agreement" means the Amended and Restated Trust Agreement,
dated as of August 6, 1999, relating to the Trust by and among CNB, as
Sponsor, Wilmington Trust Company, as property trustee, Wilmington
Trust Company, as Delaware trustee, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust;
and
- "guarantee" means the Guarantee Agreement relating to the capital
securities between CNB Financial Corp. and Wilmington Trust Company,
as guarantee trustee.
Except where otherwise indicated, the following description applies to
both the exchange securities and the original securities.
CAPITAL SECURITIES
We have summarized the material terms and provisions of the capital
securities in this section. This summary is not complete and is subject to, and
qualified by, the trust agreement, including the definitions used in the trust
agreement. This summary is also subject to, and qualified by, the Trust
Indenture Act of 1939. The trust agreement will be subject to the Trust
Indenture Act upon consummation of the exchange offer. We encourage you to read
the trust agreement for additional information.
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General
The capital securities rank equal to, and payments made on the capital
securities will be made on a pro rata basis with, the common securities of the
Trust, except as described under "--Subordination of Common Securities." The
property trustee has legal title to the junior subordinated debentures and holds
them in trust for the benefit of you and the other holders of the capital
securities. CNB's guarantee for the benefit of the holders of the capital
securities is a guarantee on a subordinated basis with respect to the capital
securities, but does not guarantee payment of distributions or amounts payable
on redemption or liquidation of the capital securities when the Trust does not
have funds legally available to pay distributions or other amounts to the
holders of the capital securities. You should read "Description of Exchange
Securities--Guarantee" for more information about CNB's guarantee.
Distributions
The capital securities represent beneficial ownership interests in the
Trust. Distributions on the capital securities will be cumulative, and
accumulate from August 6, 1999. Distributions will be made at an annual rate,
reset quarterly, equal to the three month LIBOR plus 275 basis points, of the
stated liquidation amount of $1,000, payable quarterly in arrears on the
distribution dates, which are March 31, June 30, September 30 and December 31 of
each year, to holders of the capital securities on the relevant record dates. If
the capital securities are in book-entry form, the record dates will be one
business day prior to the relevant distribution date. If the capital securities
are not in book-entry form, record dates will be the 15th day of the month in
which the distribution is to be paid.
The first distribution date for the capital securities was September 30,
1999. Each period beginning on and including a distribution date and ending on
but excluding the next distribution date is a distribution period. The amount of
distributions payable for any distribution period will be based on the actual
number of days elapsed in such period and a 360-day year.
If any distribution date would otherwise fall on a day that is not a
business day, the distribution date will be postponed to the next day that is a
business day without any additional payments for the delay, unless the
distribution would fall in the next calendar year, in which case the
distribution date will be the last business day of the calendar year. A business
day means any day other than a Saturday or a Sunday, or a day on which banking
institutions in New York, New York, Wilmington, Delaware, or the State of New
York are authorized or required by law or executive order to remain closed or a
day on which the principal corporate trust office of the property trustee is
closed for business.
The Trust's revenue available for distribution to holders of the capital
securities is limited to CNB's payments to the Trust under the junior
subordinated debentures. For more information regarding the junior subordinated
debentures, please refer to "Description of Exchange Securities--Junior
Subordinated Debentures --General." If CNB does not make interest payments on
the junior subordinated debentures, the property trustee will not have funds
available to pay distributions on the capital securities and on the common
securities. CNB guarantees the payment of distributions if and to the extent
that the Trust has funds legally
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available to pay the distributions. You should read "Description of Exchange
Securities--Guarantee" for more information about the extent of CNB's guarantee.
Determination of 3-Month LIBOR
On each determination date, the calculation agent will calculate the
distribution rate, based on 3-month LIBOR, for the distribution period
commencing on the second London Banking Day immediately following such
determination date. "3-month LIBOR" means, with respect to a distribution period
relating to a distribution date, the London interbank offered rate for
three-month, Eurodollar deposits determined in the following order of priority:
- the rate (expressed as a percentage per annum) for Eurodollar deposits
having a three-month maturity that appears on Telerate Page 3750 as of
11:00 a.m. (London time) on the related determination date;
- if such rate does not appear on Telerate Page 3750 as of 11:00 a.m.
(London time) on the related determination date, 3-month LIBOR will be
the arithmetic mean of the rates (expressed as percentages per annum)
for Eurodollar deposits having a three-month maturity that appear on
Reuters Monitor Money Rates Page LIBO ("Reuters Page LIBO") as of
11:00 a.m. (London time) on such determination date;
- if such rate does not appear on Reuters Page LIBO as of 11:00 a.m.
(London time) on the related determination date, the calculation agent
will request the principal London offices of four leading banks in the
London interbank market to provide such banks' offered quotations
(expressed as percentages per annum) to prime banks in the London
interbank market for Eurodollar deposits having a three-month maturity
as of 11:00 a.m. (London time) on such determination date. If at least
two quotations are provided, 3-month LIBOR will be the arithmetic mean
of such quotations;
- if fewer than two quotations are provided by the principal London
offices of leading banks in the London interbank market, the
calculation agent will request four major New York City banks to
provide such banks' offered quotations (expressed as percentages per
annum) to leading European banks for loans in Eurodollars as of 11:00
a.m. (London time) on such determination date. If at least two such
quotations are provided, 3-month LIBOR will be the arithmetic mean of
such quotations; and
- if fewer than two quotations are provided by major New York City
banks, 3-month LIBOR will be 3-month LIBOR determined with respect to
the distribution period immediately preceding such current
distribution period.
If the rate for Eurodollar deposits having a three-month maturity that
initially appears on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, as of 11:00 a.m. (London time) on the related determination date is
superseded on Telerate Page 3750 or Reuters Page LIBO, as
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the case may be, by a corrected rate before 12:00 noon (London time) on such
determination date, the corrected rate as so substituted on the applicable page
will be the applicable 3-month LIBOR for such determination date.
As used in this prospectus:
"calculation agent" means Wilmington Trust Company;
"determination date" means the date that is two London Banking Days
preceding the first day of any period for which a distribution will be payable;
"London Banking Day" means a day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market; and
"Telerate Page 3750" means the display designated as "Page 3750" on the Dow
Jones Telerate Service (or such other page as may replace Page 3750 on that
service or such other service or services as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits).
All percentages resulting from any calculations on the capital securities
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward
(e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and
all dollar amounts used in or resulting from such calculation will be rounded to
the nearest cent (with one-half cent being rounded upward).
On the determination date, the calculation agent will notify us and the
paying agent of the applicable distribution rate in effect for the related
distribution period. The calculation agent will, upon the request of the holder
of any capital securities, provide the distribution rate then in effect. All
calculations made by the calculation agent in the absence of manifest error will
be conclusive for all purposes and binding on us and the holders of the capital
securities.
Option to Defer Interest Payments
As long as no event of default exists, CNB has the right under the
indenture to elect to defer the payment of interest on the junior subordinated
debentures, at any time or from time to time, for no more than 20 consecutive
quarters with respect to each deferral period, provided that no deferral period
will end on a date other than an interest payment date on the junior
subordinated debentures, or extend beyond September 30, 2029, the maturity date
of the junior subordinated debentures. If CNB defers payments, the Trust will
defer quarterly distributions on the capital securities during the deferral
period. During any deferral period, distributions will continue to accrue on the
capital securities and on any accrued and unpaid distributions, compounded
quarterly from the relevant distribution date at the applicable distribution
rate, which will be equal to the applicable interest rate on the junior
subordinated debentures. The term distributions includes any accumulated
additional distributions.
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Before the end of any deferral period, CNB may extend the deferral period,
as long as the extension does not cause the deferral period to exceed 20
consecutive quarters, or, to end on a date other than an interest payment date
or extend beyond September 30, 2029. At the end of any deferral period and upon
the payment of all amounts then due on any interest payment date, CNB may elect
to begin a new deferral period, subject to the above requirements. The property
trustee will give notice of its election to begin a new deferral period to the
holders of the capital securities. No interest shall be due and payable during a
deferral period until the deferral period ends. CNB must give the property
trustee and the Delaware trustee notice of its election to defer interest
payments or to extend a deferral period at least one business day before the
earlier of:
- the date the distributions on the capital securities would have been
payable except for the election to begin a deferral period; and
- the date the property trustee is required to give notice to holders of
the capital securities of the record date or the date distributions
are payable, but in any event not less than one business day prior to
the record date.
There is no limitation on the number of times that CNB may elect to begin a
deferral period. Please refer to "Description of Exchange Securities--Junior
Subordinated Debentures--Option to Extend Interest Payment Date" and "Certain
Federal Income Tax Consequences--Interest Income and Original Issue Discount."
During any deferral period, CNB may not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of its
capital stock;
- make any payment of principal of, or interest or premium, if any, on
or repay, repurchase or redeem any of its debt securities that rank
equal or junior to the junior subordinated debentures; or
- make any guarantee payments with respect to any guarantee of the debt
securities of any subsidiary if such guarantee ranks equal or junior
to the junior subordinated debentures.
Notwithstanding the foregoing, during a deferral period CNB may make the
following payments:
- dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, its capital stock,
- any declaration of a dividend in connection with the implementation of
a stockholders' rights plan, or the issuance of rights, stock or other
property under any stockholders' rights plan in the future, or the
redemption or repurchase of any rights pursuant thereto,
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- payments under the guarantee,
- as a result of a reclassification of its capital stock or the exchange
or conversion of one class or series of its capital stock or
indebtedness for another class or series of its capital stock,
- the purchase of fractional interests in shares of its capital stock
pursuant to the conversion or exchange provisions of the capital stock
or the security being converted or exchanged, and
- repurchases, redemptions or other acquisitions of shares of its
capital stock in connection with any employment contract, benefit plan
or similar arrangements with or for the benefit of any one or more of
its directors, officers, employees or consultants in connection with
any of its dividend reinvestment or shareholder stock purchase plans
or in connection with the issuance of its capital stock (or securities
convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable deferral period.
CNB does not currently intend to exercise its right to defer payments of
interest on the junior subordinated debentures. CNB's obligations under the
guarantee to make payments of distributions is limited to the extent that the
Trust has funds legally available to pay distributions. You should read
"Description of Exchange Securities--Guarantee" for more information about the
extent of CNB's guarantee.
Redemption
Upon repayment on September 30, 2029 or prepayment, in whole or in part
prior to September 30, 2029, of the junior subordinated debentures (other than
following the distribution of the junior subordinated debentures to you as a
holder of the capital securities and CNB, as the holder of the common
securities), the property trustee will apply the proceeds from the repayment or
prepayment of the junior subordinated debentures (as long as the property
trustee has received written notice no later than 45 days before the repayment)
to redeem at a redemption price equal to the liquidation amount, plus accrued
and unpaid distributions on the capital securities an amount of trust securities
having an aggregate liquidation amount equal to the principal amount of the
junior subordinated debentures paid to the Trust. CNB will give notice of any
redemption between 30 and 60 days prior to the redemption date.
If CNB prepays less than all of the junior subordinated debentures on a
redemption date, then the property trustee will allocate the proceeds of the
prepayment on a pro rata basis among the capital securities and the common
securities. If a court of competent jurisdiction enters an order to dissolve the
Trust, the junior subordinated debentures will be subject to optional prepayment
in whole, but not in part, on or after September 30, 2009.
CNB has the right to prepay the junior subordinated debentures:
- in whole or in part, on or after September 30, 2009; and
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- in whole but not in part, at any time prior to September 30, 2009, if
there are changes in the bank regulatory, investment company or tax
laws that, in the opinion of counsel experienced in such matters,
would adversely affect the status of the Trust, the capital
securities, the common securities or the junior subordinated
debentures.
CNB may have to obtain regulatory approval, including the approval of the
Federal Reserve Board, before CNB redeem any junior subordinated debentures.
Please refer to "Description of Exchange Securities--Junior Subordinated
Debentures--Optional Prepayment" and "--Special Event Prepayment" for
information on prepayment of the junior subordinated debentures.
Liquidation of the Trust and Distribution of Junior Subordinated Debentures
CNB, as holder of the outstanding common securities, has the right at any
time to dissolve the Trust and, after satisfying the liabilities owed to the
Trust's creditors as required by applicable law, CNB has the right to distribute
the junior subordinated debentures to the holders of the capital securities and
to CNB as holder of the common securities. CNB's right to dissolve the Trust is
subject to its receiving any required regulatory approval.
The Trust will automatically dissolve if:
- certain bankruptcy events occur with respect to CNB, or CNB dissolves
or liquidates;
- CNB distributes junior subordinated debentures having a principal
amount equal to the liquidation amount of the capital securities to
holders of the capital securities and CNB, as holder of the common
securities, has given written directions to the property trustee to
dissolve the Trust (which direction is at CNB's option and, except as
described above, wholly within its discretion, as sponsor);
- the Trust redeems all of the capital securities as described under
"--Redemption;"
- the Trust's term expires; or
- a court of competent jurisdiction enters an order for the dissolution
of the Trust.
If the Trust is dissolved as described above, the Trust will be
liquidated by the issuer trustees as quickly as the issuer trustees determine to
be possible by distributing to holders of the capital securities and the common
securities, after satisfying the liabilities owed to the Trust's creditors as
provided by applicable law, junior subordinated debentures having a principal
amount equal to the liquidation amount of the capital securities and the common
securities, unless the property trustee determines that this distribution is not
practicable. If the property
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trustee determines that this distribution is not practicable, the holders of the
capital securities and the common securities will be entitled to receive an
amount equal to the aggregate of the liquidation amount plus accumulated and
unpaid distributions on the capital securities and the common securities to the
date of payment (such amount being the "liquidation distribution") out of the
assets of the Trust legally available for distribution to holders, after
satisfying the liabilities owed to the Trust's creditors as provided by
applicable law. If the liquidation distribution can be paid only in part because
the Trust has insufficient assets legally available to pay the full amount of
the liquidation distribution, and if a debenture event of default exists, the
capital securities will have a priority over the common securities. For more
information, please refer to "--Subordination of Common Securities."
After the liquidation date is fixed for any distribution of junior
subordinated debentures to holders of the capital securities and the common
securities:
- the capital securities and the common securities will no longer be
deemed to be outstanding;
- DTC or its nominee will receive in respect of each registered global
certificate representing capital securities and the common securities
a registered global certificate representing the junior subordinated
debentures to be delivered upon this distribution; and
- any certificates representing capital securities and the common
securities not held by DTC or its nominee will be deemed to represent
junior subordinated debentures having a principal amount equal to the
liquidation amount of those capital securities and the common
securities, and bearing accrued and unpaid interest in an amount equal
to the accumulated and unpaid distributions on those capital
securities and the common securities until such certificates are
presented to the administrators or their agent for cancellation, in
which case CNB will issue to those holders, and the Delaware trustee
will authenticate, a certificate representing the junior subordinated
debentures.
We cannot assure you of the market prices for the capital securities or the
junior subordinated debentures that the issuer trustees may distribute to you in
exchange for the capital securities if a dissolution and liquidation of the
Trust were to occur. Accordingly, the capital securities that you purchase, or
the junior subordinated debentures that you may receive upon a dissolution and
liquidation of the Trust, may trade at a discount to the price that you paid to
purchase the capital securities.
If CNB elects not to prepay the junior subordinated debentures prior to
maturity and either elects not to or is unable to liquidate the Trust and
distribute the junior subordinated debentures to holders of the capital
securities and the common securities, the capital securities and the common
securities will remain outstanding until the repayment of the junior
subordinated debentures on September 30, 2029.
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Redemption Procedures
If CNB redeems the junior subordinated debentures, the Trust will redeem
capital securities and the common securities at the applicable redemption price
with the proceeds that it receives from its redemption of the junior
subordinated debentures. Any redemption of capital securities and the common
securities will be made and the applicable redemption price will be payable on
the redemption date only to the extent that the Trust has funds legally
available to pay the applicable redemption price. For more information, you
should refer to "--Subordination of Common Securities."
If the Trust gives a notice of redemption for the capital securities, then,
by 12:00 noon, New York City time, on the redemption date, to the extent funds
legally are available, with respect to:
- the capital securities held by DTC or its nominees, the property
trustee will deposit, or cause the paying agent to deposit,
irrevocably with DTC funds sufficient to pay the applicable redemption
price and will give DTC irrevocable instructions and authority to pay
the redemption price to the holders of the capital securities. For
more information, you should refer to "--Form, Denomination,
Book-Entry Procedures and Transfer."
- the capital securities held in certificated form, the property trustee
will irrevocably deposit with the paying agent funds sufficient to pay
the applicable redemption price and will give the paying agent
irrevocable instructions and authority to pay the applicable
redemption price to the holders upon surrender of their certificates
evidencing the capital securities. For more information, you should
refer to "--Payment and Paying Agency."
Notwithstanding the foregoing, distributions payable on or before the
redemption date will be payable to the holders of the capital securities on the
relevant record dates for the related distribution dates. If the Trust gives a
notice of redemption and funds are deposited as required, then upon the date of
the deposit, all rights of the holders of the capital securities called for
redemption will cease, except the right of the holders of the capital securities
to receive the applicable redemption price, without interest, and the capital
securities called to be redeemed will cease to be outstanding.
If any redemption date for the capital securities is not a business day,
then the applicable redemption price, without interest or any other payment in
respect of the delay, will be paid on the next business day, except that, if the
next business day falls in the next calendar year, the payment will be made on
the last business day of the calendar year. If payment of the applicable
redemption price is improperly withheld or refused and not paid either by the
Trust or by CNB pursuant to the guarantee:
- distributions on the capital securities will continue to accumulate at
the applicable rate from the redemption date originally established by
the Trust to the date such applicable redemption price is actually
paid; and
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- the actual payment date will be the redemption date for purposes of
calculating the applicable redemption price.
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 capital securities and the
common securities at its registered address. Unless CNB defaults in payment of
the applicable redemption price on, or in the repayment of, the junior
subordinated debentures, on and after the redemption date, distributions will
cease to accrue on the capital securities and the common securities called for
redemption.
Subject to applicable law (including, without limitation, U.S. federal
securities laws), CNB or its subsidiaries may at any time, and from time to
time, purchase outstanding capital securities in the open market or by private
agreement.
Subordination of Common Securities
Payment of distributions on, and the redemption price of, the capital
securities and the common securities, as applicable, will generally be made on a
pro rata basis. However, if a debenture event of default exists on any
distribution date or redemption date, no payment of any distribution on, or
applicable redemption price of, any of the common securities, and no other
payment on account of the redemption, liquidation or other acquisition of the
common securities, will be made unless payment in full in cash of all
accumulated and unpaid distributions on all of the outstanding capital
securities for all distribution periods terminating on or before the
distribution or redemption date, or payment of the applicable redemption price
is made in full. All funds available to the property trustee will first be
applied to the payment in full in cash of all distributions on, or redemption
price of, the capital securities then due and payable.
In the case of any event of default resulting from a debenture event of
default, CNB, as holder of all of the common securities, will be deemed to have
waived any right to act with respect to the event of default until the effect of
the event of default has been cured, waived or otherwise eliminated. Until any
event of default has been cured, waived or otherwise eliminated, the property
trustee will act solely on behalf of the holders of the capital securities and
not on its behalf, and only the holders of the capital securities will have the
right to direct the property trustee to act on their behalf.
Events of Default; Notice
An event of default under the indenture constitutes an event of default
under the trust agreement. Please refer to "Description of Exchange
Securities--Junior Subordinated Debentures--Debenture Events of Default" for
information regarding an event of default under the indenture.
The trust agreement provides that within five business days after any event
of default actually known to the property trustee occurs, the property trustee
will give notice of the event of default to the holders of the capital
securities, to the administrators and to us, as sponsor, unless
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the event of default has been cured or waived. CNB, as sponsor, and the
administrators are required to file annually with the property trustee a
certificate as to whether CNB and the administrators have complied with the
applicable conditions and covenants of the trust agreement.
If a debenture event of default exists as a result of any failure by CNB to
pay amounts in respect of the junior subordinated debentures when due, the
capital securities will have a preference over the common securities as
described under "--Liquidation of the Trust and Distribution of Junior
Subordinated Debentures" and "--Subordination of Common Securities." An event of
default does not entitle the holders of capital securities to accelerate the
maturity date of the capital securities.
Removal of Trustees
The holders of at least a majority in aggregate liquidation amount of the
capital securities may remove the property trustee and the Delaware trustee for
cause. If an event of default exists under the trust agreement, the holders of a
majority in liquidation amount of the outstanding capital securities may remove
the property trustee and the Delaware trustee with or without cause. In no event
will the holders of the capital securities have the right to vote to appoint,
remove or replace the administrators, because these voting rights are vested
exclusively in CNB as the holder of all of the common securities. No resignation
or removal of the property trustee or the Delaware trustee and no appointment of
a successor trustee shall be effective until the acceptance of appointment by
the successor trustee in accordance with the trust agreement.
Merger or Consolidation of Trustees
If the property trustee or the Delaware trustee is merged, converted or
consolidated into another entity, or the property trustee or the Delaware
trustee is a party to a merger, conversion or consolidation which results in a
new entity, or an entity succeeds to all or substantially all of the corporate
trust business of the property trustee, the new entity shall be the successor of
the respective trustee under the trust agreement, provided that the entity is
otherwise qualified and eligible.
Mergers, Consolidations, Amalgamations or Replacements of the Trust
The Trust may not merge with or into, consolidate, amalgamate or be
replaced by, or convey, transfer or lease substantially all of its properties
and assets to any corporation or other entity, except as described below or as
otherwise described under "--Liquidation of the Trust and Distribution of Junior
Subordinated Debentures." The Trust may, at CNB's request, as holder of the
common securities, and with the consent of a majority in liquidation amount of
the capital securities, merge with or into, consolidate, amalgamate or be
replaced by or convey, transfer or lease substantially all of its properties and
assets to a trust organized as such under the laws of any state; provided, that:
- the successor either:
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- expressly assumes all of the obligations of the Trust with
respect to the capital securities and the common securities, or
- substitutes securities for the capital securities and the common
securities that have substantially the same terms as the capital
securities and the common securities so long as the substitute
securities rank equal to the capital securities and the common
securities in priority with respect to distributions and payments
upon liquidation, redemption and otherwise;
- CNB appoints a trustee of the successor possessing the same powers and
duties as the property trustee with respect to the junior subordinated
debentures;
- the substitute securities are listed, or any substitute securities
will be listed upon notification of issuance, on any national
securities exchange or other organization on which the capital
securities and the common securities are then listed or quoted, if
any;
- if the capital securities, substitute securities or junior
subordinated debentures are rated by any nationally recognized
statistical rating organization prior to such transaction, the
transaction does not cause any of those securities to be downgraded by
the rating organization;
- the transaction does not adversely affect the rights, preferences and
privileges of the holders of the capital securities and the common
securities (including any successor securities) in any material
respect;
- the successor has a purpose substantially identical to that of the
Trust;
- prior to the transaction, CNB received an opinion from independent
counsel to the Trust experienced in such matters to the effect that:
- the transaction does not adversely affect the rights, preferences
and privileges of the holders of the capital securities and the
common securities (including any successor securities) in any
material respect (other than any dilution of such holders'
interests in the new entity), and
- following the transaction, neither the Trust nor the successor
will be required to register as an investment company under the
Investment Company Act; and
- CNB, or any permitted successor or assignee owns all of the common
securities of the successor and guarantees the obligations of the
successor under the substituted securities at least to the extent
provided by the guarantee.
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Notwithstanding the foregoing, the Trust shall not, except with the consent
of holders of 100% in liquidation amount of the capital securities and the
common securities, consolidate, amalgamate, merge with or into, or be replaced
by or convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to, any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if the transaction
would cause the Trust or the successor to be classified as an association
taxable as a corporation for U.S. federal income tax purposes.
Voting Rights; Amendment of the Trust Agreement
Except as provided below and under "--Mergers, Consolidations,
Amalgamations or Replacements of the Trust," "--Removal of Trustees," and
"Description of Exchange Securities--Guarantee--Amendments and Assignment" and
as otherwise required by law and the trust agreement, the holders of the capital
securities will have no voting rights.
CNB, as holder of the common securities, together with the issuer trustees,
may amend the trust agreement from time to time, without the consent of the
holders of the capital securities:
- to cure any ambiguity, correct or supplement any provisions in the
trust agreement that may be inconsistent with any other provision, or
to make any other provisions with respect to matters or questions
arising under the trust agreement, which are not inconsistent with the
other provisions of the trust agreement;
- to modify, eliminate or add to any provisions of the trust agreement
as is necessary to ensure that at all times that any capital
securities are outstanding, the Trust will not be classified as an
association taxable as a corporation or to enable the Trust to qualify
as a grantor trust, in each case 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; or
- to modify, eliminate or add any provisions of the trust agreement to
such extent as shall be necessary to enable the Trust or CNB to
conduct an exchange offer in the manner contemplated by the
registration rights agreement;
provided, however, that in the case of the first and third clauses above the
amendment would not adversely affect in any material respect the interests of
the holders of the capital securities. Any amendments of the trust agreement
pursuant to the foregoing shall become effective when notice of the amendment is
given to the holders of the capital securities.
CNB, as holder of the common securities, together with the issuer trustees,
may amend the trust agreement:
- with the consent of holders representing a majority (based upon
liquidation amount) of the outstanding capital securities; and
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- upon receipt by the issuer trustees of an opinion of counsel
experienced in such matters to the effect that the amendment or the
exercise of any power granted to the issuer trustees in accordance
with the amendment will not affect the Trust's status as a grantor
trust for U.S. federal income tax purposes or the Trust's exemption
from status as an investment company under the Investment Company Act,
provided that, without the consent of each holder of capital securities and
common securities, no amendment may change the amount or timing of any
distribution on, or the payment required to be made in respect of, the capital
securities and the common securities as of a specified date; or restrict the
right of a holder of capital securities and the common securities to sue for the
enforcement of any payment on or after the specified date.
So long as any junior subordinated debentures are held by the property
trustee, the issuer trustees may not:
- direct the time, method and place of conducting any proceeding for any
remedy available to the Delaware trustee, or execute any trust or
power conferred on the Delaware trustee with respect to the junior
subordinated debentures;
- waive certain past defaults under the indenture;
- exercise any right to rescind or annul a declaration accelerating the
maturity of the principal of the junior subordinated debentures; or
- consent to any amendment, modification or termination of the indenture
or the junior subordinated debentures, where such consent shall be
required,
without, in each case, obtaining the prior consent of the holders of a majority
in liquidation amount of all outstanding capital securities; provided, however,
that where a consent under the indenture would require the consent of each
holder of junior subordinated debentures affected by the amendment, modification
or termination, the property trustee will not give consent without the prior
approval of each holder of the capital securities.
The issuer trustees may not revoke any action previously authorized or
approved by a vote of the holders of the capital securities except by subsequent
vote of the holders. The property trustee will notify each holder of capital
securities of any notice of default with respect to the junior subordinated
debentures. In addition to obtaining the approvals of the holders of the capital
securities, prior to taking any of the foregoing actions, the issuer trustees
will obtain an opinion of counsel experienced in such matters to the effect that
the Trust will not be classified as an association taxable as a corporation for
U.S. federal income tax purposes on account of the action.
Any required approval of holders of capital securities may be given at a
meeting of the holders convened for the purpose of approving the matter or
pursuant to written consent. The property trustee will cause a notice of any
meeting at which holders of capital securities are
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entitled to vote, or of any matter upon which action by written consent of those
holders has been taken, to be given to each holder of record of capital
securities in accordance with the trust agreement.
No vote or consent of the holders of capital securities will be required
for the Trust to redeem and cancel the capital securities in accordance with the
trust agreement.
Notwithstanding that holders of the capital securities are entitled to vote
or consent under any of the circumstances described above, any of the capital
securities that are owned by CNB, the issuer trustees or any of CNB's or any
trustee's affiliates, shall, for purposes of such vote or consent, be treated as
if they were not outstanding.
Form, Denomination, Book-Entry Procedures and Transfer
The exchange capital securities may be issued in certificated form or as
one or more registered global capital securities.
In the event that capital securities are issued in certificated form, the
capital securities will be issued in blocks having a liquidation amount of not
less than $100,000 (100 capital securities) and multiples of $1,000 in excess
thereof and may be transferred or exchanged only in such blocks in the manner
and at the offices described below.
The global capital securities will be deposited upon issuance with the
property trustee as custodian for DTC, in Wilmington, Delaware, and registered
in the name of DTC or its nominee, in each case for credit to an account of a
direct or indirect participant in DTC as described below.
Except as set forth below, the global capital securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee and only in amounts that would not cause a
holder to own less than 100 capital securities. Beneficial interests in the
global capital securities may not be exchanged for capital securities in
certificated form, except in the limited circumstances described below. Please
refer to "--Exchange of Book-Entry Capital Securities for Certificated Capital
Securities" for additional information.
Other exchange capital securities will be issued only in registered,
certificated (i.e., non-global) form. Other exchange capital securities may not
be exchanged for beneficial interests in any global capital securities, except
in the limited circumstances described below. Please refer to "--Exchange of
Certificated Capital Securities for Book-Entry Capital Securities" for
additional information.
Transfer of beneficial interests in the global capital securities will be
subject to the applicable rules and procedures of DTC and its direct or indirect
participants, which may change from time to time.
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Depository Procedures
DTC has advised us that it is a limited-purpose trust company organized
under the laws of the State of New York, a member of the Federal Reserve System,
a "clearing corporation" within the meaning of the Uniform Commercial Code and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act. DTC was created to hold securities for its participating
organizations, or participants, and to facilitate the clearance and settlement
of transactions in those securities between participants through electronic
book-entry changes in accounts of its participants, to eliminate the need for
physical movement of certificates. Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. Indirect access to DTC's system is also available indirect
participants. Indirect participants are banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly. Persons who are not participants may
beneficially own securities held by or on behalf of DTC only through
participants or indirect participants. The ownership interest and transfer of
ownership interest of each actual purchaser of each security held by or on
behalf of DTC are recorded on the records of participants and indirect
participants.
DTC also has advised us that, pursuant to procedures established by it:
- upon deposit of the global capital securities, DTC will credit the -
accounts of participants designated by the exchange agent with
portions of the liquidation amount of the global capital securities,
and
- ownership of interests in the global capital securities will be shown
on, and the transfer of ownership of the global capital securities,
will be effected only through records maintained by DTC (with respect
to participants) or by participants and indirect participants (with
respect to other owners of beneficial interests in the global capital
securities).
Registration of Capital Securities
The capital securities will be represented by one or more global
certificates registered in the name of DTC or its nominee. Beneficial interests
in the capital securities will be shown on, and transfers of the global capital
securities will be effected only through, records maintained by participants.
Except as described below, capital securities in certificated form will not be
issued in exchange for the global certificates. Please refer to "--Exchange of
Book-Entry Capital Securities for Certificated Capital Securities" for
additional information.
You may hold your interests in the global capital security directly through
DTC if you are a participant, or indirectly through organizations that are
participants. All interests in a global capital security will be subject to the
procedures and requirements of DTC. The laws of some states require that certain
persons take physical delivery in certificated form of securities that they own.
Consequently, the ability to transfer beneficial interests in a global capital
security to those persons will be limited to that extent. Because DTC can act
only on behalf of participants, which in turn act on behalf of indirect
participants and certain banks, the ability of a
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person having beneficial interests in a global capital security to pledge its
interests to persons or entities that do not participate in the DTC system, or
otherwise take actions in respect of its interests, may be affected by the lack
of a physical certificate evidencing its interests. For certain other
restrictions on the transferability of the capital securities, see "--Exchange
of Book-Entry Capital Securities for Certificated Capital Securities."
Payments on the global capital security registered in the name of DTC, or
its nominee, will be payable by the property trustee to DTC in its capacity as
the registered holder under the trust agreement. Under the terms of the trust
agreement, the property trustee will treat the persons in whose names the
capital securities, including the global capital securities, are registered as
the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Neither the property trustee nor any agent
thereof has or will have any responsibility or liability for:
- any aspect of DTC's records or any participant's or indirect
participant's records relating to, or payments made on account of,
beneficial ownership interests in the global capital securities, or
for maintaining, supervising or reviewing any of DTC's records or any
participant's or indirect participant's records relating to the
beneficial ownership interests in the global capital securities, or
- any other matter relating to the actions and practices of DTC or any
of its participants or indirect participants.
DTC has advised us that its current practice, upon receipt of any payment
on the capital securities, is to credit the accounts of the relevant
participants with the payment on the payment date, in amounts proportionate to
their respective holdings in liquidation amount of the capital securities as
shown on the records of DTC unless DTC has reason to believe it will not receive
payment on the payment date. Payments by participants and indirect participants
to the beneficial owners of capital securities will be governed by standing
instructions and customary practices and will be the responsibility of
participants or indirect participants and will not be the responsibility of DTC,
the property trustee, the Trust or CNB. None of the Trust, CNB nor the property
trustee will be liable for any delay by DTC or any of its participants or
indirect participants in identifying the beneficial owners of the capital
securities, and the Trust, CNB and the property trustee may conclusively rely
on, and will be protected in relying on, instructions from DTC or its nominee
for all purposes.
Any secondary market trading activity in interests in the global capital
securities will settle in immediately available funds, subject in all cases to
the rules and procedures of DTC and its participants. Transfers between
participants in DTC will be effected in accordance with DTC's procedures, and
will settle in same-day funds.
DTC has advised us that it will take any action permitted to be taken by a
holder of capital securities (including, without limitation, presenting the
capital securities for exchange as described below) only at the direction of one
or more participants who have an interest in DTC's global capital securities in
respect of the portion of the liquidation amount of the capital securities as to
which the participant or participants has or have given direction. However, if
an
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event of default exists under the trust agreement, DTC reserves the right to
exchange the global capital securities for legended capital securities in
certificated form and to distribute the certificated capital securities to its
participants.
We believe that the information in this section concerning DTC and its
book-entry system has been obtained from reliable sources, but we do not take
responsibility for the accuracy of this information.
Although DTC has agreed to the procedures described in this section to
facilitate transfers of interests in the global capital securities among
participants in DTC, DTC is not obligated to perform or to continue to perform
these procedures, and these procedures may be discontinued at any time. None of
the Trust, CNB nor the property trustee will have any responsibility or
liability for any aspect of the performance by DTC or its participants or
indirect participants of any of their respective obligations under the rules and
procedures governing their operations or for maintaining, supervising or
reviewing any records relating to the global capital securities that are
maintained by DTC or any of its participants or indirect participants.
Exchange of Book-Entry Capital Securities for Certificated Capital Securities
A global capital security can be exchanged for capital securities in
registered certificated form if:
- DTC notifies CNB that it is unwilling or unable to continue as
clearing agency for the global capital security and CNB fails to
appoint a successor clearing agency within 90 days of receipt of DTC's
notice, or has ceased to be a clearing agency registered under the
Exchange Act and CNB fails to appoint a successor depositary within 90
days of becoming aware of this condition;
- the Trust, in its sole discretion, elects to cause the capital
securities to be issued in certificated form; or
- a default or an event of default has occurred and is continuing.
In all cases, certificated capital securities delivered in exchange for any
global capital security will be registered in the names, and issued in any
approved denominations, requested by or on behalf of DTC (in accordance with its
customary procedures).
Payment and Paying Agency
The Trust will make payments on the capital securities that are held in
global form to DTC, which will credit the relevant accounts at DTC on the
applicable distribution dates. The Trust will make payments on the capital
securities that are not held by DTC by mailing a check to the address of the
holder entitled to the payment as the holder's address appears on the register.
The paying agent will initially be the property trustee and any co-paying agent
chosen by the property trustee and acceptable to the administrators and CNB. The
paying agent will be permitted to resign as paying agent upon 30 days' notice to
the property trustee, the
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administrators and CNB. In the event that the property trustee is no longer the
paying agent, the property trustee will appoint a successor (which must be a
bank or trust company acceptable to us) to act as paying agent.
Restrictions on Transfer
The capital securities may be transferred, only in blocks having a
liquidation amount of not less than $100,000 (100 capital securities) and
multiples of $1,000 in excess of $100,000. Any attempted sale, transfer or other
disposition of capital securities in a block having a liquidation amount of less
than $100,000 shall be deemed to be void and of no legal effect. Any such
purported transferee shall be deemed not to be the holder of the capital
securities for any purpose, including but not limited to the receipt of
distributions on the capital securities, and such purported transferee shall be
deemed to have no interest in the capital securities. You should read "Notice to
Investors" for additional information.
Registrar and Transfer Agent
The property trustee acts as registrar transfer agent and exchange agent
for the capital securities.
The registrar will register transfers of the capital securities without
charge, except for any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. The Trust will not be required to have
the transfer of the capital securities registered after they have been called
for redemption.
Information Concerning the Property Trustee
Except if an event of default exists, the property trustee will undertake
to perform only the duties specifically set forth in the trust agreement. After
an event of default, 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 is not obligated to
exercise any of the powers vested in it by the trust agreement at the request of
any holder of capital securities and the common securities, unless it is offered
reasonable indemnity against the costs, expenses and liabilities that it might
incur. If no event of default exists and the property trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
the trust agreement or is unsure of the application of any provision of the
trust agreement, and the matter is not one on which holders of the capital
securities or the common securities are entitled under the trust agreement to
vote, then the property trustee shall take such action as it deems advisable and
in the best interests of the holders of the capital securities and the common
securities and will have no liability, except for its own bad faith, negligence
or willful misconduct.
Miscellaneous
The administrators and the property trustee are authorized and directed to
conduct the affairs of and to operate the Trust in such a way that:
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- the Trust will not be deemed to be an investment company required to
be registered under the Investment Company Act;
- the Trust will be classified as a grantor trust for U.S. federal
income tax purposes; and
- the junior subordinated debentures will be treated as its indebtedness
for U.S. federal income tax purposes.
In connection with the foregoing, CNB, as holder of the common securities,
and the property trustee are authorized to take any action, not inconsistent
with applicable law, the certificate of trust of the Trust or the trust
agreement, that CNB and the property trustee determine in their discretion is
necessary or desirable for such purposes, as long as it does not materially
adversely affect the interests of the holders of the capital securities and the
common securities.
The trust agreement provides that
- holders of the capital securities and the common securities have no
preemptive or similar rights to subscribe for any additional capital
securities and common securities, and
- the issuance of capital securities and common securities is not
subject to preemptive rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge any
of its assets.
JUNIOR SUBORDINATED DEBENTURES
The original junior subordinated debentures were, and the exchange junior
subordinated debentures will be, issued under an indenture, between CNB and
Wilmington Trust Company, acting as debenture trustee. Upon effectiveness of the
exchange offer registration statement, the indenture will be qualified under the
Trust Indenture Act. We have summarized the material terms and provisions of the
junior subordinated debentures and the indenture in this section. This summary
is not complete and is subject to, and qualified by, the indenture, including
the definitions used in the indenture. This summary is also subject to, and
qualified by, the Trust Indenture Act. The indenture will be subject to the
Trust Indenture Act upon consummation of the exchange offer. We encourage you to
read the indenture for additional information.
General
The Trust invested the proceeds from the sale of the capital securities and
the common securities in the junior subordinated debentures issued by CNB. The
junior subordinated debentures bear interest at the annual rate, reset
quarterly, equal to the three-month LIBOR plus
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275 basis points, of the principal amount of the junior subordinated debentures,
payable quarterly in arrears on interest payment dates of March 31, June 30,
September 30 and December 31 of each year and at maturity to the person in whose
name each junior subordinated debenture is registered at the close of business
on the relevant record date. The first interest payment date for the junior
subordinated debentures was September 30, 1999. Each period beginning on and
including an interest payment date and ending on but excluding the next interest
payment date is an interest period.
We anticipate that, until the liquidation, if any, of the Trust, each
junior subordinated debenture will be held by the property trustee in trust for
the benefit of the holders of the capital securities. The amount of interest
payable for any interest period will be computed on the basis of the actual
number of days elapsed in such period and a 360-day year. In the event that any
interest payment date would otherwise fall on a day that is not a business day,
the interest payment date will be postponed to the next business day (without
any interest or other payment due to the delay) unless it would fall in the next
calendar year, in which case the interest payment date shall be the last
business day of the calendar year.
Accrued interest that is not paid on the applicable interest payment date
will bear additional interest (to the extent permitted by law) at the applicable
periodic interest rate, compounded quarterly from the relevant interest payment
date. The term "interest" as used in this prospectus includes quarterly interest
payments and interest on quarterly interest payments not paid on the applicable
interest payment date.
Notwithstanding anything to the contrary set forth above, if the maturity
date falls on a day that is not a business day, the payment of principal and
interest will be paid on the next business day, with the same force and effect
as if made on the maturity date, and no interest on such payments will accrue
from and after the maturity date.
The junior subordinated debentures will mature on September 30, 2029.
The junior subordinated debentures rank equal to all of CNB's other junior
subordinated debentures which may be issued to other trusts established by CNB,
in each case similar to the Trust, and are unsecured and rank subordinate and
junior to all indebtedness for money that CNB borrows to the extent and in the
manner set forth in the indenture. Please refer to "--Subordination" for
additional information concerning the subordination of the junior subordinated
debentures.
The junior subordinated debentures are effectively subordinated to all
existing and future liabilities of the Bank (including the Bank's deposit
liabilities) and Central Asset Management, Inc. and all liabilities of any of
its future subsidiaries. The indenture does not limit CNB, the Bank or Central
Asset Management, Inc. from incurring or issuing other secured or unsecured
debt, including senior indebtedness. Please refer to "--Subordination" for
additional information concerning the subordination of the junior subordinated
debentures.
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Form, Registration and Transfer
If the junior subordinated debentures are distributed to the holders of the
capital securities and the common securities, the junior subordinated debentures
may be represented by one or more global certificates registered in the name of
DTC or its nominee. The depositary arrangements for such junior subordinated
debentures are expected to be substantially similar to those in effect for the
capital securities. For a description of DTC and the terms of the depositary
arrangements relating to payments, transfers, voting rights, redemptions and
other notices and other matters, you should read "Description of Exchange
Securities--Capital Securities--Form, Denomination, Book-Entry Procedures and
Transfer."
Payment and Paying Agents
Payment of principal of (and premium, if any) and interest on the junior
subordinated debentures will be made at the office of the debenture trustee in
New York, New York or at the office of such paying agent or paying agents as CNB
may designate from time to time, except that, at its option, payment of any
interest may be made, except in the case of junior subordinated debentures in
global form:
- by check mailed to the address of the person or entity entitled to the
interest payment as such address shall appear in the register for the
junior subordinated debentures; or
- by transfer to an account maintained by the person or entity entitled
to the interest payment as specified in the register, provided that
proper transfer instructions have been received by the relevant record
date.
Payment of any interest on any junior subordinated debenture will be made
to the person or entity in whose name the subordinated debenture is registered
at the close of business on the record date for the interest payment date,
except in the case of defaulted interest. CNB may at any time designate
additional paying agents or rescind the designation of any paying agent; however
CNB will always be required to maintain a paying agent in each place of payment
for the junior subordinated debentures.
Any moneys deposited with the debenture trustee or any paying agent, or
then held by CNB, in trust for the payment of the principal of (or premium, if
any) or interest on any junior subordinated debentures and remaining unclaimed
for two years after such principal (or premium, if any) or interest has become
due and payable shall, at its request, be repaid to CNB and the holder of the
junior subordinated debentures shall thereafter look, as a general unsecured
creditor, only to CNB for payment.
Option to Extend Interest Payment Date
So long as no debenture event of default exists, CNB has the right under
the indenture to defer the payment of interest on the junior subordinated
debentures, at any time and from time to time, for no more than 20 consecutive
quarters for each deferral period, provided that no deferral
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period shall end on a date other than an interest payment date or extend beyond
September 30, 2029. At the end of a deferral period, CNB must pay all interest
then accrued and unpaid (together with interest thereon at the applicable
periodic interest rate, compounded quarterly from the relevant interest payment
date, to the extent permitted by applicable law). During a deferral period,
interest will continue to accrue, and holders of the capital securities and the
common securities or, if the junior subordinated debentures have been
distributed to holders of the capital securities and the common securities,
holders of junior subordinated debentures, will be required to include that
deferred interest in gross income for U.S. federal income tax purposes on an
accrual method of accounting prescribed by the Code and Treasury regulation
provisions on original issue discount prior to the receipt of cash attributable
to that income. You should read "Certain Federal Income Tax
Consequences--Interest Income and Original Issue Discount" for additional
information regarding the tax consequences of a deferral.
During any such deferral period, CNB may not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of its
capital stock;
- make any payment of principal of, or interest or premium, if any, on
or repay, repurchase or redeem any of its debt securities that rank
equal or junior to the junior subordinated debentures; or
- make any guarantee payments with respect to any guarantee by CNB of
the debt securities of any of its subsidiaries if such guarantee ranks
equal or junior to the junior subordinated debentures.
Notwithstanding the foregoing, during a deferral period CNB may make the
following payments:
- dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, its capital stock,
- any declaration of a dividend in connection with the implementation of
a stockholders' rights plan, or the issuance of rights, stock or other
property under any such plan in the future, or the redemption or
repurchase of any rights pursuant thereto,
- payments under the guarantee,
- as a result of a reclassification of its capital stock or the exchange
or conversion of one class or series of its capital stock or
indebtedness for another class or series of its capital stock,
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- the purchase of fractional interests in shares of its capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, and
- repurchases, redemptions or other acquisitions of shares of its
capital stock in connection with any employment contract, benefit
plans or similar arrangements with or for the benefit of any one or
more of its directors, officers, employees or consultants in
connection with any of its dividend reinvestment or shareholder stock
purchase plans or in connection with the issuance of its capital stock
(or securities convertible into or exercisable for such capital stock)
as consideration in an acquisition transaction entered into prior to
the applicable deferral period.
CNB does not currently intend to exercise its option to defer payments of
interest on the junior subordinated debentures.
Before the end of any deferral period, CNB may extend the deferral period,
as long as no event of default exists and the extension does not cause the
deferral period to exceed 20 consecutive quarterly periods, to end on a date
other than an interest payment date or to extend beyond September 30, 2029. At
the end of any deferral period and upon the payment of all then accrued and
unpaid interest (together with interest thereon at the applicable periodic
interest rate, compounded quarterly, to the extent permitted by applicable law),
CNB may elect to begin a new deferral period, subject to the requirements set
forth herein. No interest shall be due and payable during a deferral period
until the deferral period ends. CNB must give the property trustee and the
debenture trustee notice of its election at least one business day before the
earlier of:
- the date the distributions on the capital securities and the common
securities would have been payable except for the election to begin or
extend such deferral period;
- the date the property trustee is required to give notice to holders of
capital securities of the record date for such distributions; or
- the date such distributions are payable, but in any event at least one
business day prior to the record date.
The property trustee will notify holders of the capital securities of CNB's
election to begin or extend a new deferral period.
There is no limit on the number of times that CNB may elect to begin a
deferral period.
Optional Prepayment
CNB may prepay the junior subordinated debentures at its option on or after
September 30, 2009, in whole at any time or in part from time to time, subject
to its receipt of any required
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regulatory approval, at an optional prepayment price equal to 100% of the
principal amount of the junior subordinated debentures plus any accrued and
unpaid interest.
Special Event Prepayment
If there are changes in the bank regulatory, investment company or tax laws
that adversely affect the status of the Trust, the capital securities or the
junior subordinated debentures, CNB may, at its option, and subject to its
receipt of any required regulatory approval, prepay the junior subordinated
debentures, in whole but not in part, at any time within 90 days of the change
in the law, at the special event prepayment price equal to 100% of the principal
amount of the junior subordinated debentures plus any accrued and unpaid
interest. If CNB exercises its option to prepay the junior subordinated
debentures under these circumstances, then the proceeds of that prepayment must
be applied by the Trust to redeem the capital securities and the common
securities at a prepayment price equal to 100% of the principal amount of the
junior subordinated debentures so prepaid, plus, in each case, accrued and
unpaid interest on the junior subordinated debentures, if any, to the date of
prepayment. Please refer to "Description of Capital Securities--Redemption."
A change in the bank regulatory law means CNB's receipt of an opinion of
independent bank regulatory counsel experienced in such matters to the effect
that, as a result of:
- any amendment to, or change (including any announced prospective
change) in, any laws or regulations of the United States or any rules,
guidelines or policies of an applicable regulatory agency or
authority, or
- any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or decision is
announced on or after the date the capital securities and the common securities
are first issued, there is more than an insubstantial risk that CNB will not be
entitled to treat an amount equal to the liquidation amount of the capital
securities as Tier 1 Capital (or its then equivalent if CNB were subject to the
capital requirement).
A change in the investment company law means the receipt by the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of
- any amendment to, or change (including any announced prospective
change) in, any laws or regulations of the United States or any rules,
guidelines or policies of any applicable regulatory agency or
authority, or
- any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or decision is
announced on or after the date the capital securities and the common securities
are first issued, there is more than
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an insubstantial risk that the Trust is, or will be, considered an investment
company that is required to be registered under the Investment Company Act.
A change in tax law means the receipt by the Trust of an opinion of
independent counsel experienced in such matters to the effect that, as a result
of:
- any amendment to, or change (including any announced prospective
change) in, any laws or regulations of the United States or any
political subdivision or taxing authority thereof or therein, or
- any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or decision is
announced on or after the date the capital securities and the common securities
are first issued, there is more than an insubstantial risk that:
- the Trust is, or will be within 90 days of the date of delivery of
such opinion, subject to U.S. federal income tax with respect to any
income received or accrued on the junior subordinated debentures;
- interest payable by CNB on the junior subordinated debentures is not,
or within 90 days of the date of delivery of such opinion will not be,
deductible by CNB, in whole or in part, for U.S. federal income tax
purposes; or
- the Trust is, or will be within 90 days of the date of delivery of
such opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
CNB will mail any notice of prepayment between 30 and 60 days before the
prepayment date to each holder of junior subordinated debentures to be prepaid
at its registered address. Unless CNB defaults in payment of the prepayment
price, on the prepayment date interest shall cease to accrue on the junior
subordinated debentures called for prepayment.
If and for so long as the Trust is the holder of all junior subordinated
debentures and the Trust is required to pay any additional taxes, duties or
other governmental charges as a result of a change in the tax law, CNB will pay
as additional amounts on the junior subordinated debentures any amounts as may
be necessary in order that the amount of distributions then due and payable by
the Trust on the outstanding capital securities and the common securities shall
not be reduced as a result of any additional sums, including taxes, duties or
other governmental charges to which the Trust has become subject as a result of
a change in the tax law.
Certain Covenants by CNB
CNB has also covenanted that CNB will not:
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- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its
capital stock;
- make any payment of principal of, or interest or premium, if any, on
or repay, repurchase or redeem any of its debt securities that rank
equal or junior to the junior subordinated debentures; or
- make any guarantee payments with respect to any guarantee by CNB of
the debt securities of any of its subsidiaries if such guarantee ranks
equal or junior to the junior subordinated debentures;
if at such time:
- CNB has actual knowledge that there is any event that is, or with the
giving of notice or the lapse of time, or both, would be, a debenture
event of default and that CNB has not taken reasonable steps to cure;
- if the junior subordinated debentures are held by the Trust, CNB is in
default with respect to its payment of any obligations under the
guarantee; or
- CNB has given notice of its election to exercise its right to defer
interest payments on the junior subordinated debentures as provided in
the indenture and the deferral period, or any extension of the
deferral period, is continuing.
Notwithstanding the foregoing, CNB may make the following payments:
- dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, its capital stock,
- any declaration of a dividend in connection with the implementation of
a stockholders' rights plan, or the issuance of rights, stock or other
property under the plan in the future, or the redemption or repurchase
of any rights pursuant to to stockholders' rights plan,
- payments under the guarantee,
- as a result of a reclassification of its capital stock or the exchange
or conversion of one class or series of its capital stock or
indebtedness for another class or series of its capital stock,
- the purchase of fractional interests in shares of its capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, and
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- repurchases, redemptions or other acquisitions of shares of its
capital stock in connection with any employment contract, benefit plan
or similar arrangements with or for the benefit of any one or more of
its directors, officers, employees or consultants in connection with
any of its dividend reinvestment or shareholder stock purchase plans
or in connection with the issuance of its capital stock (or securities
convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable deferral period.
So long as the capital securities and the common securities remain
outstanding, CNB has also covenanted:
- to maintain 100% direct or indirect ownership of the common
securities; provided, however, that any of its permitted successors
under the indenture may succeed to its ownership of the common
securities;
- to use commercially reasonable efforts to cause the Trust to remain a
business trust, except in connection with the distribution of junior
subordinated debentures to the holders of capital securities and the
common securities in liquidation of the Trust, the redemption of all
of the capital securities and the common securities, or certain
mergers, consolidations or amalgamations, each as permitted by the
trust agreement; and
- to use commercially reasonable efforts to cause the Trust to otherwise
continue not to be classified as an association taxable as a
corporation and to be classified as a grantor trust for U.S. federal
income tax purposes.
Modification of Indenture
From time to time and at any time, CNB, together with the debenture
trustee, may, without the consent of the holders of junior subordinated
debentures, amend, waive or supplement the indenture for specified purposes,
including, among other things:
- curing ambiguities, defects or inconsistencies, provided that such
amendment in the indenture does not materially adversely affect the
interest of the holders of junior subordinated debentures, and
- qualifying, or maintaining the qualification of, the indenture under
the Trust Indenture Act.
The indenture permits CNB and the debenture trustee, with the consent of
the holders of a majority in aggregate principal amount of junior subordinated
debentures, to modify the indenture in a manner affecting the rights of the
holders of the junior subordinated debentures; provided that no modification
may, without the consent of the holders of each outstanding subordinated
debenture affected:
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- change the stated maturity date, or reduce the principal amount, of
the junior subordinated debentures,
- reduce the amount payable on prepayment or reduce the rate or extend
the time of payment of interest except pursuant to its right under the
indenture to defer the payment of interest (please refer to "--Option
to Extend Interest Payment Date"),
- make the principal of, (or premium, if any) or interest on, the junior
subordinated debentures payable in any coin or currency other than
that provided in the junior subordinated debentures,
- impair or affect the right of any holder of junior subordinated
debentures to institute suit for the payment thereof, or
- reduce the percentage of the principal amount of the junior
subordinated debentures, the holders of which are required to consent
to any such modification.
Debenture Events of Default
A "debenture event of default" is
- CNB's failure for 30 days to pay any interest (including compounded
interest and additional sums, if any) on the junior subordinated
debentures or any other debentures (about which a responsible officer
of the debenture trustee has actual knowledge) when due (subject to
the deferral of any interest due date in the case of a deferral period
with respect to the junior subordinated debentures or other debentures
as the case may be); or
- CNB's failure to pay any principal or premium, if any, on the junior
subordinated debentures or any other debentures (about which a
responsible officer of the debenture trustee has actual knowledge)
when due, whether at maturity, upon prepayment, by accelerating the
maturity or otherwise; or
- CNB's failure to observe or perform, in any material respect, any
other covenant contained in the indenture (other than a covenant, the
breach of which is specifically dealt with in the indenture) for 90
days after written notice to CNB from the debenture trustee or to CNB
and the debenture trustee from the holders of at least 25% in
aggregate outstanding principal amount of junior subordinated
debentures; or
- certain events related to CNB's bankruptcy, insolvency or
reorganization.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures have, subject to certain exceptions, the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the debenture trustee. The
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debenture trustee or the holders of not less than 25% in aggregate outstanding
principal amount of the junior subordinated debentures may declare the principal
due and payable immediately upon a debenture event of default. The holders of a
majority in aggregate outstanding principal amount of the junior subordinated
debentures may annul this declaration and waive the default if the default
(other than the non-payment of the principal of the junior subordinated
debentures which has become due solely by such acceleration) 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. If
the holders of the junior subordinated debentures fail to annul the declaration
and waive the default, the holders of a majority in aggregate liquidation amount
of the capital securities shall have the right to annul the declaration and
waive the default.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures affected may, on behalf of the holders of all the
junior subordinated debentures, waive any past default, except a default in the
payment of principal (or premium, if any) or interest (unless such default has
been cured and a sum sufficient to pay all matured installments of interest and
principal (and premium, if any) due otherwise than by acceleration has been
deposited with the debenture trustee) or a default in respect of a covenant or
provision which under the indenture cannot be modified or amended without the
consent of the holder of each outstanding junior subordinated debenture affected
thereby.
The indenture requires that CNB file with the debenture trustee a
certificate annually as to the absence of defaults specified under the
indenture.
The indenture provides that the debenture trustee may withhold notice of a
debenture event of default from the holders of the junior subordinated
debentures if the debenture trustee considers it in the interest of the holders
to withhold the notice.
Enforcement of Certain Rights by Holders of Capital Securities
If a debenture event of default exists that is attributable to CNB's
failure to pay the principal of (or premium, if any) or interest (including
compounded interest and additional sums, if any) on the junior subordinated
debentures on the due date, a registered holder of capital securities may
institute a legal proceeding directly against CNB for enforcement of payment to
that holder of an amount equal to the amount payable in respect of the junior
subordinated debentures having a principal amount equal to the aggregate
liquidation amount of the capital securities held by that holder. CNB may not
amend the indenture to remove this right to bring a direct action without the
prior written consent of the holders of all of the capital securities.
Notwithstanding any payments that CNB makes to a holder of capital securities in
connection with a direct action, CNB shall remain obligated to pay the principal
of (or premium, if any) or interest (including compounded interest and
additional sums, if any) on the junior subordinated debentures, and CNB shall be
subrogated to the rights of such holder of the capital securities; provided that
CNB has the right under the indenture to set off any payment made to that holder
of the capital securities by CNB in connection with any direct action.
The holders of the capital securities will not be able to exercise directly
any remedies, other than those described in the above paragraph, available to
the holders of the junior
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subordinated debentures, unless an event of default exists under the trust
agreement. For additional information, please refer to "Description of Exchange
Securities--Capital Securities--Events of Default; Notice."
Consolidation, Merger, Sale of Assets and Other Transactions
The indenture provides that CNB will not consolidate with or merge into any
other person or convey, transfer or lease all or substantially all of its
properties to any person, and no person shall consolidate with or merge into CNB
or convey, transfer or lease all or substantially all of its properties to CNB,
unless:
- in case CNB consolidates with or merge into another person or conveys
or transfers all or substantially all of its properties to any person,
the successor is organized under the laws of the United States or any
state or the District of Columbia, and the successor expressly assumes
CNB's obligations under the indenture with respect to the junior
subordinated debentures; provided, however, that nothing in the
indenture shall be deemed to restrict or prohibit, and no supplemental
indenture shall be required in the case of the merger of a bank (as
defined below) with and into a bank or CNB, the consolidation of banks
into a bank or CNB, or the sale or other disposition of all or
substantially all of the assets of any bank to another bank or CNB,
if, in any such case in which CNB is not the surviving, resulting or
acquiring entity, CNB would own, directly or indirectly, at least 80%
of the voting securities of the bank (and of any other bank any voting
securities of which are owned, directly or indirectly, by the bank)
surviving this merger, resulting from the consolidation of acquiring
the assets;
- immediately after giving effect to the transaction, no debenture event
of default, and no event which, after notice or lapse of time or both,
would become a debenture event of default, exists; and
- certain other conditions as prescribed in the indenture are met.
For purposes of the first bullet point above, the term "bank" means each of:
- any banking subsidiary of CNB the consolidated assets of which
constitute 20% or more of its consolidated assets and its consolidated
subsidiaries;
- any other banking subsidiary designated as a bank pursuant to a board
resolution and set forth in an officers' certificate delivered to the
trustee; and
- any subsidiary of CNB that owns, directly or indirectly, any voting
securities, or options, warrants or rights to subscribe for or
purchase voting securities, of any bank under the first and second
bullet points above and in the case of all three bullet points above
their respective successors (whether by consolidation, merger,
conversion transfer of substantially all their assets and business or
otherwise) so
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long as this successor is a banking subsidiary (in the case of the
first and second bullet point or a subsidiary (in the case of the
third bullet point) of CNB.
The general provisions of the indenture do not afford holders of the junior
subordinated debentures protection in the event of a highly leveraged or other
transaction that CNB may become involved in that may adversely affect holders of
the junior subordinated debentures.
Satisfaction and Discharge
The indenture provides that when, among other things,
- all junior subordinated debentures not previously delivered to the
Delaware trustee for cancellation have become due and payable or will
become due and payable at maturity or called for prepayment within one
year, and
- CNB deposits or causes to be deposited with the Delaware trustee
funds, in trust, for the purpose and in an amount sufficient to pay
and discharge the entire indebtedness on the junior subordinated
debentures not previously delivered to the Delaware trustee for
cancellation, for the principal (and premium, if any) and interest
(including compounded interest and additional sums, if any) to the
date of the prepayment or to September 30, 2029, as the case may be,
then the indenture will cease to be of further effect (except as to CNB's
obligations to pay all other sums due pursuant to the indenture and to provide
the officers' certificates and opinions of counsel), and CNB will be deemed to
have satisfied and discharged the indenture.
Subordination
CNB has promised that any junior subordinated debentures issued under the
indenture will rank junior to all senior indebtedness to the extent provided in
the indenture. Upon any payment or distribution of CNB's assets to creditors
upon its liquidation, dissolution, winding up, reorganization, assignment for
the benefit of its creditors, marshaling of its assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in connection with any
insolvency or bankruptcy proceeding of CNB, the senior indebtedness must be paid
in full before the holders of the junior subordinated debentures will be
entitled to receive or retain any payment in respect thereof.
If the maturity of junior subordinated debentures is accelerated, the
holders of all senior indebtedness outstanding at such time will first be
entitled to receive payment in full of the senior indebtedness before the
holders of junior subordinated debentures will be entitled to receive or retain
any payment in respect of the principal of (or premium, if any) or interest, if
any, on the junior subordinated debentures.
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the junior subordinated debentures may be made if there is a
default in any payment with respect to senior indebtedness, or an event of
default exists with respect to any senior indebtedness that
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accelerates the maturity of the senior indebtedness, or if any judicial
proceeding shall be pending with respect to the default.
Indebtedness for money borrowed means any obligation of or any obligation
guaranteed by CNB to repay borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments; except that indebtedness for
money borrowed does not include trade accounts payable or accrued liabilities
arising in the ordinary course of business.
Indebtedness ranking on a parity with the junior subordinated debentures
means:
- indebtedness for money borrowed, whether outstanding on the date the
indenture is executed or created, assumed or incurred after the date
that the indenture is executed, to the extent the indebtedness for
money borrowed by its terms ranks equal to and not prior to the junior
subordinated debentures in the right of payment upon the happening of
its dissolution, winding-up, liquidation or reorganization and
- all other debt securities, and guarantees in respect of those debt
securities, issued to any trust other than the Trust, or a trustee of
the trust, partnership or other entity affiliated with CNB, that is
CNB's financing vehicle, in connection with the issuance by the
financing vehicle of equity securities or other securities guaranteed
by CNB pursuant to an instrument that ranks equal to, with or junior
to the guarantee. The securing of any indebtedness otherwise
constituting indebtedness ranking on a parity with the junior
subordinated debentures shall not be deemed to prevent such
indebtedness from constituting indebtedness ranking on a parity with
the junior subordinated debentures.
Indebtedness ranking junior to the junior subordinated debentures means any
indebtedness for money borrowed, whether outstanding on the date the indenture
is executed or created, assumed or incurred after the date the indenture is
executed, to the extent the indebtedness for money borrowed by its terms ranks
junior to and not equal to or prior to the junior subordinated debentures (and
any other indebtedness ranking on a parity with the junior subordinated
debentures) in right of payment upon the happening of CNB's dissolution or
winding-up or liquidation or reorganization. The securing of any indebtedness
for money borrowed otherwise constituting indebtedness ranking junior to the
junior subordinated debentures shall not be deemed to prevent the indebtedness
for money borrowed from constituting indebtedness ranking junior to the junior
subordinated debentures.
Senior indebtedness means all indebtedness for money borrowed, whether
outstanding on the date the indenture is executed or created, assumed or
incurred after the date the indenture is executed, except indebtedness ranking
on a parity with the junior subordinated debentures or indebtedness ranking
junior to the junior subordinated debentures, and any deferrals, renewals or
extensions of the senior indebtedness.
CNB is a bank holding company and almost all of the operating assets of CNB
are owned by the Bank and Central Asset Management, Inc. CNB relies primarily on
dividends from the
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Bank to meet its obligations for payment of principal and interest on its
outstanding debt obligations and corporate expenses. CNB is a legal entity
separate and distinct from the Bank. Holders of junior subordinated debentures
should look only to CNB for payments on the junior subordinated debentures.
There are regulatory limitations on the payment of dividends directly or
indirectly to CNB from its subsidiaries. In addition, the Bank is subject to
certain restrictions imposed by federal law on any extensions of credit to, and
certain other transactions with, CNB and certain other affiliates, and on
investments in stock or other securities thereof. These restrictions prevent CNB
and the other affiliates from borrowing from the Bank unless the loans are
secured by various types of collateral. Further, the secured loans, other
transactions and investments by the Bank are generally limited in amount as to
CNB and as to each of the other affiliates to 10% of the Bank's capital and
surplus and as to CNB and all of the other affiliates to an aggregate of 20% of
the Bank's capital and surplus. Accordingly, the junior subordinated debentures
will be effectively subordinated to all existing and future liabilities of CNB's
subsidiaries.
Because CNB is a bank holding company, the right of CNB to participate in
any distribution of assets of any subsidiary upon the subsidiary's liquidation
or reorganization or otherwise (and thus the ability of holders of the capital
securities to benefit indirectly from the distribution), is subject to the prior
claims of creditors of that subsidiary (including depositors, in the case of the
Bank), except to the extent CNB may itself be recognized as a creditor of that
subsidiary. At June 30, 1999, the Bank had total liabilities (excluding
liabilities owed to CNB) of $683 million. Accordingly, the junior subordinated
debentures will be effectively subordinated to all existing and future
liabilities of CNB's subsidiary (including the Bank's deposit liabilities) and
all liabilities of any future subsidiaries of CNB. The indenture does not limit
the incurrence or issuance of other secured or unsecured debt of CNB or any
subsidiary, including senior indebtedness.
For more information regarding the regulatory limitations applicable to
dividends and other payments by the Bank, you should read "Risk Factors--Risks
related to your investments in the capital securities--CNB will depend primarily
on any dividends CNB may receive from its subsidiaries in making payments under
the junior subordinated debentures, which could affect the payments made to you
under the capital securities."
Restrictions on Transfer
The junior subordinated debentures were issued and may be transferred only
in blocks having an aggregate principal amount of not less than $100,000 (100
junior subordinated debentures) and multiples of $1,000 in excess thereof. Any
attempted transfer of junior subordinated debentures in a block having an
aggregate principal amount of less than $100,000 shall be deemed to be void and
of no legal effect. Any purported transferee shall be deemed not to be the
holder of the junior subordinated debentures for any purpose, including but not
limited to the receipt of payments on the junior subordinated debentures, and
the purported transferee shall be deemed to have no interest in the junior
subordinated debentures.
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Governing Law
The indenture and the junior subordinated debentures are governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of law principles.
Information Concerning the Debenture Trustee
Following the exchange offer and the qualifications of the indenture under
the Trust Indenture Act, the debenture trustee will have and be subject to all
the duties and responsibilities specified with respect to an indenture trustee
under the Trust Indenture Act. Subject to those provisions, the debenture
trustee is not obligated to exercise any of the powers vested in it by the
indenture at the request of any holder of junior subordinated debentures, unless
offered reasonable indemnity by the holder against the costs, expenses and
liabilities which might be incurred thereby. The debenture trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties under the indenture if the debenture
trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
GUARANTEE
The original guarantee was executed and delivered by CNB at the same time
as the Trust's issuance of original capital securities. The Wilmington Trust
Company will act as guarantee trustee under the guarantee to comply with the
Trust Indenture Act. The guarantee trustee holds the guarantee for the benefit
of the holders of the capital securities.
We have summarized the material terms and provisions of the guarantee in
this section. This summary is not complete and is subject to, and qualified by,
the guarantee, including the definitions used in the guarantee. This summary is
also subject to, and qualified by, the Trust Indenture Act. The guarantee will
be subject to the Trust Indenture Act upon consummation of the exchange offer.
We encourage you to read the guarantee for additional information.
General
CNB has irrevocably agreed to pay in full on a subordinated basis, to the
extent set forth herein, the payments with respect to the capital securities to
the extent not paid by the Trust. The payments that will be subject to the
guarantee are:
- any accumulated and unpaid distributions required to be paid on the
capital securities, to the extent that the Trust has funds legally
available at that time;
- the applicable redemption price with respect to the capital securities
called for redemption, to the extent that the Trust has funds legally
available at that time; and
- upon a voluntary or involuntary dissolution, winding-up or liquidation
of the Trust (other than in connection with the distribution of the
junior subordinated debentures to holders of the capital securities or
the redemption of all capital
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securities), the lesser of the liquidation distribution, to the extent
the Trust has funds legally available at that time, and the amount of
assets of the Trust remaining available for distribution to holders of
capital securities after satisfying the liabilities owed to the
Trust's creditors as required by applicable law.
The guarantee ranks subordinate and junior to all senior indebtedness to
the extent provided in the guarantee. Please refer to "--Status of the
Guarantee" for information regarding the subordination of the guarantee. CNB's
obligation to make a guarantee payment may be satisfied by its direct payment of
the required amounts to the holders of the capital securities or by causing the
Trust to pay these amounts to the holders of the capital securities.
The guarantee is an irrevocable guarantee on a subordinated basis of the
Trust's obligations under the capital securities, but will apply only to the
extent that the Trust has funds sufficient to make these payments. If CNB does
not make interest payments on the junior subordinated debentures held by the
Trust, the Trust will not be able to pay you distributions on the capital
securities and will not have funds legally available. Please refer to the
"Description of the Exchange Securities - Relationship Among the Capital
Securities, the Junior Subordinated Debentures and the Guarantee" section of
this prospectus. The guarantee does not limit CNB from incurring or issuing
other secured or unsecured debt, including senior indebtedness, whether under
the indenture, any other indenture that CNB may enter into in the future or
otherwise.
The holders of at least a majority in aggregate liquidation amount of the
capital securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the guarantee trustee in
respect of CNB's guarantee or to direct the exercise of any trust or power
conferred upon the guarantee trustee under CNB's guarantee. Any holder of the
capital securities may institute a legal proceeding directly against CNB to
enforce their rights under the guarantee without first instituting a legal
proceeding against the Trust, the guarantee trustee or any other person or
entity.
If CNB defaults on its obligation to pay amounts payable under the junior
subordinated debentures, the Trust will lack funds for the payment of
distributions or amounts payable on redemption of the capital securities or
otherwise, and the holders of the capital securities will not be able to rely
upon the guarantee for payment of such amounts. Instead, if a debenture event of
default exists that is attributable to CNB's failure to pay principal of (or
premium, if any) or interest on the junior subordinated debentures on a payment
date, then any holder of capital securities may institute a direct action
against CNB pursuant to the terms of the indenture for enforcement of payment to
that holder of the principal of (or premium, if any) or interest on the junior
subordinated debentures having a principal amount equal to the aggregate
liquidation amount of the capital securities of that holder. In connection with
a direct action, CNB will have a right of set-off under the indenture to the
extent that CNB made any payment to the holder of capital securities in the
direct action. Except as described herein, holders of capital securities will
not be able to exercise directly any other remedy available to the holders of
the junior subordinated debentures or assert directly any other rights in
respect of the junior subordinated debentures. The trust agreement provides that
each holder of capital securities and the common
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securities by accepting the capital securities and the common securities agrees
to the provisions of the guarantee and the indenture.
CNB has, through its guarantee, the trust agreement, the junior
subordinated debentures and the indenture, taken together, fully, irrevocably
and unconditionally guaranteed all of the Trust's obligations under the capital
securities. No single document standing alone, or operating in conjunction with
fewer than all of the other documents, constitutes that guarantee. Only the
combined operation of these documents provides a full, irrevocable and
unconditional guarantee of the Trust's obligations under the capital securities.
You should refer to "Description of Exchange Securities--Relationship Among the
Capital Securities, the Junior Subordinated Debentures and the Guarantee" for
more information about CNB's guarantee.
Status of the Guarantee
CNB's guarantee constitutes an unsecured obligation and ranks subordinate
and junior to all senior indebtedness in the same manner as the junior
subordinated debentures. Please refer to "Description of Exchange
Securities--Junior Subordinated Debentures--Subordination." In addition, because
CNB is a holding company, its right to participate in any distribution of the
Bank's assets upon the Bank's liquidation or reorganization or otherwise is
subject to the prior claims of the Bank's creditors (including its depositors),
except to the extent CNB may be recognized as a creditor of the Bank.
Accordingly, CNB's obligations under the guarantee effectively are subordinated
to all existing and future liabilities of its present and future subsidiaries
(including depositors of the Bank). As a result, claimants should look only to
CNB's assets for payments under the guarantee.
CNB's guarantee of the Trust's capital securities does not limit the amount
of secured or unsecured debt, including senior indebtedness, that CNB or any of
its subsidiaries may incur. CNB expects from time to time that CNB will incur
additional indebtedness and that its subsidiaries will also incur additional
liabilities. CNB's guarantee constitutes a guarantee of payment and not of
collection, enabling the guaranteed party to institute a legal proceeding
directly against CNB to enforce their rights under the guarantee without first
instituting a legal proceeding against any other person or entity. CNB's
guarantee is held for the benefit of the holders of the capital securities.
CNB's guarantee will not be discharged, except by payment of the guarantee
payments in full to the extent that the Trust has not paid, or upon distribution
of the junior subordinated debentures to, the holders of the capital securities.
Events of Default
There will be an event of default under the guarantee if CNB fails to
perform any of its payment or other obligations under the guarantee; provided,
however, that except with respect to a default in payment of any guarantee
payment, CNB shall have received notice of default and shall not have cured the
default within 60 days after receipt of the notice. The holders of at least a
majority in liquidation amount of the capital securities will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the guarantee trustee in respect of CNB's guarantee or to direct
the exercise of any trust or power conferred upon the guarantee trustee under
CNB's guarantee.
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Any holder of the capital securities may institute a legal proceeding
directly against CNB to enforce the rights of the holders of the capital
securities under the guarantee without first instituting a legal proceeding
against the Trust, the guarantee trustee or any other person or entity.
CNB, as guarantor, will be required to file annually with the guarantee
trustee a certificate regarding its compliance with the applicable conditions
and covenants under its guarantee.
Amendments and Assignment
Except with respect to any changes that do not materially adversely affect
the rights of holders of the capital securities (in which case no vote will be
required), the guarantee may not be amended without the prior approval of the
holders of a majority of the liquidation amount of such outstanding capital
securities. You should read "Description of Exchange Securities--Capital
Securities--Voting Rights; Amendment of the Trust Agreement" for more
information about the manner of obtaining the holders' approval. All guarantees
and agreements contained in the guarantee agreement shall bind CNB's successors,
assigns, receivers, issuer trustees and representatives and shall inure to the
benefit of the holders of the capital securities then outstanding.
Termination of the Guarantee
CNB's guarantee will terminate and be of no further force and effect upon:
- full payment of the redemption price of the capital securities;
- dissolution, winding up or liquidation of the Trust, immediately
following the full payment of the amounts payable in accordance with
the trust agreement; or
- distribution of junior subordinated debentures to the holders of the
capital securities.
CNB's guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the capital securities must restore
payment of any sums paid under the capital securities or the guarantee.
Information Concerning the Guarantee Trustee
The Delaware trustee will act as the guarantee trustee and, except if CNB
defaults under the guarantee, will undertake to perform only such duties as are
specifically set forth in the guarantee. In case a default with respect to the
guarantee has occurred, the guarantee 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 will not be obligated
to exercise any of the powers vested in it by the guarantee at the request of
any holder
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of the capital securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that it might incur.
Governing Law
The guarantee is governed by and construed in accordance with the laws of
the State of New York, without regard to conflict of law principles.
RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE JUNIOR SUBORDINATED DEBENTURES
AND THE GUARANTEE
Full and Unconditional Guarantee to the extent that the Trust has Funds Legally
Available to Pay Distributions
CNB has irrevocably guaranteed payments of distributions and other amounts
due on the capital securities to the extent the Trust has funds legally
available to pay distributions as and to the extent set forth under "Description
of Exchange Securities--Guarantee." Taken together, CNB's obligations under the
junior subordinated debentures, the indenture, the trust agreement and the
guarantee provide, a full, irrevocable and unconditional guarantee of the
Trust's payments of distributions and other amounts due on the capital
securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes this guarantee. Only the
combined operation of these documents effectively provides a full, irrevocable
and unconditional guarantee of the Trust's obligations under the capital
securities.
If and to the extent that CNB does not make the required payments on the
junior subordinated debentures, the Trust will not have sufficient funds to make
its related payments, including distributions on the capital securities. CNB's
guarantee does not cover any payments when the Trust does not have sufficient
funds legally available to make those payments. Your remedy, as a holder of
capital securities, is to institute a direct action. CNB's obligations under the
guarantee are subordinate and junior to all senior indebtedness.
Sufficiency of Payments
As long as CNB pays the interest and other payments when due on the junior
subordinated debentures, the Trust will have sufficient funds to cover
distributions and other payments due on the capital securities, primarily
because:
- the aggregate principal amount or prepayment price of the junior
subordinated debentures will equal the sum of the liquidation amount
or redemption price, as applicable, of the capital securities and the
common securities;
- the interest rate and interest payment dates and other payment dates
on the junior subordinated debentures will match the distribution rate
and distribution payment dates and other payment dates for the capital
securities and the common securities;
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- as sponsor, CNB will pay for all and any costs, expenses and
liabilities of the Trust, except for the Trust's obligations to
holders of capital securities and the common securities; and
- the trust agreement also provides that the Trust is not authorized to
engage in any activity that is not consistent with its limited
purposes.
Enforcement Rights of Holders of Capital Securities
You, as holder of capital securities, may institute a legal proceeding
directly against CNB to enforce your rights under CNB's guarantee without first
instituting a legal proceeding against the guarantee trustee, the Trust or any
other person or entity.
A default or event of default under any senior indebtedness would not
constitute a default or event of default under the trust agreement. However, if
there are payment defaults under, or accelerations of, senior indebtedness, the
subordination provisions of the indenture provide that CNB cannot make payments
in respect of the junior subordinated debentures until CNB has paid the senior
indebtedness in full or CNB has cured any payment default or a payment default
has been waived. CNB's failure to make required payments on junior subordinated
debentures would constitute an event of default under the trust agreement.
Limited Purpose of the Trust
The capital securities represent preferred beneficial interests in the
Trust, and the Trust exists solely to:
- issue and sell the capital securities and the common securities;
- use the proceeds from the sale of the capital securities and common
securities to purchase CNB's junior subordinated debentures;
- fulfill its obligations under the registration rights agreement and
issue the exchange securities;
- maintain its status as a grantor trust for federal income tax
purposes; and
- engage in other activities that are necessary or incidental to these
purposes.
A principal difference between the rights of a holder of a capital security and
a holder of a junior subordinated debenture is that a holder of a junior
subordinated debenture will be entitled to receive from CNB the principal amount
of (and premium, if any) and interest on junior subordinated debentures held,
while a holder of capital securities is entitled to receive distributions from
the Trust (or, in certain circumstances, from CNB under its guarantee) if and to
the extent the Trust has funds legally available to pay the distributions.
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Rights Upon Dissolution
Unless the junior subordinated debentures are distributed to holders of the
capital securities and the common securities, if the Trust is voluntarily or
involuntarily dissolved, wound-up or liquidated, after satisfying the
liabilities owed to the Trust's creditors as required by applicable law, the
holders of the capital securities and the common securities will be entitled to
receive, out of assets held by the Trust, the liquidation distribution in cash.
You should review the information in "Description of Exchange
Securities--Capital Securities--Liquidation of the Trust and Distribution of
Exchange Securities--Junior Subordinated Debentures" for additional information.
If CNB is voluntarily or involuntarily liquidated or bankrupted, the
property trustee, as holder of the junior subordinated debentures, would be one
of its subordinated creditors, the property trustee would be subordinated in
right of payment to all senior indebtedness, but entitled to receive payment in
full of principal (and premium, if any) and interest, before any of its
stockholders receive payments or distributions. Since CNB is the guarantor under
the guarantee and has agreed to pay all costs, expenses and liabilities of the
Trust (other than the Trust's obligations to the holders of its capital
securities and the common securities), the positions of a holder of capital
securities and a holder of junior subordinated debentures relative to other
creditors and to CNB's stockholders in the event of its liquidation or
bankruptcy are expected to be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The capital securities and payments on the capital securities generally are
subject to taxation. Therefore, you should consider the tax consequences of
owning and receiving payments on the capital securities before acquiring them.
We have engaged Arnold & Porter as special tax counsel to review the
following discussion. They have given us their written legal opinion that the
discussion correctly describes the principal aspects of the United States
federal tax treatment of beneficial owners of capital securities.
The following discussion is general and may not apply to your particular
circumstances for any of the following (or other) reasons:
- This summary is based on federal tax laws in effect as of the date of
this prospectus. Changes to any of these laws after this date may
affect the tax consequences described below.
- This summary discusses only capital securities you acquire at original
issuance at the original offering price and hold as capital assets
(within the meaning of federal tax law). It does not discuss all of
the tax consequences that may be relevant to Owners who are subject to
special rules, such as banks, thrift
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institutions, real estate investment trusts, regulated investment
companies, insurance companies, brokers and dealers in securities or
currencies, certain securities traders, tax-exempt organizations and
certain other financial institutions. This discussion also does not
discuss tax consequences that may be relevant to you in light of the
your particular circumstances, such as your holding a capital security
as a position in a straddle, hedging, conversion or other integrated
investment.
This summary does not address:
- the income tax consequences to stockholders in, or partners or
beneficiaries of, a holder of capital securities;
- the United States alternative minimum tax consequences of purchasing,
owning and disposing of capital securities; or
- any state, local or foreign tax consequences of purchasing, owning and
disposing of capital securities.
The authorities on which this summary is based are subject to various
interpretations, and the opinions of our tax counsel are not binding on the
Internal Revenue Service, or IRS, or the courts, either of which could take a
contrary position. Moreover, no rulings have been or will be sought from the IRS
with respect to the transaction described herein. Accordingly, we cannot assure
you that the IRS will not challenge the opinion expressed herein or that a court
would not sustain such a challenge.
WE ADVISE YOU TO CONSULT YOUR OWN TAX ADVISORS REGARDING THE TAX
CONSEQUENCES OF PARTICIPATING IN THE EXCHANGE OFFER AND OF OWNING AND DISPOSING
OF THE CAPITAL SECURITIES BECAUSE THE FOLLOWING DISCUSSION MAY NOT APPLY TO YOU.
EXCHANGE OF CAPITAL SECURITIES
The exchange of original capital securities for exchange capital securities
should not be a taxable event to holders for United States federal income tax
purposes. The exchange of original capital securities for exchange capital
securities pursuant to the exchange offer should not be treated as an "exchange"
for United States federal income tax purposes because the exchange capital
securities should not be considered to differ materially in kind or extent from
the original capital securities and because the exchange will occur by operation
of the terms of the original capital securities. If, however, the exchange of
the original capital securities for the exchange capital securities were treated
as an exchange for United States federal income tax purposes, such exchange
should constitute a recapitalization for federal income tax purposes.
Accordingly, the exchange capital securities should have the same issue price as
the original capital securities, and a holder should have the same adjusted tax
basis and holding period in the exchange capital securities as the holder had in
the original capital securities immediately before the exchange.
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U.S. HOLDERS
For purposes of the following discussion, a "U.S. Holder" means:
- a citizen or individual resident of the United States;
- a corporation or partnership created or organized in or under the laws
of the United States or any political subdivision thereof;
- an estate the income of which is includible in its gross income for
U.S. federal income tax purposes without regard to its source; or
- a trust if a court within the United States is able to exercise
primary supervision over its administration and at least one United
States person has the authority to control all substantial decisions
of the trust.
CHARACTERIZATION OF THE TRUST
Before the capital securities were issued, our tax counsel gave an opinion
that:
- under then current law and based on the representations, facts and
assumptions set forth in this prospectus,
- assuming full compliance with the terms of the trust agreement (and
other relevant documents), and
- based on certain assumption and qualifications referred to in the
opinion,
the Trust will be characterized for United States federal income tax purposes as
a grantor trust. Accordingly, for United States federal income tax purposes,
you, as a U.S. Holder, will be considered the owner of an undivided interest in
the junior subordinated debentures owned by the Trust, and you will be required
to include all income or gain recognized for United States federal income tax
purposes with respect to your share of the junior subordinated debentures on
your income tax return.
CHARACTERIZATION OF THE JUNIOR SUBORDINATED DEBENTURES
We have taken the position that, under current law, the junior subordinated
debentures are its debt for United States federal income tax purposes. Arnold &
Porter rendered its opinion that, under then current law, based on the
representations, facts and assumptions set forth in this prospectus and certain
assumptions and qualifications referenced in the opinion, and assuming full
compliance with the terms of the indenture (and other relevant documents), the
junior subordinated debentures will be characterized for United States federal
income tax purposes as indebtedness. CNB, along with the Trust and you (by
acceptance of a beneficial interest in a capital security) agree to treat the
junior subordinated debentures as its debt and the capital securities as
evidence of a beneficial ownership interest in the Trust. We cannot assure you,
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however, that the opinion will not be challenged by the IRS or, if challenged,
that a challenge will not be successful. The remainder of this discussion
assumes that the junior subordinated debentures will be classified as its debt
for United States federal income tax purposes.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under the terms of the junior subordinated debentures, CNB has the ability
to defer payments of interest from time to time by extending the interest
payment period for a period not exceeding 20 consecutive quarterly periods, but
not beyond the maturity of the junior subordinated debentures. Treasury
regulations provide that debt instruments like the junior subordinated
debentures will not be considered issued with original issue discount, or OID,
even if their issuer can defer payments of interest if the likelihood of any
deferral is "remote."
We have concluded, and this discussion assumes, that, as of the date the
junior subordinated debentures were issued and as of the date of this
prospectus, the likelihood of CNB deferring payments of interest was and is
"remote" within the meaning of the applicable Treasury regulations. This
conclusion is based in part on the fact that exercising that option would
prevent CNB from declaring dividends on its common stock and would prevent CNB
from making any payments with respect to debt securities that rank equally with
or subordinate to the junior subordinated debentures. Therefore, the junior
subordinated debentures should not be treated as issued with OID by reason of
CNB's deferral option. Rather, you will be taxed on stated interest on the
junior subordinated debentures when it is paid or accrued in accordance with
your method of accounting for income tax purposes. You should note, however,
that no published rulings or any other published authorities of the IRS have
addressed this issue. Accordingly, it is possible that the IRS could take a
position contrary to the interpretation described herein.
If CNB exercises its option to defer payments of interest, the junior
subordinated debentures would be treated as redeemed and reissued for OID
purposes. The sum of the remaining interest payments (and any de minimis OID) on
the junior subordinated debentures would thereafter be treated as OID. The OID
would accrue, and be includible in your taxable income (regardless of your
method of accounting for income tax purposes) over the remaining term of the
junior subordinated debentures (including any period of interest deferral),
without regard to the timing of payments under the junior subordinated
debentures. The accrual of OID on the junior subordinated debentures would be
determined by treating the reissued junior subordinated debentures as if they
had a fixed interest rate equal to their variable rate on the date they are
reissued and an issue price equal to their adjusted issue price on that date.
The amount of OID in each period would first be calculated on an economic
accrual basis based on the fixed interest rate. The OID accrual would be
adjusted (up or down) based on the actual accrual of interest on the junior
subordinated debentures during each period. Subsequent distributions of interest
on the junior subordinated debentures generally would not be taxable. The amount
of OID that would accrue in any period would generally equal the amount of
interest that accrued on the junior subordinated debentures in that period at
the stated interest rate. Consequently, during any period of interest deferral,
you will include OID in gross income in advance of the receipt of cash, and if
you dispose of a capital security prior to the record date for payment of
distributions on the junior subordinated debentures following that period, you
will be subject to
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income tax on OID accrued through the date of disposition (and not previously
included in income), but you will not receive cash from the Trust with respect
to the OID.
If the possibility of CNB's exercising its option to defer payments of
interest is not remote, the junior subordinated debentures would be treated as
initially issued with OID in an amount equal to the aggregate stated interest
(plus any de minimis OID) over the term of the junior subordinated debentures.
You would include that OID in your taxable income, over the term of the junior
subordinated debentures, as described above.
CHARACTERIZATION OF INCOME
Because the income underlying the capital securities will not be
characterized as dividends for income tax purposes, if you are a corporate
holder of the capital securities you will not be entitled to a dividends
received deduction for any income you recognize with respect to the capital
securities.
MARKET DISCOUNT AND BOND PREMIUM
Under certain circumstances, you may be considered to have acquired your
undivided interests in the junior subordinated debentures with market discount
or acquisition premium (as each phrase is defined for United States federal
income tax purposes).
RECEIPT OF JUNIOR SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF THE TRUST
Under certain circumstances described above in "Description of Exchange
Securities--Capital Securities--Liquidation of Trust and Distribution of Junior
Subordinated Debentures," the Trust may distribute the junior subordinated
debentures to you in exchange for your capital securities and in liquidation of
the Trust. Except as discussed below, such a distribution would not be a taxable
event for United States federal income tax purposes, and you would have an
aggregate adjusted basis in the junior subordinated debentures you receive for
United States federal income tax purposes equal to your aggregate adjusted basis
in your capital securities. For United States federal income tax purposes, your
holding period in the junior subordinated debentures you receive in such a
liquidation of the Trust would include the period during which you held the
capital securities. If, however, the distribution is made at a time when Trust
is treated as an association taxable as a corporation, the distribution would
likely constitute a taxable event to you for United States federal income tax
purposes.
Under certain circumstances described herein in "Description of Exchange
Securities--Junior Subordinated Debentures - Special Event Prepayment", CNB may
redeem junior subordinated debentures for cash and distribute the proceeds of
the redemption to you in redemption of your capital securities. The redemption
would be taxable for United States federal income tax purposes, and you would
recognize gain or loss as if you had sold the capital securities for cash.
Please refer to "Sales of Capital Securities" below.
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SALES OF CAPITAL SECURITIES
If you sell capital securities, you will recognize gain or loss equal to
the difference between your adjusted basis in the capital securities and the
amount realized on the sale of such capital securities. Your adjusted basis in
the capital securities generally will be the initial purchase price, increased
by OID previously included (or currently includible) in your gross income to the
date of disposition, and decreased by payments received on the capital
securities (other than any interest received with respect to the period prior to
the effective date CNB first exercise its option to defer payments of interest).
Any gain or loss generally will be capital gain or loss, and generally will be a
long-term capital gain or loss if you have held the capital securities for more
than one year prior to the date of disposition.
If you dispose of your capital securities between record dates for payments
of distributions thereon, you will be required to include accrued but unpaid
interest (or OID) on the junior subordinated debentures through the date of
disposition in your taxable income for United States federal income tax purposes
(notwithstanding that you may receive a separate payment from the purchaser with
respect to accrued interest). You may deduct that amount from the sales proceeds
received (including the separate payment, if any, with respect to accrued
interest) for the capital securities (or as to OID only, to add such amount to
your adjusted tax basis in the capital securities). To the extent the selling
price is less than your adjusted tax basis (which will include accrued but
unpaid OID if any), you will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
NON U.S. HOLDERS
The following discussion applies to you if you are not a U.S. Holder as
described above.
Payments to you, as a non-U.S. Holder, on a capital security generally will
not be subject to withholding of income tax, provided that:
- you did not (directly or indirectly, actually or constructively) own
10% or more of the total combined voting power of all classes of its
stock entitled to vote;
- you are not a controlled foreign corporation that is related to CNB
through stock ownership; and
- either you certify to the Trust or its agent under penalties of
perjury, that you are not a U.S. Holder and provide your name and
address, or a securities clearing organization, bank or other
financial institution that holds customers' securities in the ordinary
course of its trade or business, and holds the capital security in
such capacity, certifies to the Trust or its agent, under penalties of
perjury, that it requires and has received such a statement from you
or another financial institution between it and you in the chain of
ownership, and furnishes the Trust or its agent with a copy of the
statement.
85
<PAGE> 87
It is possible that changes in the law affecting the income tax
consequences of the junior subordinated debentures could adversely affect CNB's
ability to deduct interest payable on the junior subordinated debentures. Those
changes could also cause the junior subordinated debentures to be classified as
CNB's equity (rather than its debt) for United States federal income tax
purposes. This might cause the income derived from the junior subordinated
debentures to be characterized as dividends, generally subject to a 30% income
tax (on a withholding basis) when paid to you if you are not a U.S. Holder,
rather than as interest which, as discussed above generally is exempt from
income tax in the hands of a person who is not a U.S. Holder.
You, as a non-U.S. Holder, will generally not be subject to withholding of
income tax on any gain realized upon the sale or other disposition of a capital
security.
If you hold the capital securities in connection with the active conduct of
a United States trade or business, you will be subject to income tax on all
income and gains recognized with respect to your proportionate share of the
junior subordinated debentures.
INFORMATION REPORTING
In general, information reporting requirements will apply to payments made
on, and proceeds from the sale of, the capital securities held by a noncorporate
U.S. Holder within the United States. In addition, payments made on, and
payments of the proceeds from the sale of, the capital securities to or through
the United States office of a broker are subject to information reporting unless
you certify as to your non-U.S. Holder status or otherwise establish an
exemption from information reporting and backup withholding. Please refer to
"Backup Withholding." Taxable income on the capital securities for a calendar
year should be reported to U.S. Holders on the appropriate forms by the
following January 31st.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the capital securities may
be subject to a "backup" withholding tax of 31% unless you comply with certain
identification or exemption requirements. Any amounts so withheld will be
allowed as a credit against your income tax liability, or refunded, provided the
required information is provided to the IRS.
THE PRECEDING DISCUSSION IS ONLY A SUMMARY AND DOES NOT ADDRESS THE
CONSEQUENCES TO PARTICULAR PERSON OF PARTICIPATING IN THE EXCHANGE OFFER AND OF
THE OWNERSHIP AND DISPOSITION OF THE CAPITAL SECURITIES. POTENTIAL PURCHASERS OF
THE CAPITAL SECURITIES ARE URGED TO CONTACT THEIR OWN TAX ADVISORS TO DETERMINE
THEIR PARTICULAR TAX CONSEQUENCES.
CERTAIN ERISA CONSIDERATIONS
The Employee Retirement Income Security Act of 1974, as amended ("ERISA")
is a comprehensive federal law that applies to privately sponsored employee
benefit plans. Among ERISA's purposes is to protect the interests of
participants in employee benefit plans subject to ERISA ("Plans") by mandating
standards of conduct, obligations and responsibilities for the
86
<PAGE> 88
people who serve as the fiduciaries of such Plans. In general, under ERISA, a
person will be considered to be a fiduciary with respect to a Plan to the extent
that he or she exercises discretionary authority over the management or the
investment of the Plan's assets. Before investing the assets of an employee
benefit plan in capital securities, a fiduciary should consider, among other
things, whether the investment satisfies the prudence and diversification
requirements of ERISA, whether the investment, itself, is permitted under the
Plan's governing documents and ERISA's "prohibited transaction" rules.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well
as individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties-in-interest" under ERISA or "disqualified
persons" under the Code with respect to the Plan ("Parties-in-Interest").
Violation of the "prohibited transaction" rules may result in the imposition of
an excise tax or other liabilities on "Parties-in-Interest" unless exemptive
relief is available under a statutory or administrative exemption. Employee
benefit plans that are governmental plans (as defined in Section 3(32) of
ERISA), certain church plans (as defined in Section 3(33) of ERISA) and foreign
plans (as described in Section 4(b)(4) of ERISA) are not subject to the
requirements of ERISA or Section 4975 of the Code; however, governmental plans
may be subject to similar provisions under applicable state laws.
The U.S. Department of Labor has issued regulations governing what
constitutes "plan assets" under ERISA (the "Plan Asset Regulations"). The Plan
Asset Regulations provide that, as a general rule, the underlying assets and
properties of corporations, partnerships, trusts and certain other entities in
which a Plan makes an equity investment will be deemed, for purposes of ERISA,
to be assets of the investing Plan, unless certain exceptions apply. As a
result, under these Regulations, the assets of the Trust will be deemed to be
the assets of the investing Plans for purposes of ERISA and Section 4975 of the
Code if the capital securities constitute an equity interest in the Trust under
the Plan Asset Regulations and no exception under the Plan Asset Regulations
applies. An "equity interest" is defined in the Plan Asset Regulations to
specifically include a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Asset Regulations, the
assets of the Trust will not be deemed to be "plan assets" of investing Plans
if, immediately after the most recent acquisition of an equity interest in the
Trust, less than 25% of the value of each class of equity interests in the Trust
is held by Plans, certain other employee benefit plans and entities holding
assets deemed to be "plan assets" ("Benefit Plan Investors"). No assurance can
be given that the value of the exchange capital securities held by Benefit Plan
Investors will be less than 25% of the total value of such securities at the
completion of the exchange offer or thereafter, and no monitoring or other
measures will be taken with respect to the satisfaction of the conditions of
this exception. Thus, the conditions of the exception may not be satisfied. All
of the common securities are held by CNB.
Under another exception contained in the Plan Asset Regulations, if the
exchange capital securities were to qualify as "publicly offered securities,"
the assets of the Trust would not be deemed to be "plan assets." The exchange
capital securities would qualify as "publicly offered securities" if, among
other things, they are offered pursuant to an effective registration statement,
87
<PAGE> 89
are owned by 100 or more investors independent of the issuer and each other at
the time of the offering, and are subsequently registered under the Exchange
Act. It is expected that the 100 investor requirement will not be satisfied and
that the exchange capital securities will not be registered under the Exchange
Act.
There can be no assurance that any of the exceptions set forth in the Plan
Assets Regulation will apply to the exchange capital securities and, as a
result, an investing Plan's assets could be considered to include an undivided
interest in the junior subordinated debentures held by the Trust. In the event
that assets of the Trust are considered to be assets of an investing Plan, the
property trustee, the Delaware trustee, CNB and/or other persons, in providing
services with respect to the junior subordinated debentures, could be considered
fiduciaries to such Plan and subject to the fiduciary responsibility provisions
of Title I of ERISA. In addition, certain transactions involving the Trust
and/or the capital securities could be deemed to constitute direct or indirect
prohibited transactions under ERISA and Section 4975 of the Code with respect to
a Plan. For example, if CNB is a Party-in-Interest with respect to an investing
Plan (either directly or by reason of its ownership of the Bank), extensions of
credit between CNB and the Trust (as represented by the junior subordinated
debentures and the guarantee) would likely be prohibited by Section 406(a)(1)(B)
of ERISA and Section 4975(c)(1)(B) of the Code.
The DOL has issued five separate prohibited transaction class exemptions
("PTCEs") that may provide exemptive relief to an employee benefit plan for
direct or indirect prohibited transactions that may arise from the purchase or
holding of the capital securities. The available PTCEs include:
- PTCE 96-23 which may be applicable for certain transactions involving
in-house asset managers;
- PTCE 95-60 which may be applicable for certain transactions involving
insurance company general accounts;
- PTCE 91-38 which may be applicable for certain transactions involving
bank collective investment funds;
- PTCE 90-1 which may be applicable for certain transactions involving
insurance company separate accounts; and
- PTCE 84-14 which may be applicable for certain transactions involving
independent qualified asset managers.
Because of ERISA's and the Code's prohibited transaction rules, the capital
securities may not be purchased or held by any Plan, any entity whose underlying
assets include "plan assets" by reason of any Plan's investment in the entity (a
"Plan Asset Entity") or any person investing the "plan assets" of any Plan,
unless such purchase or holding is covered by relief provided under one of the
PTCEs identified above or another applicable exemption. A purchaser or holder of
the capital securities or any interest therein that is a Plan or a Plan Asset
Entity or that is purchasing such securities on behalf of or with "plan assets"
of any Plan will be deemed
88
<PAGE> 90
to have represented by its purchase and holding thereof that: (a) the purchase
and holding of the capital securities is covered by the exemptive relief
provided by PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or another applicable
exemption; (b) CNB and the administrators are not "fiduciaries" within the
meaning of Section 3(21) of ERISA and the regulations thereunder, with respect
to such person's interest in the capital securities or the junior subordinated
debentures; and (c) in purchasing the capital securities such person approves
the purchase of the junior subordinated debentures and the appointment of the
property trustee and the Delaware trustee. If a Plan or Plan Asset Entity
purchases or holds capital securities and elects to rely on an exemption other
than PTCE 96-23, 95-60, 91-38, 90-1 or 84-14, CNB, together with the Trust, may
require an opinion of legal counsel or other satisfactory evidence that such
exemption is available.
The discussion herein of ERISA is general in nature and is not intended to
be all inclusive. Any fiduciary of a Plan, governmental plan or church plan
considering an investment in the capital securities should consult with its
legal advisors regarding the consequences of such an investment.
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange capital securities for its own
account in connection with the exchange offer must acknowledge that it will
deliver a prospectus in connection with any resale of such exchange capital
securities. This prospectus, as it may be amended or supplemented from time to
time, may be used by participating broker-dealers during the period referred to
below in connection with resales of exchange capital securities received in
exchange for original capital securities if such original capital securities
were acquired by such participating broker-dealers for their own accounts as a
result of market-making activities or other trading activities. CNB and the
Trust have agreed that this prospectus, as it may be amended or supplemented
from time to time, may be used by a participating broker-dealer in connection
with resales of such exchange capital securities for a period ending 90 days
after the expiration date (subject to extension under certain limited
circumstances described herein) or, if earlier, when all such exchange capital
securities have been disposed of by such participating broker-dealer. However, a
participating broker-dealer who intends to use this prospectus in connection
with the resale of exchange capital securities received in exchange for original
capital securities pursuant to the exchange offer must notify CNB or the Trust,
or cause CNB or the Trust to be notified, on or prior to the expiration date,
that it is a participating broker-dealer. Such notice may be given in the space
provided for that purpose in the letter of transmittal or may be delivered to
the exchange agent at one of the addresses set forth herein under "The Exchange
Offer--Exchange Agent." Please refer to "The Exchange Offer--Resales of Exchange
Capital Securities" for additional information.
CNB or the Trust will not receive any cash proceeds from the issuance of
the exchange capital securities offered hereby, exchange capital securities
received by broker-dealers for their own accounts in connection with the
exchange offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the exchange capital securities or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. Any such resale may be
made directly to purchasers or to or through
89
<PAGE> 91
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
exchange capital securities.
Any broker-dealer that resells exchange capital securities that were
received by it for its own account in connection with the exchange offer and any
broker or dealer that participates in a distribution of such exchange capital
securities may be deemed to be an "underwriter" within the meaning of the
Securities Act, and any profit on any such resale of exchange capital securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The letter of transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
VALIDITY OF EXCHANGE SECURITIES
Certain matters of Delaware law relating to the validity of the exchange
capital securities and the creation of the Trust will be passed upon on behalf
of the Trust by Richards, Layton & Finger, special Delaware counsel to the Trust
and CNB. The validity of the exchange guarantee and the exchange junior
subordinated debentures will be passed upon for CNB by Arnold & Porter. Certain
matters relating to United States federal income tax considerations will be
passed upon for CNB by Arnold & Porter. Arnold & Porter will rely as to certain
matters of Delaware law on the opinion of Richards, Layton & Finger.
INDEPENDENT AUDITORS
The consolidated financial statements of CNB and subsidiaries as of
December 31, 1998 and 1997, and for the years ended December 31, 1998 and 1997,
included in CNB's Annual Report on Form 10-K for the year ended December 31,
1998, and incorporated by reference in this prospectus, have been audited by
KPMG LLP, independent certified public accountants. Such consolidated financial
statements have been included in reliance upon the report of KPMG LLP.
The consolidated statements of income, changes in stockholders' equity, and
cash flows of CNB and subsidiaries for the year ended December 31, 1996,
included in CNB's Annual Report on Form 10-K for the year ended December 31,
1998, have been audited by PricewaterhouseCoopers, LLP independent certified
public accountants, to the extent and for the periods indicated in their report
thereon. Such consolidated financial statements have been included in reliance
upon the report of PricewaterhouseCoopers, LLP.
90
<PAGE> 92
================================================================================
You should rely only on the information contained in this prospectus or that we
have referred you to. We have not authorized anyone to provide you with
information that is different. The information in this prospectus may to be
accurate beyond the date indicated below, regardless of when this prospectus is
delivered or when the securities described in this prospectus are sold. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information................ 2
Additional Information We Have Incorporated in the
Prospectus......................................... 3
Forward-looking Statements Relating to Our Future
Performance and Expectations
and that of the Capital Securities............. 3
Summary Information................................ 5
Summary Selected Consolidated Financial Data....... 13
Risk Factors....................................... 14
Accounting Treatment............................... 25
CNBF Capital Trust I............................... 25
The Exchange Offer................................. 27
Description of the Exchange Securities............. 40
Certain Federal Income Tax Considerations.......... 80
Certain ERISA Considerations....................... 86
Plan of Distribution............................... 89
Validity of Exchange Securities.................... 90
Independent Auditors............................... 90
</TABLE>
================================================================================
================================================================================
$18,000,000
CNBF CAPITAL TRUST I
Series B Floating Rate Capital Securities
for any and all of its outstanding
Series A Floating Rate Capital Securities
fully and unconditionally
guaranteed, as described herein, by
CNB FINANCIAL CORP.
------------------------
PROSPECTUS
------------------------
, 1999
================================================================================
<PAGE> 93
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Under Sections 721 through 725 of the Business Corporation Law of the State
of New York (the "BCL"), CNB has broad powers to indemnify its directors,
officers and other employees. Section 726 of the BCL permits the purchase of
insurance to indemnify a corporation or its officers and directors to the extent
permitted. As permitted by Section 721 of the BCL, CNB's By-laws provide that
CNB shall indemnify its officers and directors, as such, against all judgments,
fines, amounts paid in settlement and reasonable expenses, including attorney's
fees actually and necessarily incurred in connection with the defense or appeal
of any such action or proceeding, and against any other amounts, expenses and
fees similarly incurred. This right of indemnification includes the right of a
director or officer to receive payment from CNB for expenses incurred in
defending or appealing such action or proceeding in advance of its final
disposition upon receipt of an undertaking by or on behalf of such officer or
director to repay such amount if and to the extent that it is ultimately
determined that such officer or director is not entitled to indemnification.
Notwithstanding the preceding, the By-laws provide that CNB will indemnify a
director or officer only upon a finding by the Board of Directors (or the
shareholders, as appropriate) that there has been no judgment or other final
adjudication adverse to the director or officer which establishes that his acts
were committed in bad faith or were the result of active or deliberate
dishonesty and were material to the cause of action so adjudicated, or that he
personally gained in fact a financial profit or the advantage to which he was
not legally entitled. CNB has also entered into indemnity agreements with its
officers and directors. CNB also has purchased directors' and officers'
liability insurance.
Under the trust agreement, CNB has agreed to indemnify each of the trustees
of the Trust, and to hold each trustee harmless against any expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
trustee in connection with any action arising by reason of the fact that it is
or was a trustee if the trustee acted in good faith. This indemnification of the
trustees generally includes each trustee's costs and expenses of defending
itself against any action in connection with the exercise or performance of any
of its powers or duties under the trust agreement.
Item 21. Exhibits.
The exhibits listed on the Exhibit Index beginning on page II-7 of this
Registration Statement are filed herewith or are incorporated herein by
reference to other filings.
II-1
<PAGE> 94
Item 22. Undertakings
A. Each of the undersigned Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than 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 (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrants 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 that
remain unsold at the termination of the offering.
B. Each of the undersigned Registrants hereby undertakes that, for the
purposes of determining any liability under the Securities Act of
1933, each filing of a
II-2
<PAGE> 95
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the undersigned Registrants pursuant to the
provisions described in Item 20, 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 the undersigned Registrants of expenses incurred or paid
by a director, officer or controlling person of the Registrants in
the successful defense of any action, suit or proceeding) is asserted
by such director, the Registrants will, unless in the opinion of
their counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether
such indemnification by the Registrants is against public policy as
expressed in the Act and will be governed by the final adjudication
of such issue.
D. Each of the undersigned Registrants hereby undertakes to respond to
requests for information that is incorporated by reference into the
prospectus pursuant to Items 4, 10(b), 11, or 13 of this form, within
one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement
through the date of responding to the request.
E. Each of the undersigned Registrants hereby undertakes to supply by
means of a post-effective amendment all information concerning a
transaction, and the company being acquired involved therein, that
was not the subject of and included in the Registration Statement
when it became effective.
II-3
<PAGE> 96
SIGNATURES
Pursuant to the requirements of the Securities Act, CNB Financial Corp. has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Canajoharie, New York on October 28,
1999.
CNB Financial Corp.
By: /s/ Donald L. Brass
--------------------------------
Donald L. Brass, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated. Each of the directors and/or officers of CNB Financial
Corp. whose signature appears below hereby appoints each of Donald L. Brass and
Peter J. Corso, as his or her attorney-in-fact to sign in his or her name and
behalf, in any and all capacities stated below and to file with the Securities
and Exchange Commission any and all amendments, including post-effective
amendments, to this Registration Statement on Form S-4, making such changes in
the Registration Statement as appropriate, and generally to do all such things
on their behalf in their capacities as directors and/or officers to enable CNB
Financial Corp. to comply with the provisions of the Securities Act, and all
requirements of the Securities and Exchange Commission.
October 28, 1999 /s/ Donald L. Brass
---------------------------------
Donald L. Brass
President, Chief Executive Officer and
Director
(Principal Executive Officer)
October 28, 1999 /s/ Peter J. Corso
---------------------------------
Peter J. Corso, Chief Financial Officer
(Principal Accounting and Financial
Officer)
October 28, 1999 /s/ VanNess D. Robinson
---------------------------------
VanNess D. Robinson
Director
October 28, 1999 /s/ J. Carl Barbic
---------------------------------
J. Carl Barbic
Director
II-4
<PAGE> 97
October 28, 1999 /s/ David J. Nolan
---------------------------------
David J. Nolan
Director
October 28, 1999 /s/ Joseph A. Santangelo
---------------------------------
Joseph A. Santangelo
Director
October 28, 1999 /s/ John P. Woods, Jr
---------------------------------
John P. Woods, Jr.
Director
II-5
<PAGE> 98
Pursuant to the requirements of the Securities Act, CNBF Capital Trust I
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Canajoharie, New York on the dates
indicated.
October 28, 1999 /s/ Donald L. Brass
---------------------------------
Donald L. Brass
Administrator
October 28, 1999 /s/ Peter J. Corso
---------------------------------
Peter J. Corso
Administrator
October 28, 1999 /s/ Stephen E. Souky
---------------------------------
Stephen E. Souky
Administrator
II-6
<PAGE> 99
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Method of Filing
- ----------- ----------- ----------------
<S> <C> <C>
3.1 Amended and Restated Articles of Incorporated herein by
Incorporation of CNB reference to Exhibit B to the
Registration Statement on
Form S-4 (No. 33-45522) filed
March 4, 1992
3.2 Bylaws of CNB Incorporated herein by
reference to Exhibit C to the
Registration Statement on
Form S-4 (No. 33-45522);
filed March 4, 1992
4.1 Indenture of CNB relating to the Junior Filed herewith
Subordinated Debentures
4.2 Form of Certificate of Exchange Junior Filed herewith
Subordinated Debenture
4.3 Certificate of Trust of CNBF Capital Trust I Filed herewith
4.4 Amended and Restated Trust Agreement of Filed herewith
CNBF Capital Trust I
4.5 Form of Exchange Capital Security Filed herewith
Certificate
4.6 Form of Exchange Guarantee of CNB relating Filed herewith
to the Exchange Capital Securities
4.7 Registration Rights Agreement among CNB, Filed herewith
CNBF Capital Trust I and Ryan, Beck & Co.,
Inc.
5.1 Opinion and consent of Arnold & Porter as Filed herewith
to legality of the Exchange Junior
Subordinated Debentures and the Exchange
Guarantee to be issued by CNB
5.2 Opinion and consent of Richards, Layton & Filed herewith
Finger as to the legality of the Exchange
Capital Securities to be issued by CNBF
Capital Trust I
8 Opinion of Arnold & Porter as to certain Filed herewith
federal income tax matters
23.1 Consent of KPMG LLP Filed herewith
</TABLE>
II-7
<PAGE> 100
<TABLE>
<S> <C> <C>
23.2 Consent of PricewaterhouseCoopers, LLP Filed herewith
23.3 Consent of Arnold & Porter Filed as part of Exhibit 5.1
23.4 Consent of Richards, Layton & Finger Filed as part of Exhibit 5.2
24 Power of Attorney of certain directors of Included on the signature
CNB pages hereto
25.1 Form T-1 Statement of Eligibility of Filed herewith
Wilmington Trust Company to act as trustee
under the Indenture
25.2 Form T-1 Statement of Eligibility of Filed herewith
Wilmington Trust Company to act as trustee
under the Amended and Restated Trust
Agreement of CNBF Capital Trust I
25.3 Form T-1 Statement of Eligibility of Filed herewith
Wilmington Trust Company under the
Exchange Guarantee for the benefit of the
holders of Exchange Capital Securities of
CNBF Capital Trust I
99.1 Form of Letter of Transmittal Filed herewith
99.2 Form of Notice of Guaranteed Delivery Filed herewith
99.3 Form of Exchange Agent Agreement Filed herewith
</TABLE>
II-8
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
CNB FINANCIAL CORP.
-------------------------------
-------------------------------
INDENTURE
Dated as of August 6, 1999
-------------------------------
WILMINGTON TRUST COMPANY,
as Debenture Trustee
-------------------------------
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Execution and Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.3 Form and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.4 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.5 Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.6 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.7 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.8 Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.9 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.10 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.11 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.12 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.13 Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.2 Offices for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.3 Appointments to Fill Vacancies in Debenture Trustee's Office . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.4 Provision as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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SECTION 3.5 Certificate to Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.6 Compliance with Consolidation Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.7 Limitation on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.8 Covenants as to CNBF Capital Trust I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.9 Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.10 Payment Upon Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IV
LIST OF SECURITYHOLDERS AND REPORTS BY
THE CORPORATION AND THE DEBENTURE TRUSTEE
SECTION 4.1 List of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.2 Preservation and Disclosure of Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.3 Reports by the Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.4 Reports by the Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE V
REMEDIES OF THE DEBENTURE TRUSTEE AND
SECURITYHOLDERS UPON EVENT OF DEFAULT
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.2 Payment of Securities on Default; Suit Therefor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.3 Application of Moneys Collected by Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.4 Proceedings by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.5 Proceedings by Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.6 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.7 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders . . . . . . . . . . . . . . . . 33
SECTION 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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ARTICLE VI
CONCERNING THE DEBENTURE TRUSTEE
SECTION 6.1 Duties and Responsibilities of Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.2 Reliance on Documents, Opinions, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.3 No Responsibility for Recitals, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.4 Debenture Trustee, Authenticating Agent, Paying Agents, Transfer Agents
and Registrar May Own Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.5 Moneys to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.6 Compensation and Expenses of Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.7 Officers' Certificate as Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.8 Conflicting Interest of Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.9 Eligibility of Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.10 Resignation or Removal of Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.11 Acceptance by Successor Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.12 Succession by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.13 Limitation on Rights of Debenture Trustee as a Creditor . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.14 Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.2 Proof of Execution by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.3 Who Are Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.4 Securities Owned by Corporation Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.5 Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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ARTICLE VIII
MEETINGS OF SECURITYHOLDERS
SECTION 8.1 Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.2 Call of Meetings by Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.3 Call of Meetings by Corporation or Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.4 Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.5 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.6 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE IX
AMENDMENTS
SECTION 9.1 Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.2 With Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.3 Compliance with Trust Indenture Act; Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.4 Notation on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.5 Evidence of Compliance of Supplemental Indenture to be Furnished to Debenture Trustee . . . . . . . . . . . . 51
ARTICLE X
CONSOLIDATION, MERGER, SALE,
CONVEYANCE, TRANSFER AND LEASE
SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.2 Successor Person to be Substituted for Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.3 Opinion of Counsel to be Given Debenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.1 Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 11.2 Deposited Moneys and U.S. Government Obligations to be Held in Trust by Debenture Trustee. . . . . . . . . . . 54
SECTION 11.3 Paying Agent to Repay Moneys Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 11.4 Return of Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE XII
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.1 Indenture and Securities Solely Corporate Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 13.2 Official Acts by Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 13.3 Surrender of Corporation Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.4 Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.6 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 13.7 Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.8 Trust Indenture Act to Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.9 Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.10 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.11 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 13.12 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 13.13 Acknowledgment of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XIV
PREPAYMENT OF SECURITIES
SECTION 14.1 Special Event Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 14.2 Optional Prepayment by Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 14.3 No Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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SECTION 14.4 Notice of Prepayment; Selection of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 14.5 Payment of Securities Called for Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.1 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 15.2 Default on Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 15.3 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 15.4 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 15.5 Debenture Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 15.6 Notice by the Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 15.7 Rights of the Debenture Trustee; Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.8 Subordination May Not Be Impaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.9 Certain Conversions or Exchanges Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.1 Extension of Interest Payment Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 16.2 Notice of Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
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TESTIMONIUM ............................................................................................................. 70
SIGNATURES ............................................................................................................ 70
EXHIBIT A ............................................................................................................ A-1
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Tie Sheet of provisions of Trust Indenture Act of 1939 with Indenture
dated as of August 6, 1999 between CNB Financial Corp. and Wilmington Trust
Company, as Debenture Trustee:
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310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
310(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09, 6.10, 6.11
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a), 4.02(a)
312(b) and (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02(b), 4.04(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(a)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04(b)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07, 13.06, 13.06
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07, 13.06
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
315(a)(c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N/A
316(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.02
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.08
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THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
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THIS INDENTURE, dated as of August 6, 1999, between CNB Financial
Corp., a New York corporation (hereinafter called the "Corporation"), and
Wilmington Trust Company, a Delaware banking corporation, as debenture trustee
(hereinafter sometimes called the "Debenture Trustee").
W I T N E S S E T H :
In consideration of the premises, and the purchase of the Securities
(as defined below) by the holders thereof, the Corporation covenants and agrees
with the Debenture Trustee for the equal and proportionate benefit of the
respective holders from time to time of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
The terms defined in this Section 1.1 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes
of this Indenture shall have the respective meanings specified in this Section
1.1. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by
reference therein defined in the Securities Act of 1933, as amended (the
"Securities Act"), shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the date
of this Indenture as originally executed. The following terms have the
meanings given to them in the Trust Agreement: (i) the Trust; (ii) Clearing
Agency; (iii) Delaware Trustee; (iv) Property Trustee; (v) Administrators; (vi)
Series A Capital Securities; (vii) Series B Capital Securities; (viii) Direct
Action; (ix) Series A Capital Securities Guarantee; (x) Series B Capital
Securities Guarantee; (xi) Distributions; and (xii) Initial Purchaser. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision. Headings are used for convenience of reference only and
do not affect interpretation. The singular includes the plural and vice versa.
"Additional Sums" shall have the meaning set forth in Section 2.6(g).
"Affiliate" shall have the meaning given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Allocable Amounts," when used with respect to any Senior
Indebtedness, means all amounts due or to become due on such Senior
Indebtedness less, if applicable, any
<PAGE> 11
amount which would have been paid to, and retained by, the holders of such
Senior Indebtedness (whether as a result of the receipt of payments by the
holders of such Senior Indebtedness from the Corporation or any other obligor
thereon or from any holders of, or trustee in respect of, other indebtedness
that is subordinate and junior in right of payment to such Senior Indebtedness
pursuant to any provision of such Indebtedness for the payment over of amounts
received on account of such indebtedness to the holders of such Senior
Indebtedness or otherwise) but for the fact that such Senior Indebtedness is
subordinate or junior in right of payment to (or subject to a requirement that
amounts received on such Senior Indebtedness be paid over to obligees on) trade
accounts payable or accrued liabilities arising in the ordinary course of
business.
"Authenticating Agent" shall mean any agent or agents of the Debenture
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of the
Corporation or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly
adopted by the Board of Directors, or such committee of the Board of Directors
or officers of the Corporation to which authority to act on behalf of the Board
of Directors has been delegated, and to be in full force and effect on the date
of such certification, and delivered to the Debenture Trustee.
"Book-Entity Capital Securities" shall have the meaning set forth in
Section 2.5(a)(i).
"Business Day" shall mean, with respect to any series of Securities,
any day other than a Saturday or a Sunday, or a day on which banking
institutions in Wilmington, Delaware, New York, New York or the State of New
York are authorized or required by law or executive order to remain closed or a
day on which the principal corporate trust office of the property trustee is
closed for business.
"Capital Securities" shall mean undivided beneficial interests in the
assets of the Trust which are designated as "Capital Securities" and rank pari
passu with the Common Securities issued by the Trust. References to "Capital
Securities" shall include collectively any Series A Capital Securities and
Series B Capital Securities.
"Capital Securities Guarantee" shall mean any guarantee agreement that
the Corporation may enter into with Wilmington Trust Company or other Persons
that operates directly or indirectly for the benefit of holders of Capital
Securities and shall include the Series A Capital Securities Guarantee and the
Series B Capital Securities Guarantee with respect to the Series A Capital
Securities and the Series B Capital Securities, respectively.
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"Commission" shall mean the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Securities" shall mean undivided beneficial interests in the
assets of the Trust which are designated as "Common Securities" and rank pari
passu with Capital Securities issued by the Trust.
"Common Stock" shall mean the Common Stock, no par value per share, of
the Corporation or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Compounded Interest" shall have the meaning set forth in Section
16.1.
"Corporation" shall mean the person identified as "Corporation" in the
preamble to this Indenture and, subject to the provisions of Article X, shall
also include its successors and assigns.
"Corporation Request" or "Corporation Order" shall mean a written
request or order signed in the name of the Corporation by an Officer and
delivered to the Debenture Trustee.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debenture Trustee" shall mean the Person identified as "Debenture
Trustee" in the preamble to this Indenture and, subject to the provisions of
Article VI hereof, shall also include its successors and assigns.
"Default" shall mean any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the meaning set forth in Section 2.11.
"Deferred Interest" shall have the meaning set forth in Section 16.1.
"Definitive Securities" shall mean those Securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Securities for which the
Corporation shall determine that such Securities will be issued as a Global
Security, Wilmington Trust Company, New York, New York, or another clearing
agency, or any successor registered as a clearing agency pursuant to Section
17A of the Exchange Act or other applicable statute or regulation, which, in
each case, shall be designated by the Corporation pursuant to Section 2.5(d).
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<PAGE> 13
"Dissolution Event" shall mean any event resulting in the dissolution
of the Trust pursuant to the Trust Agreement, and the distribution of the
Securities held by the Property Trustee to the holders of the Trust Securities
issued by the Trust pro rata in accordance with the Trust Agreement.
"Event of Default" shall mean any event specified in Section 5.1,
continued for the period of time, if any, and after the giving of the notice,
if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" shall mean the offer that may be made pursuant to the
Registration Rights Agreement (i) by the Corporation to exchange the Exchange
Securities for the Initial Securities and to execute the Series B Capital
Securities Guarantee in respect of the Series B Capital Securities and (ii) by
the Trust to exchange the Series B Capital Securities for the Series A Capital
Securities.
"Exchange Securities" shall mean the Corporation's Floating Rate
Junior Subordinated Deferrable Interest Debentures due September 30, 2029,
Series B, as authenticated and issued under this Indenture.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 16.1.
"Federal Reserve" shall mean the Board of Governors of the Federal
Reserve System.
"Global Security" shall mean, with respect to the Securities, a
Security executed by the Corporation and delivered by the Debenture Trustee to
the Depositary or pursuant to the Depositary's instruction, or if no
instructions are received then held by the Property Trustee, all in accordance
with this Indenture, which Security shall be registered in the name of the
Depositary or its nominee.
"Indebtedness" shall mean, whether recourse is to all or a portion of
the assets of the Corporation and whether or not contingent, (i) every
obligation of the Corporation for money borrowed; (ii) every obligation of the
Corporation evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of the Corporation
with respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of the Corporation; (iv) every obligation of the
Corporation issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business); (v) every capital lease obligation of the
Corporation; (vi) all indebtedness of the Corporation, whether incurred on or
prior to the date of this Indenture or hereafter incurred, for claims in
respect of derivative products, including interest rate, foreign exchange rate
and commodity forward contracts, options and swaps and similar arrangements;
and (vii) every obligation of the type referred to in clauses (i) through (vi)
of another Person and all dividends of another Person the payment of which,
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<PAGE> 14
in either case, the Corporation has guaranteed or is responsible or liable for
directly or indirectly, as obligor or otherwise.
"Indebtedness Ranking on a Parity with the Securities" shall mean
Indebtedness, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks pari passu with and not prior to the Securities in the right of
payment upon the happening of the dissolution, winding-up, liquidation or
reorganization of the Corporation, including, without limitation, all of the
Corporation's other debt securities, and guarantees in respect of those debt
securities, issued to any trust other than the Trust, or a trustee of such
trust, partnership or other entity affiliated with the Corporation, that is a
financing vehicle of the Corporation (a "financing entity") in connection with
the issuance by such financing entity of equity securities or other securities
guaranteed by the Corporation pursuant to an instrument that ranks pari passu
with or junior in right of payment to the Capital Securities Guarantee. The
securing of any Indebtedness otherwise constituting Indebtedness Ranking on a
Parity with the Securities shall not be deemed to prevent such Indebtedness
from constituting Indebtedness Ranking on a Parity with the Securities.
"Indebtedness Ranking Junior to the Securities" shall mean any
Indebtedness, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks junior to and not pari passu with or prior to the Securities (and
any other Indebtedness Ranking on a Parity with the Securities) in right of
payment upon the happening of the dissolution or winding-up or liquidation or
reorganization of the Corporation. The securing of any Indebtedness otherwise
constituting Indebtedness Ranking Junior to the Securities shall not be deemed
to prevent such Indebtedness from constituting Indebtedness Ranking Junior to
the Securities.
"Indenture" shall mean this instrument as originally executed or, if
amended as herein provided, as so amended.
"Initial Optional Redemption Date" shall mean September 30, 2009.
"Initial Securities" shall mean the Corporation's Floating Rate Junior
Subordinated Deferrable Interest Debentures due September 30, 2029, Series A,
as authenticated and issued under this Indenture.
"Interest Payment Date" shall have the meaning set forth in Section
2.6(a).
"Investment Company" shall mean an investment company as defined in
the Investment Company Act.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" shall mean the receipt by the Trust of an
opinion of counsel experienced in such matters to the effect that as a result
of (a) any amendment to, or change (including any announced prospective change)
in, the laws or any regulations
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<PAGE> 15
thereunder of the United States or any rules, guidelines or policies of any
applicable regulatory authority for the Debenture Issuer or (b) any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Trust Securities, there is more than an insubstantial risk that
the Trust is, or will be, considered an investment company that is required to
be registered under the Investment Company Act.
"Like Amount" shall mean (i) with respect to a redemption of the Trust
Securities, Trust Securities having a liquidation amount equal to the principal
amount of Securities to be paid in accordance with their terms and (ii) with
respect to a distribution of Securities upon the liquidation of the Trust,
Securities having a principal amount equal to the liquidation amount of the
Trust Securities of the holder to whom Securities are distributed.
"Liquidated Damages" shall have the meaning set forth in the
Registration Rights Agreement.
"Maturity Date" shall mean September 30, 2029.
"Non Book-Entry Capital Securities" shall have the meaning set forth
in Section 2.5(a)(ii).
"Officers" shall mean any of the Chairman, the Chief Executive
Officer, the President, an Executive or Senior Vice President, a Vice
President, the Chief Financial Officer, the Secretary or an Assistant Secretary
of the Corporation.
"Officers' Certificate" shall mean a certificate signed by two
Officers and delivered to the Debenture Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
be an employee of the Corporation, and or an affiliate of the corporation.
"Other Debentures" shall mean all junior subordinated debentures other
than the Securities issued by the Corporation from time to time and sold to
trusts other than the Trust to be established by the Corporation (if any), in
each case similar to the Trust.
"Other Guarantees" shall mean all guarantees other than the Capital
Securities Guarantee and the Common Securities Guarantee issued by the
Corporation with respect to preferred beneficial interests (if any) issued by
trusts other than the Trust to be established by the Corporation (if any), in
each case similar to the Trust.
The term "outstanding" when used with reference to the Securities,
shall mean, subject to the provisions of Section 7.4, as of the date of
determination, all Securities therefore authenticated and delivered by the
Debenture Trustee or the Authenticating Agent under this Indenture, except:
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<PAGE> 16
(a) Securities theretofore canceled by the Debenture
Trustee or the Authenticating Agent or delivered to
the Debenture Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
prepayment of which moneys in the necessary amount
shall have been deposited in trust with the Debenture
Trustee or with any paying agent (other than the
Corporation) or shall have been set aside and
segregated in trust by the Corporation (if the
Corporation shall act as its own paying agent);
provided that, if such Securities, or portions
thereof, are to be prepaid prior to maturity thereof,
notice of such prepayment shall have been given as
set forth in Article XIV or provision satisfactory to
the Debenture Trustee shall have been made for giving
such notice; and
(c) Securities in lieu of or in substitution for which
other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.8 unless
proof satisfactory to the Corporation and the
Debenture Trustee is presented that any such
Securities are held by bona fide holders in due
course.
(d) "Paying Agent" means the Debenture Trustee or any
Person authorized by the Corporation to pay the
principal of (or premium, if any) or interest on, or
other amounts in respect of any Securities on behalf
of the Corporation.
"Person" shall mean any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security shall mean every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.8 in lieu
of a lost, destroyed or stolen Security shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security.
"Prepayment Price" shall mean the prepayment price of the Debentures
equal to 100% of the principal amount of the Debentures to be prepaid plus any
accrued and unpaid interest (including Compounded Interest and Additional Sums,
if any, thereon to the date of prepayment).
"Principal Office of the Debenture Trustee," or other similar term,
shall mean the office of the Debenture Trustee, at which at any particular time
its corporate trust business shall be administered.
"Principal Subsidiary Bank" means each of (a) Central National Bank,
(b) any other banking subsidiary of the Corporation the consolidated assets of
which constitute 20% or more of the consolidated assets of the Corporation and
its consolidated
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<PAGE> 17
subsidiaries (c) any other banking subsidiary designated as a Principal
Subsidiary Bank pursuant to a Board Resolution and set forth in an Officers'
Certificate delivered to the Debenture Trustee, and (d) any subsidiary of the
Corporation that owns, directly or indirectly, any voting securities, or
options, warrants or rights to subscribe for or purchase voting securities, of
any Principal Subsidiary Bank under clause (a), (b) or (c), and in the case of
clause (a), (b), (c) or (d) their respective successors (whether by
consolidation, merger, conversion, transfer of substantially all their assets
and business or otherwise) so long as any such successor is a banking
subsidiary (in the case of clause (a), (b) or (c)) or a subsidiary (in the case
of clause (d)) of the Corporation.
"Purchase Agreement" shall mean the Purchase Agreement, dated August
4, 1999, by and among the Corporation, the Trust and the Initial Purchaser
named therein.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of August 6, 1999, by and among the Corporation, the Trust
and the Initial Purchaser named therein, as such agreement may be amended,
modified or supplemented from time to time.
"Regulatory Capital Event" shall mean the receipt by the Corporation
of an opinion of independent bank regulatory counsel experienced in such
matters to the effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, any laws or regulations of the
United States or any rules, guidelines or policies of an applicable regulatory
agency or authority for the Debenture Issuer or (b) any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Trust Securities, there is more than an insubstantial risk that
the Corporation will not be entitled to treat an amount equal to the
liquidation amount of the Capital Securities as Tier 1 Capital (or its then
equivalent if the Corporation were subject to such capital requirement);
provided, however, that the distribution of the Securities in connection with
the liquidation of the Trust by the Corporation shall not in and of itself
constitute a Regulatory Capital Event.
"Responsible Officer" shall mean any officer of the Debenture
Trustee's Corporate Trust Administration department with direct responsibility
for the administration of the Indenture and also means, with respect to a
particular corporate trust matter, any other officer of the Debenture Trustee
to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Security" shall mean Securities that bear or are required
to bear the legends relating to transfer restrictions under the Securities Act
set forth in Exhibit A hereto.
"Rule 144A" shall mean Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
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<PAGE> 18
"Securities" shall mean, collectively, the Initial Securities and the
Exchange Securities.
"Securityholder," "holder of Securities," or other similar terms,
shall mean any Person in whose name at the time a particular Security is
registered in the Security Register kept by the Corporation or the Debenture
Trustee for that purpose in accordance with the terms of this Indenture.
"Security Register" shall mean (i) prior to a Dissolution Event, the
list of holders provided to the Debenture Trustee pursuant to Section 4.1, and
(ii) following a Dissolution Event, any security register maintained by a
security registrar for the Securities appointed by the Corporation following
the execution of a supplemental indenture providing for transfer procedures as
provided for in Section 2.7(a).
"Senior Indebtedness" shall mean the principal of (and premium, if
any) and interest, if any (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Corporation
whether or not such claim for post petition interest is allowed in such
proceedings), on all Indebtedness, whether outstanding on the date of execution
of this Indenture, or hereafter created, assumed or incurred, except
Indebtedness Ranking on a Parity with the Securities or Indebtedness Ranking
Junior to the Securities, and any deferrals, renewals or extensions of such
Senior Indebtedness. Senior Indebtedness shall not include (a) any
Indebtedness of the Corporation which, when incurred and without respect to any
election under Section 1111(b) of the Bankruptcy Reform Act of 1978, as
amended, was without recourse to the Corporation, (b) any Indebtedness of the
Corporation to any of its Subsidiaries, (c) any Indebtedness to any employee of
the Corporation and (d) any Securities.
"Special Event" shall mean an Investment Company Event, a Regulatory
Capital Event or a Tax Event, as the context requires.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture, limited liability company or similar
entity, at least a majority of whose outstanding partnership, membership or
similar interests shall at the time be owned by such Person or by one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries and
(iii) any limited partnership of which such Person or any of its Subsidiaries
is a general partner. For the purposes of this definition, "voting stock"
means shares, interests, participations or other equivalents in the equity
interest (however designated) in such Person that ordinarily has voting power
for the election of directors (or the equivalent),whether at all times or only
so long as no senior class of stock has such voting power by reason of any
contingency.
"Tax Event" shall mean the receipt by the Trust of an opinion of
independent counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
any laws or regulations of the United States or any political subdivision or
taxing authority thereof or therein, or as a
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<PAGE> 19
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement or decision is announced on or after
the date of original issuance of the Trust Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of delivery of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Securities, (ii) the interest
payable by the Corporation on the Securities is not, or within 90 days of the
date of delivery of such opinion will not be, deductible by the Corporation, in
whole or in part, for United States federal income tax purposes or (iii) the
Trust is, or will be within 90 days of the date of delivery of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trust" shall mean CNBF Capital Trust I, a Delaware business trust
created for the purpose of issuing its undivided beneficial interests in
connection with the issuance of Securities under this Indenture.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement
of the Trust, dated as of August 6, 1999, by and among the Trustees (as defined
therein), the Corporation, as sponsor, and the holders from time to time of
undivided beneficial interest in the assets of the Trust, as amended from time
to time.
"Trust Securities" shall mean, collectively, the Capital Securities
and the Common Securities.
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii), are not callable or prepayable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction with respect to the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE II
SECURITIES
SECTION 2.1 Forms Generally.
The Securities and the Debenture Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, the
terms of which are incorporated in and
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<PAGE> 20
made a part of this Indenture. The Securities may have letters, numbers or
other marks of identification, notations, legends or endorsements required by
law, stock exchange rule, agreements to which the Corporation is subject or
usage. Each Security shall be dated the date of its authentication.
SECTION 2.2 Execution and Authentication.
An Officer shall sign the Securities on behalf of the Corporation by
manual or facsimile signature. If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the
Security shall nevertheless be valid.
A Security shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose until authenticated by the manual
signature of the Debenture Trustee. The signature of the Debenture Trustee
shall be conclusive evidence that the Security has been authenticated under
this Indenture.
The Debenture Trustee shall, upon a Corporation Order, authenticate
for original issue up to, and the aggregate principal amount of Securities
outstanding at any time may not exceed, $20,000,000 aggregate principal amount
of the Securities, except as provided in Sections 2.7, 2.8, 2.9 and 14.5. The
series of Securities to be initially issued hereunder shall be the Initial
Securities.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.5, the Securities shall be issued in
fully registered certificated form without interest coupons. Principal of and
interest on the Securities issued in certificated form will be payable, the
transfer of such Securities will be registrable and such Securities will be
exchangeable for Securities bearing identical terms and provisions, at the
office or agency of the Corporation maintained for such purpose under Section
3.2; provided, however, that payments of interest may be made at the option of
the Corporation (i) by check mailed to the holder at such address as shall
appear in the Security Register, or (ii) by transfer to an account maintained
by the Person entitled thereto, provided that proper transfer instructions have
been received in writing by the relevant record date. Notwithstanding the
foregoing, so long as the holder of any Securities is the Property Trustee, the
payment of the principal of and interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on such Securities
held by the Property Trustee will be made at such place and to such account as
may be designated by the Property Trustee.
SECTION 2.4 Legends.
(a) Except as permitted by subsection (b) of this Section 2.4 or
as otherwise determined by the Corporation in accordance with applicable law,
each Security shall bear the applicable legends relating to restrictions on
transfer pursuant to the Securities Act and any other applicable securities
laws in substantially the form set forth on Exhibit A hereto.
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<PAGE> 21
(b) In the event of an Exchange Offer, the Corporation shall issue
and the Debenture Trustee, upon Corporation Order, shall authenticate Exchange
Securities in exchange for Initial Securities accepted for exchange in the
Exchange Offer, which Exchange Securities shall not bear the legends required
by subsection (a) above, in each case unless the holder of such Initial
Securities is either (A) a broker-dealer who purchased such Initial Securities
directly from the Corporation for resale pursuant to Rule 144A or any other
available exemption under the Securities Act, (B) a Person participating in the
distribution of the Initial Securities or (C) a Person who is an Affiliate of
the Corporation or the Trust.
SECTION 2.5 Global Security.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry form
("Book-Entry Capital Securities"), a Like Amount of Definitive Securities shall
be presented to the Debenture Trustee (if an arrangement with the Depositary
has been maintained) by the Property Trustee in exchange for one or more Global
Securities (as may be required pursuant to Section 2.7), to be registered in
the name of the Depositary, or its nominee, and delivered by the Debenture
Trustee to the Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Administrators; the Corporation upon any
such presentation shall execute one or more Global Securities in such aggregate
principal amount and deliver the same to the Debenture Trustee for
authentication and delivery in accordance with this Indenture; and payments on
the Securities issued as a Global Security will be made to the Depositary; and
(ii) if any Capital Securities are held in certificated
form, the related Definitive Securities may be presented to the Debenture
Trustee, by the Property Trustee and any Capital Security certificates which
represent Capital Securities other than Book-Entry Capital Securities ("Non
Book-Entry Capital Securities") will be deemed to represent beneficial
interests in Securities presented to the Debenture Trustee by the Property
Trustee having an aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Capital Securities until such Capital Security
certificates are presented to the security registrar for the Securities for
transfer or reissuance, at which time such Capital Security certificates will
be canceled, and a Security in a Like Amount, registered in the name of the
holder of the Capital Security certificate or the transferee of the holder of
such Capital Security certificate, as the case may be, will be executed by the
Corporation and delivered to the Debenture Trustee for authentication and
delivery in accordance with this Indenture; and upon the issuance of such
Securities, Securities with an equivalent aggregate principal amount that were
presented by the Property Trustee to the Debenture Trustee will be canceled.
(b) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, however,
that the aggregate principal amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and prepayments. Any endorsement of a Global Security to
reflect the amount of any increase or decrease in the
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aggregate principal amount of outstanding Securities represented thereby shall
be made by the Debenture Trustee, in accordance with instructions given by the
Corporation as required by this Section 2.5.
(c) The Global Securities may be transferred, in whole but not in
part, only to the Depositary, to another nominee of the Depositary, or to a
successor Depositary selected or approved by the Corporation or to a nominee of
such successor Depositary.
(d) If at any time the Depositary notifies the Corporation that it
is unwilling or unable to continue as Depositary or the Depositary has ceased
to be a clearing agency registered under the Exchange Act, and, in each case, a
successor Depositary is not appointed by the Corporation within 90 days after
the Corporation receives such notice or becomes aware of such condition, as the
case may be, the Corporation will execute, and the Debenture Trustee, upon
receipt of a Corporation Order, will authenticate and make available for
delivery the Definitive Securities, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global
Security, in exchange for such Global Security. If there is an Event of
Default that is continuing, the Depositary shall have the right to exchange the
Global Securities for Definitive Securities. In addition, the Corporation may
at any time determine that the Securities shall no longer be represented by a
Global Security. In the event of such an Event of Default or such a
determination, the Corporation shall execute, and subject to Section 2.7, the
Debenture Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Corporation and a Corporation Order, will authenticate and
make available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security, in exchange for such Global Security. Upon the
exchange of the Global Security for such Definitive Securities, in authorized
denominations, the Global Security shall be canceled by the Debenture Trustee.
Such Definitive Securities issued in exchange for the Global Security shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Debenture Trustee. The Debenture Trustee
shall deliver such Definitive Securities to the Depositary for delivery to the
Persons in whose names such Definitive Securities are so registered.
SECTION 2.6 Interest.
(a) Each Security will bear interest, at the rate per annum, reset
quarterly, equal to 3-month LIBOR (as defined below), plus 275 basis points
(the "Coupon Rate"), from the most recent date to which interest has been paid
or duly provided for or, if no interest has been paid or duly provided for,
from August 6, 1999, until the principal thereof becomes due and payable, and
at the Coupon Rate on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of interest, compounded quarterly, payable (subject to the provisions of
Article XVI) quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing June 30, 1999 (each, an "Interest Payment
Date"), to the Person in whose name such Security or any predecessor Security
is registered at the close
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of business on the regular record date for such interest installment, which
shall be the first day of the month in which the relevant Interest Payment Date
falls.
(b) The Coupon Rate on the Securities for each quarter (or other
period for which interest is payable) will be determined on the Determination
Date (as defined below) for such quarter (or other period for which interest is
payable) and will be a per annum rate reset quarterly equal to 3-month LIBOR
(determined as set forth below) plus 275 basis points, and will be effective as
of the first day of such quarter (or other period for which interest is
payable).
(c) On each Determination Date, the Calculation Agent will
calculate the interest rate, based on 3-month LIBOR, for each interest period
commencing on the second London Banking Day immediately following such
Determination Date. "3-month LIBOR" means, with respect to an interest period
relating to a Distribution Date, the London interbank offered rate for
three-month, Eurodollar deposits determined in the following order of priority:
(i) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity that appears on Telerate Page
3750 as of 11:00 a.m. (London time) on the related Determination Date);
(ii) if such rate does not appear on Telerate Page 3750 as
of 11:00 a.m. (London time) on the related Determination Date, 3-month LIBOR
will be the arithmetic mean of the rates (expressed as percentages per annum)
for Eurodollar deposits having a three-month maturity that appear on Reuters
Monitor Money Rates Page LIBO ("Reuters Page LIBO") as of 11:00 a.m. (London
time) on such Determination Date;
(iii) if such rate does not appear on Reuters Page LIBO as
of 11:00 a.m. (London time) on the related Determination Date, the Calculation
Agent will request the principal London offices of four leading banks in the
London interbank market to provide such banks' offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for
Eurodollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two quotations are provided,
3-month LIBOR will be the arithmetic mean of such quotations;
(iv) if fewer than two such quotations are provided as
requested in clause (iii) above, the Calculation Agent will request four major
New York City banks to provide such banks' offered quotations (expressed as
percentages per annum) to leading European banks for loans in Eurodollars as of
11:00 a.m. (London time) on such Determination Date. If at least two such
quotations are provided, 3-month LIBOR will be the arithmetic mean of such
quotations; and
(v) if fewer than two such quotations are provided as
requested in clause (iv) above, 3-month LIBOR will be 3-month LIBOR determined
with respect to the interest period immediately preceding such current interest
period.
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<PAGE> 24
If the rate for Eurodollar deposits having a three-month maturity that
initially appears on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, as of 11:00 a.m. (London time) on the related Determination Date is
superceded on Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a
corrected rate before 12:00 noon (London time) on such Determination Date, the
corrected rate as so substituted on the applicable page will be the applicable
3-month LIBOR for such Determination Date.
As used herein:
"Calculation Agent" means Wilmington Trust Company, Wilmington,
Delaware.
"Determination Date" means the date that is two London Banking Days
preceding the first day of any quarter or other period for which a Distribution
will be payable.
"London Banking Day" means a day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
"Telerate Page 3750" means the display designated as "Page 3750" on
the Dow Jones Telerate Service (or such other page as may replace Page 3750 on
that service or such other service or services as may be nominated by the
British Bankers' Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits).
(d) All percentages resulting from any calculations on the
Securities will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a percentage point rounded
upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or
.0987655)), and all dollar amounts used in or resulting from such calculation
will be rounded to the nearest cent (with one-half cent being rounded upward).
(e) On the Determination Date, the Calculation Agent shall notify
the Corporation and the Paying Agent of the applicable Coupon Rate in effect
for the related Distribution period. The Calculation Agent shall, upon the
request of the holder of any Securities, provide the Coupon Rate then in
effect. All calculations made by the Calculation Agent in the absence of
manifest error shall be conclusive for all purposes and binding on the
Corporation and the holders of the Securities.
(f) The amount of interest payable on any Interest Payment Date
shall be computed on the basis of the actual number of days elapsed and a
360-day year.
(g) During such time as the Trust is the holder of all Securities
and so long as no Event of Default has occurred and is continuing, the
Corporation shall pay any additional amounts on the Securities as may be
necessary in order that the amount of Distributions then due and payable by the
Trust on the outstanding Trust Securities shall not be reduced as a result of
any additional taxes, duties and other governmental charges to which the Trust
has become subject as a result of a Tax Event ("Additional Sums").
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SECTION 2.7 Transfer and Exchange.
(a) Transfer Restrictions.
(i) The Initial Securities, and those Exchange Securities
with respect to which any Person described in Section 2.4(b)(A), (B) or (C) is
the beneficial owner, may not be transferred except in compliance with the
legend contained in Exhibit A unless otherwise determined by the Corporation in
accordance with applicable law. Upon any distribution of the Securities
following a Dissolution Event, the Corporation and the Debenture Trustee shall
enter into a supplemental indenture pursuant to Section 9.1 to provide for the
transfer restrictions and procedures with respect to the Securities
substantially similar to those contained in the Trust Agreement to the extent
applicable in the circumstances existing at such time.
(ii) The Securities will be issued and may be transferred
only in blocks having an aggregate principal amount of not less than $100,000
and in multiples of $1,000 in excess thereof. Any attempted transfer of the
Securities in a block having an aggregate principal amount of less than
$100,000 shall be deemed to be voided and of no legal effect whatsoever. Any
such purported transferee shall be deemed not to be a holder of such Securities
for any purpose, including, but not limited to the receipt of payments on such
Securities, and such purported transferee shall be deemed to have no interest
whatsoever in such Securities.
(b) General Provisions Relating to Transfers and Exchanges. To
permit registrations of transfers and exchanges, the Corporation shall execute
and the Debenture Trustee shall authenticate Definitive Securities and Global
Securities at the request of the security registrar for the Securities. All
Definitive Securities and Global Securities issued upon any registration of
transfer or exchange of Definitive Securities or Global Securities shall be the
valid obligations of the Corporation, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Definitive Securities or Global
Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made to a holder for any registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any tax or similar governmental charge payable in
connection therewith.
The Corporation shall not be required to: (i) issue, register the
transfer of or exchange Securities during a period beginning at the opening of
business 15 days before the day of mailing of a notice of prepayment or any
notice of selection of Securities for prepayment under Article XIV hereof and
ending at the close of business on the day of such mailing; or (ii) register
the transfer of or exchange any Security so selected for prepayment in whole or
in part, except, in the case of any such Security to be prepaid in part, any
portion thereof not to be prepaid.
Prior to due presentment for the registration of a transfer of any
Security, the Debenture Trustee, the Corporation and any agent of the Debenture
Trustee or the Corporation may deem and treat the Person in whose name any
Security is registered as
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<PAGE> 26
the absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Securities, and none of the Debenture
Trustee, the Corporation or any agents of the Debenture Trustee or the
Corporation shall be affected by notice to the contrary.
(c) Exchange of Initial Securities for Exchange Securities. The
Initial Securities may be exchanged for Exchange Securities pursuant to the
terms of the Exchange Offer. The Debenture Trustee shall make the exchange as
follows:
The Corporation shall present the Debenture Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Exchange Securities, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Initial Securities properly tendered
in the Exchange Offer that are represented by a Global
Security, the principal amount of Initial Securities properly
tendered in the Exchange Offer that are represented by
Definitive Securities, the name of each holder of such
Definitive Securities, the principal amount properly tendered
in the Exchange Offer by each such holder and the name and
address to which Definitive Securities for Exchange Securities
shall be registered and sent for each such holder.
The Debenture Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Exchange Securities have
been registered under Section 5 of the Securities Act and the Indenture has
been qualified under the Trust Indenture Act and (y) with respect to the
matters set forth in Section 3(q) of the Registration Rights Agreement and
(iii) a Corporation Order, shall authenticate (A) a Global Security
representing Exchange Securities in aggregate principal amount equal to the
aggregate principal amount of Initial Securities represented by a Global
Security indicated in such Officers' Certificate as having been properly
tendered and (B) Definitive Securities representing Exchange Securities
registered in the names of, and in the principal amounts indicated in, such
Officers' Certificate.
If the principal amount of the Global Security for the Exchange
Securities is less than the principal amount of the Global Security for the
Initial Securities, the Debenture Trustee shall make an endorsement on such
Global Security for Initial Securities indicating a reduction in the principal
amount represented thereby.
The Debenture Trustee shall deliver such Definitive Securities
representing Exchange Securities to the holders thereof as indicated in such
Officers' Certificate.
SECTION 2.8 Replacement Securities.
(a) If any mutilated Security is surrendered to the Debenture
Trustee together with such security or indemnity as may be required by the
Corporation or the Debenture
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<PAGE> 27
Trustee to save each of them harmless, the Corporation shall execute and the
Debenture Trustee shall authenticate and deliver in exchange therefor a
replacement Security of the same series, of like tenor and aggregate principal
amount, bearing the same legends, and bearing a number not contemporaneously
outstanding.
(b) If there shall be delivered to the Corporation and to the
Debenture Trustee (i) evidence to their satisfaction of the destruction, loss
or theft of any Security, and (ii) such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Corporation or the Debenture Trustee that such Security has been
acquired by a bona fide purchaser or a protected purchaser, the Corporation
shall execute and upon its request the Debenture Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a replacement
Security of the same series, of like tenor and aggregate principal amount and
bearing the same legends as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
(c) If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Corporation in its discretion
may, instead of issuing a replacement Security, pay such Security.
(d) Upon the issuance of any replacement Security under this
Section 2.8, the Corporation may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Debenture Trustee) connected therewith.
(e) Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Corporation, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly issued
hereunder.
(f) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.9 Temporary Securities.
Pending the preparation of Definitive Securities, the Corporation may
execute, and upon Corporation Order the Debenture Trustee shall authenticate
and deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized denomination,
substantially of the tenor of the Definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the Officers executing such Securities may determine, as
evidenced by their execution of such Securities.
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<PAGE> 28
If temporary Securities are issued, the Corporation shall cause
Definitive Securities to be prepared without unreasonable delay. The
Definitive Securities shall be printed, lithographed or engraved, or produced
by any combination thereof, or in any other manner permitted by the rules and
regulations of any applicable securities exchange, all as determined by the
Officers executing such Definitive Securities. After the preparation of
Definitive Securities, the temporary Securities shall be exchangeable for
Definitive Securities upon surrender of the temporary Securities at the office
or agency maintained by the Corporation for such purpose pursuant to Section
3.2 hereof, without charge to the holder thereof. Upon surrender for
cancellation of any one or more temporary Securities, the Corporation shall
execute, and the Debenture Trustee shall authenticate and deliver, in exchange
therefor one or more definitive securities, of any authorized denominations
having the same original issue date and Maturity Date and having the same terms
as such temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Securities.
SECTION 2.10 Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Debenture Trustee,
be delivered to the Debenture Trustee, and any such Securities and Securities
surrendered directly to the Debenture Trustee for any such purpose shall be
promptly canceled by it. The Corporation may at any time deliver to the
Debenture Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Corporation may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Debenture Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities shall be
destroyed by the Debenture Trustee and the Debenture Trustee shall deliver to
the Corporation a certificate of such destruction.
SECTION 2.11 Defaulted Interest.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the holder on the
relevant regular record date by virtue of having been such holder; and such
Defaulted Interest may be paid by the Corporation, at its election, as provided
in clause (a) or clause (b) below:
(a) The Corporation may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered at the
close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner: the
Corporation shall notify the Debenture Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security
and the date of the proposed payment, and at the same time the
Corporation shall deposit with the Debenture Trustee an amount of
money equal to the aggregate
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amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Debenture Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon, the
Debenture Trustee shall fix a special record date for the payment of
such Defaulted Interest which shall not be more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Debenture Trustee of the notice of the
proposed payment. The Debenture Trustee shall promptly notify the
Corporation of such special record date and, in the name and at the
expense of the Corporation, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his or
her address as it appears in the Security Register, not less than 10
days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special
record date and shall no longer be payable pursuant to the following
clause (b).
(b) The Corporation may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Corporation to the
Debenture Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Debenture
Trustee.
SECTION 2.12 CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Debenture Trustee shall use "CUSIP"
numbers in notices of prepayment as a convenience to Securityholders; provided,
however, that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a prepayment and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
prepayment shall not be affected by any defect in or omission of such numbers.
SECTION 2.13 Right of Set-Off.
Notwithstanding anything to the contrary herein, the Corporation shall
have the right to set off any payment it is otherwise required to make in
respect of any of the Securities to the extent the Corporation has theretofore
made, or is concurrently on the date of such payment making, a payment under
the Capital Securities Guarantee relating to such Securities or to a holder of
Capital Securities pursuant to an action undertaken under Section 13.13 of this
Indenture.
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ARTICLE III
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 3.1 Payment of Principal and Interest.
The Corporation covenants and agrees for the benefit of the holders of
the Securities that it will duly and punctually pay the principal of and
interest on the Securities at the place, at the respective times and in the
manner provided herein. The Corporation further covenants to pay any and all
amounts due in respect of the Securities, including, without limitation,
Additional Sums, as may be required pursuant to Section 2.6(g), Liquidated
Damages, if any, on the dates and in the manner required under the Registration
Rights Agreement and Compounded Interest, as may be required pursuant to
Section 16.1.
SECTION 3.2 Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Corporation
will maintain in Wilmington, Delaware an office or agency where the Securities
may be presented for payment, an office or agency where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon the
Corporation in respect of the Securities or this Indenture may be served. The
Corporation will give to the Debenture Trustee written notice of the location
of any such office or agency and of any change of location thereof. Until
otherwise designated from time to time by the Corporation in a notice to the
Debenture Trustee, any such office or agency for all of the above purposes
shall be the Principal Office of the Debenture Trustee. In case the
Corporation shall fail to maintain any such office or agency in Wilmington,
Delaware or shall fail to give such notice of the location or of any change in
the location thereof, presentations and demands may be made and notices may be
served at the Principal Office of the Debenture Trustee.
In addition to any such office or agency, the Corporation may from
time to time designate one or more offices or agencies outside Wilmington,
Delaware where the Securities may be presented for payment, for registration of
transfer and for exchange and where notices and demands to or upon the
Corporation in respect of the Securities or this Indenture may be served in the
manner provided in this Indenture, and the Corporation may from time to time
rescind such designation, as the Corporation may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Corporation of its obligation to maintain any such office or agency
in Wilmington, Delaware for the purposes above mentioned. The Corporation will
give to the Debenture Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3 Appointments to Fill Vacancies in Debenture Trustee's
Office.
The Corporation, whenever necessary to avoid or fill a vacancy in the
office of Debenture Trustee, will appoint, in the manner provided in Section
6.10, a Debenture Trustee, so that there shall at all times be a Debenture
Trustee hereunder.
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SECTION 3.4 Provision as to Paying Agent.
(a) If the Corporation shall appoint a paying agent other than the
Debenture Trustee with respect to the Securities, it will cause such paying
agent to execute and deliver to the Debenture Trustee an instrument in which
such agent shall agree with the Debenture Trustee, subject to the provisions of
this Section 3.4,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of or interest on
the Securities (whether such sums have been paid to
it by the Corporation or by any other obligor on the
Securities) in trust for the benefit of the holders
of the Securities; and
(2) that it will give the Debenture Trustee notice of any
failure by the Corporation (or by any other obligor
on the Securities) to make any payment of the
principal of or interest (including Additional Sums
and Compounded Interest, if any) on the Securities
when the same shall be due and payable.
(b) If the Corporation shall act as its own paying agent, it will,
on or before each due date of the principal of or interest on the Securities,
set aside, segregate and hold in trust for the benefit of the holders of the
Securities a sum sufficient to pay such principal or interest so becoming due
until such sums shall be paid to such persons or otherwise disposed of as
herein provided, and will notify the Debenture Trustee of its failure to so
act.
(c) The Corporation may, at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Corporation Order direct any Paying Agent to pay, to the Debenture
Trustee all sums held in trust by the Corporation or such Paying Agent, such
sums to be held by the Debenture Trustee upon the same terms as those upon
which such sums were held by the Corporation or such Paying Agent; and, upon
such payment by any Paying Agent to the Debenture Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
(d) Anything in this Section 3.4 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 3.4 is subject
to Sections 11.3 and 11.4.
SECTION 3.5 Certificate to Debenture Trustee.
The Corporation shall deliver to the Debenture Trustee, within 120
days after the end of each fiscal year of the Corporation ending after the date
hereof, an Officers' Certificate covering the preceding calendar year, stating
whether or not to the best knowledge of the signers thereof the Corporation is
in default in the performance, observance or fulfillment of or compliance with
any of the terms, provisions, covenants
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<PAGE> 32
and conditions of this Indenture, and if the Corporation shall be in default,
specifying all such defaults and the nature and status thereof of which they
may have knowledge.
SECTION 3.6 Compliance with Consolidation Provisions.
The Corporation will not, while any of the Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell or
convey all or substantially all of its property to any other Person unless the
provisions of Article X hereof are complied with.
SECTION 3.7 Limitation on Dividends.
The Corporation will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Corporation's capital stock, (ii) make any payment
of principal of or premium, if any, or interest on or repay, repurchase or
redeem any debt securities of the Corporation (including Other Debentures) that
rank pari passu with or junior in right of payment to the Securities, or (iii)
make any guarantee payments with respect to any guarantee (other than the
Capital Securities Guarantee) by the Corporation of the debt securities of any
Subsidiary of the Corporation (including Other Guarantees) if such guarantee
ranks pari passu with or junior in right of payment to the Securities, if at
such time (1) there shall have occurred any event of which the Corporation has
actual knowledge that (a) is, or with the giving of notice or the lapse of
time, or both, would be, an Event of Default and (b) in respect of which the
Corporation shall not have taken reasonable steps to cure, (2) if the
Securities are held by the Trust, the Corporation shall be in default with
respect to its payment of any obligations under the Capital Securities
Guarantee or (3) the Corporation shall have given notice of its election to
exercise its right to commence an Extended Interest Payment Period and shall
not have rescinded such notice, and such Extended Interest Payment Period or
any extension thereof shall have commenced and be continuing. Notwithstanding
the foregoing, the Corporation may make the following payments (a) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, the Corporation's capital stock (which includes Common
Stock and preferred stock), (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of
rights, stock or other property under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments made
pursuant to a Capital Securities Guarantee, (d) as a result of a
reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock or
indebtedness for another class or series of the Corporation's capital stock,
(e) the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged and (f) repurchases, redemptions
or other acquisitions of shares of capital stock of the Corporation in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with any of the Corporation's dividend
reinvestment or stockholder stock purchase plans or in connection with the
issuance of capital stock of the Corporation (or securities convertible into or
exercisable for such capital stock) as
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consideration in an acquisition transaction entered into prior to the
applicable Extended Interest Payment Period.
SECTION 3.8 Covenants as to CNBF Capital Trust I
In the event Securities are issued to the Trust or a trustee of such
Trust in connection with the issuance of Trust Securities by the Trust, for so
long as such Trust Securities remain outstanding, the Corporation (i) will
maintain 100% direct or indirect ownership of the Common Securities of the
Trust; provided, however, that any successor of the Corporation, permitted
pursuant to Article X, may succeed to the Corporation's ownership of such
Common Securities, and (ii) will use commercially reasonable efforts to cause
the Trust (a) to remain a business trust, except in connection with a
distribution of Securities to the holders of Trust Securities in liquidation of
the Trust, the redemption of all of the Trust Securities of the Trust, or
certain mergers, consolidations or amalgamations, each as permitted by the
Trust Agreement, and (b) to otherwise continue to be classified as a grantor
trust and not an association taxable as a corporation for United States federal
income tax purposes.
SECTION 3.9 Payment of Expenses.
Since the Trust is being formed solely to facilitate an investment in
the Capital Securities, the Corporation, as Holder of the Common Securities,
hereby covenants to pay all debts and obligations (other than with respect to
the Capital Securities and the Common Securities) and all reasonable costs and
expenses of the Trust (including without limitation all costs and expenses
relating to the organization of the Trust, the fees and expenses of the
trustees and all reasonable costs and expenses relating to the operation of the
Trust) and to pay any and all taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed on the Trust
by the United States, or any taxing authority, so that the net amounts received
and retained by the Trust and the Property Trustee after paying such expenses
will be equal to the amounts the Trust and the Property Trustee would have
received had no such costs or expenses been incurred by or imposed on the
Trust, The foregoing obligations of the Corporation are for the benefit of, and
shall be enforceable by, any Person to whom any such debts, obligations, costs,
expenses and taxes are owed (each, a "Creditor") whether or not such Creditor
has received notice thereof Any each Creditor may enforce such obligations
directly against the Corporation, and the Corporation irrevocably waives any
right or remedy to require that any such Creditor take any action against the
Trust or any other person before proceeding against the Corporation. The
Corporation shall execute such additional agreements as may be necessary or
desirable to give full effect to the foregoing.
SECTION 3.10 Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of
the Debenture Trustee, unless otherwise stated, the Corporation shall pay to
the Debenture Trustee all amounts accrued and owing to the Debenture Trustee to
the date of such termination, removal or resignation.
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ARTICLE IV
LIST OF SECURITYHOLDERS AND REPORTS BY THE
CORPORATION AND THE DEBENTURE TRUSTEE
SECTION 4.1 List of Securityholders.
The Corporation covenants and agrees that it will furnish or cause to
be furnished to the Debenture Trustee:
(a) not less than one day nor more than 15 days prior to every
Interest Payment Date, a list, in such form as the Debenture
Trustee may reasonably require, of the names and addresses of
the Securityholders as of such dates; and
(b) at such other times as the Debenture Trustee may request in
writing, within 30 days after the receipt by the Corporation,
of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is
furnished,
except that, no such lists or names and addresses need be furnished so long as
the Debenture Trustee is in possession thereof by reason of its acting as
security registrar for the Securities.
SECTION 4.2 Preservation and Disclosure of Lists.
(a) The Debenture Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of the
holders of the Securities (1) contained in the most recent list furnished to it
as provided in Section 4.1 or (2) received by it in the capacity of security
registrar (if so acting) hereunder. The Debenture Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) The rights of holders of Securities to communicate with other
holders with respect to their rights under this Indenture or the Securities and
the corresponding rights and privileges of the Debenture Trustee, shall be as
provided in the Trust Indenture Act.
(c) Each and every holder of Securities, by receiving and holding
the same, agrees with the Corporation and the Debenture Trustee that neither
the Corporation nor the Debenture Trustee nor an agent of either of them nor
any paying agent shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the holders of Securities
made pursuant to the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Debenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
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SECTION 4.3 Reports by the Corporation.
(a) The Corporation shall file or cause to be filed with the
Debenture Trustee and with the Commission, and transmit to holders of
Securities, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided in the Trust Indenture Act. In the case of
information, documents or reports required to be filed with the Commission
pursuant to Section 13(a) or Section 15(d) of the Exchange Act, the Corporation
shall file or cause the filing of such information documents or reports with
the Debenture Trustee within 15 days after the same are required to be filed
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as said Commission may from time to time by rules and regulations prescribe)
which the Corporation may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Corporation is not
required to file information, documents or reports pursuant to either of such
sections, then to provide to the Debenture Trustee, such of the supplementary
and periodic information, documents and reports which would have been required
pursuant to Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations.
(b) The Corporation covenants and agrees to file with the
Debenture Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the
Corporation with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and regulations.
(c) The Corporation covenants and agrees to transmit by mail to
all holders of Securities, as the names and addresses of such holders appear
upon the Security Register, within 30 days after the filing thereof with the
Debenture Trustee, such summaries of any information, documents and reports
required to be filed by the Corporation pursuant to subsections (a) and (b) of
this Section 4.3 as may be required by rules and regulations prescribed from
time to time by the Commission.
(d) Delivery of such reports, information and documents to the
Debenture Trustee is for informational purposes only and the Debenture
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Corporation's compliance with any of its covenants
hereunder (as to which the Debenture Trustee is entitled to rely exclusively on
Officers' Certificates).
(e) So long as is required for an offer or sale of the Securities
to qualify for an exemption under Rule 144A under the Securities Act, the
Corporation shall, upon request, provide the information required by clause
(d)(4) thereunder to each Securityholder and to each beneficial owner and
prospective purchaser of Securities identified by each Securityholder of
Restricted Securities, unless such information is furnished to the Commission
pursuant to Section 13 or l5(d) of the Exchange Act.
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SECTION 4.4 Reports by the Debenture Trustee.
(a) The Debenture Trustee shall transmit to Securityholders such
reports concerning the Debenture Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. Reports so required to be transmitted at
stated intervals of not more than 12 months shall be transmitted within 60 days
of January 31 in each calendar year, commencing with the January 31 after the
first issuance of Securities under this Indenture.
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Debenture Trustee with each
stock exchange, if any, upon which the Securities are listed, with the
Commission and with the Corporation. The Corporation will promptly notify the
Debenture Trustee when the Securities are listed on any stock exchange.
(c) The Paying Agent shall comply with all withholding, backup
withholding, tax and information reporting requirements under the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations issued
thereunder with respect to payments on, or with respect to, the Securities.
ARTICLE V
REMEDIES OF THE DEBENTURE TRUSTEE AND
SECURITYHOLDERS UPON EVENT OF DEFAULT
SECTION 5.1 Events of Default.
One or more of the following events of default shall constitute an
Event of Default hereunder (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest (including Compounded
Interest and Additional Sums, if any) or Liquidated Damages,
if any, on the Securities (about which a Responsible Officer
of the Debenture Trustee has actual knowledge) when due, and
continuance of such default for a period of 30 days; provided,
however, that a valid extension of an interest payment period
by the Corporation in accordance with the terms hereof or
thereof shall not constitute a default in the payment of
interest for this purpose; or
(b) default in the payment of any principal of the Securities
(about which a Responsible Officer of the Debenture Trustee
has actual knowledge) when due, whether at maturity, upon
prepayment, by declaration of acceleration of maturity or
otherwise; or
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(c) default in the performance, or breach in any material respect,
of any covenant or warranty of the Corporation in this
Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Corporation by the
Debenture Trustee or to the Corporation and the Debenture
Trustee by the holders of at least 25% in aggregate principal
amount of the outstanding Securities a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(d) the occurrence of the appointment of a receiver or other
similar official in any liquidation, insolvency or similar
proceeding with respect to the Corporation or all or
substantially all of its property; or a court or other
governmental agency shall enter a decree or order appointing a
receiver or similar official and such decree or order shall
remain unstayed and undischarged for a period of 90 days; or
(e) the Corporation shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Corporation or
of any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing, then in every such case the Debenture
Trustee or the holders of not less than 25% in aggregate principal amount of
the Securities then outstanding may declare the principal amount of all
Securities to be due and payable immediately, by a notice in writing to the
Corporation (and to the Debenture Trustee if given by the holders of the
outstanding Securities), and upon any such declaration the same shall become
immediately due and payable. Payment of principal and interest on such
Securities shall remain subordinated to the extent provided in Article XV
notwithstanding that such amount shall become immediately due and payable as
herein provided.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Securities shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, (i)
the Corporation shall pay or shall deposit with the Debenture Trustee a sum
sufficient to pay (A) all matured installments of interest (including
Compounded Interest, Additional Sums, if any) and Liquidated Damages, on all
the Securities and the principal of any and all Securities which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under
applicable law, on overdue
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installments of interest, at the same rate as the rate of interest specified in
the Securities to the date of such payment or deposit) and (B) such amount as
shall be sufficient to cover the reasonable compensation and expenses due to
the Debenture Trustee and each predecessor Debenture Trustee, their respective
agents and counsel, pursuant to Section 6.6, and (ii) any and all Events of
Default under the Indenture, other than the non-payment of the principal of the
Securities which shall have become due solely by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then, in every such case, the holders of a majority in aggregate
principal amount of the Securities then outstanding, by written notice to the
Corporation and to the Debenture Trustee, may rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon. If the holders of the Securities fail to
annul such declaration and waive such default, the holders of a majority in
aggregate liquidation amount (as defined in the related Trust Agreement) of the
related Series of Capital Securities issued by the Trust then outstanding shall
also have the right to rescind and annul such declaration and its consequences
by written notice to the Corporation and the Debenture Trustee, subject to the
conditions set forth in this and the preceding paragraph.
In case the Debenture Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Debenture Trustee, then and in
every such case the Corporation, the Debenture Trustee and the holders of the
Securities shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Corporation, the
Debenture Trustee and the holders of the Securities shall continue as though no
such proceeding had been taken.
SECTION 5.2 Payment of Securities on Default; Suit Therefor.
The Corporation covenants that (a) in case default shall be made in
the payment of any installment of interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on any of the
Securities as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of the principal of any of the Securities as and when the
same shall have become due and payable, whether at maturity of the Securities
or upon prepayment or by declaration or otherwise, then, upon demand of the
Debenture Trustee, the Corporation will pay to the Debenture Trustee, for the
benefit of the holders of the Securities, the whole amount that then shall have
become due and payable on all such Securities for principal or interest
(including Compounded Interest and Additional Sums, if any) and Liquidated
Damages, if any, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law and, if the Securities are held by the Trust or a trustee of
such Trust, without duplication of any other amounts paid by the Trust or a
trustee in respect thereof) upon the overdue installments of interest
(including Compounded Interest and Additional Sums, if any) and Liquidated
Damages, if any, at the rate borne by the Securities; and, in addition thereto,
such further amount as shall be
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sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Debenture Trustee, its agents and counsel, and any other
amount due to the Debenture Trustee pursuant to Section 6.6.
In case the Corporation shall fail forthwith to pay such amounts upon
such demand, the Debenture Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute judicial
proceedings for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Corporation or any other obligor on
the Securities and collect in the manner provided by law out of the property of
the Corporation or any other obligor on the Securities, wherever situated, the
moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Corporation or any other obligor on the Securities
under Title 11, United States Code, or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the
Corporation or such other obligor, or in the case of any other similar judicial
proceedings relative to the Corporation or other obligor upon the Securities,
or to the creditors or property of the Corporation or such other obligor, the
Debenture Trustee, irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Debenture Trustee shall have made any
demand pursuant to the provisions of this Section 5.2, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove
a claim or claims for the whole amount of principal and interest owing and
unpaid in respect of the Securities and, in case of any judicial proceedings,
to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Debenture Trustee (including
any claim for amounts due to the Debenture Trustee pursuant to Section 6.6) and
of the Securityholders allowed in such judicial proceedings relative to the
Corporation or any other obligor on the Securities, or to the creditors or
property of the Corporation or such other obligor, unless prohibited by
applicable law and regulations, to vote on behalf of the holders of the
Securities in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and to collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Securityholders to make such payments to
the Debenture Trustee, and, in the event that the Debenture Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Debenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to, and expenses of, the Debenture Trustee, each
predecessor Debenture Trustee and their respective agents and counsel, and all
other amounts due to the Debenture Trustee pursuant to Section 6.6.
Nothing herein contained shall be construed to authorize the Debenture
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the
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rights of any holder thereof or to authorize the Debenture Trustee to vote in
respect of the claim of any Securityholder in any such proceeding; provided,
however, that the Trustee may, on behalf of the holders of Securities, vote for
the election of a trustee in bankruptcy or similar official and be a member of
a creditor's or other similar committee.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Debenture Trustee without
the possession of any of the Securities, or the production thereof on any trial
or other proceeding relative thereto, and any such suit or proceeding
instituted by the Debenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall be for the ratable
benefit of the holders of the Securities.
In any proceedings brought by the Debenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Debenture Trustee shall be a party), the Debenture Trustee shall be
held to represent all the holders of the Securities, and it shall not be
necessary to make any holders of the Securities parties to any such
proceedings.
SECTION 5.3 Application of Moneys Collected by Debenture Trustee.
Any moneys collected by the Debenture Trustee shall be applied in the
following order, at the date or dates fixed by the Debenture Trustee for the
distribution of such moneys, upon presentation of the Securities in respect of
which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable
to the Securities and all other amounts due to the Debenture Trustee under
Section 6.6;
Second: To the payment of all Senior Indebtedness of the Corporation
if and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon
Securities for principal of and interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on the Securities, in
respect of which or for the benefit of which money has been collected, ratably,
without preference of priority of any kind, according to the amounts due on
such Securities for principal and interest, respectively; and
Fourth: To the Corporation.
SECTION 5.4 Proceedings by Securityholders.
No holder of any Security shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless: such holder previously shall have given to the Debenture
Trustee written notice of an Event of Default and of the
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continuance thereof with respect to the Securities specifying such Event of
Default, as hereinbefore provided the holders of not less than 25% in aggregate
principal amount of the Securities then outstanding shall have made written
request upon the Debenture Trustee to institute such action, suit or proceeding
in its own name as Debenture Trustee hereunder; such holder or holders have
offered to the Debenture Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby;
the Debenture Trustee for 60 days after its receipt of such notice, request and
offer of indemnity shall have failed to institute any such action, suit or
proceeding; and no direction inconsistent with such written request has been
given to the Debenture Trustee during such 60-day period by the holders of a
majority in aggregate principal amount of the outstanding Securities;
it being understood and intended, and being expressly covenanted by the taker
and holder of every Security with every other taker and holder and the
Debenture Trustee, that no one or more holders of Securities shall have any
right in any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other holder
of Securities, or to obtain or seek to obtain priority over or preference to
any other such holder, or to enforce any right under this Indenture, except in
the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities.
The Corporation and the Debenture Trustee acknowledge that pursuant to
the Trust Agreement, the holders of Capital Securities are entitled, in the
circumstances and subject to the limitations set forth therein, to commence a
Direct Action with respect to any Event of Default referred to in clause (a) or
(b) of Section 5.1.
SECTION 5.5 Proceedings by Debenture Trustee.
In case an Event of Default occurs with respect to Securities and is
continuing, the Debenture Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Debenture Trustee shall deem most effectual to protect and
enforce any of such rights, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other proper remedy.
SECTION 5.6 Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Debenture
Trustee or to the Securityholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and remedies available
to the Debenture Trustee or the holders of the Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to the Securities, and no delay or omission of the Debenture
Trustee or of any holder of any of the Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver of
any such default or an
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acquiescence therein; and, subject to the provisions of Section 5.4, every
power and remedy given by this Article V or by law to the Debenture Trustee or
to the Securityholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Debenture Trustee or by the Securityholders.
SECTION 5.7 Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee; provided, however, that (subject to the provisions of Section 6.1) the
Debenture Trustee shall have the right to decline to follow any such direction
if the Debenture Trustee shall determine that the action so directed would be
unjustly prejudicial to the holders not taking part in such direction or if the
Debenture Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Debenture Trustee in
good faith by one of its Responsible Officers shall determine that the action
or proceedings so directed would involve the Debenture Trustee in personal
liability. The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may on behalf of the holders of all of the
Securities waive any past Default or Event of Default and its consequences
except a Default (a) in the payment of principal of or interest on (including
Compounded Interest and Additional Sums, if any) or Liquidated Damages, if any,
on any of the Securities (unless such default has been cured and a sum
sufficient to pay all matured installments of interest (including Compounded
Interest and Additional Sums, if any) and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or (b) in respect
of covenants or provisions hereof which cannot be modified or amended without
the consent of the holder of each Security affected; provided, however, that if
the Securities are held by the Property Trustee, such waiver or modification to
such waiver shall not be effective until the holders of a majority in aggregate
liquidation amount of Trust Securities shall have consented to such waiver or
modification to such waiver; provided, further, that if the consent of the
holder of each outstanding Security is required, such waiver shall not be
effective until each holder of the Trust Securities shall have consented to
such waiver. Upon any such waiver, the Default covered thereby shall be deemed
to be cured for all purposes of this Indenture and the Corporation, the
Debenture Trustee and the holders of the Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon. Whenever any Default or Event of Default hereunder shall have been
waived as permitted by this Section 5.7, said Default or Event of Default shall
for all purposes of the Securities and this Indenture be deemed to have been
cured and to be not continuing.
SECTION 5.8 Notice of Defaults
(a) The Debenture Trustee shall, within 90 days after the
occurrence of a Default with respect to the Securities actually known to a
Responsible Officer of the Debenture Trustee, mail to all Securityholders, as
the names and addresses of such
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holders appear upon the Security Register, notice of all such Defaults, unless
such Default shall have been cured or waived before the giving of such notice
(the term "Default" for the purpose of this Section 5.8 being hereby defined to
be any of the events specified in clauses (a), (b), (c), (d) and (e) of Section
5.1, not including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in clause (c) of Section
5.1); provided, however, that, except in the case of Default in the payment of
the principal of or interest (including Compounded Interest or Additional Sums,
if any) or Liquidated Damages, if any, on any of the Securities, the Debenture
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Debenture Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders;
provided, further, that in the case of any Default of the character specified
in Section 5.1(c), no such notice to Securityholders shall be given until at
least 60 days after the occurrence thereof, but shall be given within 90 days
after such occurrence.
(b) Within ten Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Debenture Trustee, the
Debenture Trustee shall transmit notice of such Event of Default to all
Securityholders as their names and addresses appear on the Security Register,
unless such Event of Default shall have been cured or waived.
SECTION 5.9 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Security
by its acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Debenture Trustee for any
action taken or omitted by it as Debenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 5.9 shall not apply to any
suit instituted by the Debenture Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in aggregate principal amount of the Securities outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest (including Compounded Interest and Additional Sums, if
any) or Liquidated Damages, if any, on any Security against the Corporation on
or after the same shall have become due and payable.
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ARTICLE VI
CONCERNING THE DEBENTURE TRUSTEE
SECTION 6.1 Duties and Responsibilities of Debenture Trustee.
With respect to the holders of the Securities issued hereunder, the
Debenture Trustee, prior to the occurrence of an Event of Default (which, other
than in the case of Sections 5.1(a) and 5.1(b) hereof, is known to the
Debenture Trustee) and after the curing or waiving of all such Events of
Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an Event
of Default (which, other than in the case of Sections 5.1(a) and 5.1(b) hereof,
is known to the Debenture Trustee) has occurred (which has not been cured or
waived), the Debenture Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Debenture Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default (which, other
than in the case of Sections 5.1(a) and 5.1(b) hereof, is
known to the Debenture Trustee) and after the curing or
waiving of all such Events of Default which may have occurred,
(1) the duties and obligations of the Debenture Trustee
shall be determined solely by the express provisions
of this Indenture, and the Debenture Trustee shall
not be liable except for the performance of such
duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against
the Debenture Trustee;
(2) in the absence of bad faith on the part of the
Debenture Trustee, the Debenture Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Debenture Trustee and conforming to the
requirements of this Indenture; but, in the case of
any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Debenture Trustee, the Debenture
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Indenture;
(b) the Debenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer or Responsible Officers, unless it shall be
proved that the Debenture Trustee was negligent in
ascertaining the pertinent facts; and
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(c) the Debenture Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of
the Securityholders pursuant to Section 5.7, relating
to the time, method and place of conducting any
proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred
upon the Debenture Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Debenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if it reasonably believes that the repayment of
such funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to
it.
SECTION 6.2 Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.1:
(a) the Debenture Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, debenture
or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein may be sufficiently evidenced by a Company
Request or Company Order (unless other evidence in respect
thereof be herein specifically prescribed); and any Board
Resolution may be evidenced to the Debenture Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary
of the Corporation;
(c) the Debenture Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the Debenture Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at
the request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Debenture Trustee
reasonable and sufficient security or indemnity against the
costs, expenses and liabilities which may be incurred therein
or thereby;
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(e) the Debenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
debenture, coupon or other paper or document, unless requested
in writing to do so by the holders of a majority in aggregate
principal amount of the outstanding Securities; provided,
however, that if the payment within a reasonable time to the
Debenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is,
in the opinion of the Debenture Trustee, not reasonably
assured to the Debenture Trustee by the security afforded to
it by the terms of this Indenture, the Debenture Trustee may
require reasonable indemnity against such expense or liability
as a condition to so proceeding;
(f) the Debenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents (including any Authenticating Agent) or
attorneys, and the Debenture Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent
or attorney appointed by it with due care; and
(g) the Debenture Trustee shall not be charged with knowledge of
any Default or Event of Default unless (1) such Default or
Event of Default falls within Section 5.01(a) (other than a
default with respect to the payment of Compounded Interest,
Liquidated Damages or Additional Sums) or Section 5.01(b) of
the Indenture, (2) a Responsible Officer shall have actual
knowledge of such Default or Event of Default or (3) written
notice of such Default or Event of Default shall have been
given to the Debenture Trustee by the Corporation or any other
obligor on the Securities or by any holder of the Securities.
(h) The Debenture Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith, without
negligence or willful misconduct and believed by it to be
authorized or within the discretion of rights or powers
conferred upon it by this Indenture.
SECTION 6.3 No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Debenture Trustee or the Authenticating
Agent) shall be taken as the statements of the Corporation, and the Debenture
Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Debenture Trustee and the Authenticating Agent
make no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Debenture Trustee and the Authenticating Agent shall
not be accountable for the use or application by the Corporation of any
Securities or the proceeds of any Securities authenticated and delivered by the
Debenture Trustee or the Authenticating Agent in conformity with the provisions
of this Indenture.
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SECTION 6.4 Debenture Trustee, Authenticating Agent, Paying
Agents, Transfer Agents and Registrar May Own Securities.
The Debenture Trustee or any Authenticating Agent or any paying agent
or any transfer agent or any security registrar for the Securities, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Debenture Trustee,
Authenticating Agent, paying agent, transfer agent or security registrar for
the Securities.
SECTION 6.5 Moneys to be Held in Trust.
Subject to the provisions of Section 11.4, all moneys received by the
Debenture Trustee or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Debenture Trustee and any paying agent shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Corporation. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time upon the written order of the Corporation, signed by an
Officer thereof.
SECTION 6.6 Compensation and Expenses of Debenture Trustee.
The Corporation, as issuer of Securities under this Indenture,
covenants and agrees to pay to the Debenture Trustee from time to time, and the
Debenture Trustee shall be entitled to, such reasonable compensation as shall
be agreed to in writing between the Corporation and the Debenture Trustee
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Corporation will pay or
reimburse the Debenture Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Debenture Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, bad faith or willful misconduct. The
Corporation also covenants to indemnify each of the Debenture Trustee and any
predecessor Debenture Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense
including taxes (other than taxes based on the income of the Debenture Trustee)
incurred without negligence, bad faith or willful misconduct, arising out of or
in connection with the acceptance or administration of this trust, including
the reasonable costs and expenses of defending itself against any claim of
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligations of the Corporation under this Section 6.6
to compensate and indemnify the Debenture Trustee and to pay or reimburse the
Debenture Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder.
When the Debenture Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(d) or Section
5.1(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for
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its services are intended to constitute expenses of administration under the
Bankruptcy Reform Act of 1978 or any successor.
The provisions of this Section shall survive the resignation or
removal of the Debenture Trustee and the defeasance or other termination of
this Indenture.
SECTION 6.7 Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.1 and 6.2, whenever in the
administration of the provisions of this Indenture the Debenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence in respect thereof is herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Debenture Trustee, rely
upon an Officers' Certificate.
SECTION 6.8 Conflicting Interest of Debenture Trustee.
If the Debenture Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Debenture Trustee and the Corporation shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 6.9 Eligibility of Debenture Trustee.
The Debenture Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia, or a corporation
or other Person permitted to act as trustee by the Commission authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000) and subject to
supervision or examination by federal, state, territorial, or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 6.9
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
The Corporation may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Corporation, serve
as Debenture Trustee.
In case at any time the Debenture Trustee shall cease to be eligible
in accordance with the provisions of this Section 6.9, the Debenture Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
SECTION 6.10 Resignation or Removal of Debenture Trustee.
(a) The Debenture Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice of such resignation
to the Corporation and by
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mailing notice thereof to the holders of the Securities at their addresses as
they shall appear on the Security Register. Upon receiving such notice of
resignation, the Corporation shall promptly appoint a successor trustee or
trustees by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Debenture Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 60 days after the mailing of such notice of
resignation to the affected Securityholders, the resigning Debenture Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide holder of a
Security for at least six months may, subject to the provisions of Section 5.9,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Debenture Trustee shall fail to comply with the
provisions of Section 6.8 after written request
therefor by the Corporation or by any Securityholder
who has been a bona fide holder of a Security or
Securities for at least six months, or
(2) the Debenture Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and
shall fail to resign after written request therefor
by the Corporation or by any such Securityholder, or
(3) the Debenture Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Debenture Trustee or of its
property shall be appointed, or any public officer
shall take charge or control of the Debenture Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Corporation may remove the Debenture Trustee and
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Debenture Trustee so removed and one
copy to the successor trustee, or, subject to the provisions of Section 5.9,
any Securityholder who has been a bona fide holder of a Security for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Debenture
Trustee and the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Debenture Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Debenture Trustee
and nominate a successor trustee, which shall be deemed appointed as successor
trustee unless within 10
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days after written notification of such nomination the Corporation objects
thereto, or if no successor trustee shall have been so appointed and shall have
accepted appointment within 30 days after such removal, in which case the
Debenture Trustee so removed or any Securityholder, upon the terms and
conditions and otherwise as in subsection (a) of this Section 6.10 provided,
may petition any court of competent jurisdiction for an appointment of a
successor trustee.
(d) Any resignation or removal of the Debenture Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section 6.10 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance by Successor Debenture Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Corporation and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Corporation or of the successor
trustee, the trustee ceasing to act shall, upon payment of all amounts then due
it pursuant to the provisions of Section 6.6, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Corporation shall execute any and
all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 6.6.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Corporation shall mail notice of the succession of such
trustee hereunder to the holders of Securities at their addresses as they shall
appear on the Security Register. If the Corporation fails to mail such notice
within 10 days after the acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of
the Corporation.
SECTION 6.12 Succession by Merger, etc.
Any corporation into which the Debenture Trustee may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Debenture Trustee shall be a party, or any
corporation succeeding to all or
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substantially all of the corporate trust business of the Debenture Trustee,
shall be the successor of the Debenture Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
In case any Securities shall have been authenticated but not delivered
at the time such successor to the Debenture Trustee shall succeed to the trusts
created by this Indenture, any such successor to the Debenture Trustee may
adopt the certificate of authentication of any predecessor trustee, and deliver
such Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Debenture
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which the Securities or this Indenture
elsewhere provides that the certificate of the Debenture Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Debenture Trustee or authenticate Securities in the name of any
predecessor Debenture Trustee shall apply only to its successor or successors
by merger or consolidation.
SECTION 6.13 Limitation on Rights of Debenture Trustee as a
Creditor.
The Debenture Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Debenture Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.
SECTION 6.14 Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Debenture Trustee upon the request of the Corporation with power to act on its
behalf and subject to its direction in the authentication and delivery of
Securities issued upon exchange or transfer thereof as fully to all intents and
purposes as though any such Authenticating Agent had been expressly authorized
to authenticate and deliver Securities; provided, however, that the Debenture
Trustee shall have no liability to the Corporation for any acts or omissions of
the Authenticating Agent with respect to the authentication and delivery of
Securities. Any such Authenticating Agent shall be acceptable to the
Corporation and shall at all times be a corporation organized and doing
business under the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and being subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 6.14 the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect herein specified in this Section.
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Any corporation into which any Authenticating Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of such Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section 6.14 without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Debenture Trustee and to the Corporation. The
Debenture Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
to the Corporation. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.14, the Debenture Trustee may, and upon the
request of the Corporation shall, promptly appoint a successor Authenticating
Agent acceptable to the Corporation and eligible under this Section 6.14, shall
give written notice of such appointment to the Corporation and shall mail
notice of such appointment to all Securityholders as the names and addresses of
such holders appear on the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent herein.
The Corporation, as issuer of the Securities, agrees to pay to any
Authenticating Agent from time to time reasonable compensation for its
services.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Debenture Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated: Wilmington Trust Company,
as Trustee
By:
----------------------------------------
As Authenticating Agent
By:
----------------------------------------
As Authenticating Agent
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ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action the holders of such specified percentage
have joined therein may be evidenced (a) by any instrument (including by way of
electronic transmission) or any number of instruments of similar tenor executed
by such Securityholders in person or by agent or proxy appointed in writing, or
(b) by the record of such holders of Securities voting in favor thereof at any
meeting of such Securityholders duly called and held in accordance with the
provisions of Article VIII, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Securityholders.
If the Corporation shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Corporation may, at its option, as evidenced by an Officers' Certificate, fix
in advance a record date for the determination of Securityholders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or
other action, but the Corporation shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action may be given before or after the record date,
but only the Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of determining
whether Securityholders of the requisite proportion of outstanding Securities
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the
outstanding Securities shall be computed as of the record date.
SECTION 7.2 Proof of Execution by Securityholders.
Subject to the provisions of Sections 6.1, 6.2 and 8.5, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Debenture Trustee or in such manner as shall be
satisfactory to the Debenture Trustee. The ownership of Securities shall be
proved by the Security Register. The Debenture Trustee may require such
additional proof of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.6.
SECTION 7.3 Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security,
the Corporation, the Debenture Trustee, any Authenticating Agent, any
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paying agent, any transfer agent and any security registrar for the Securities
may deem the person in whose name such Security shall be registered upon the
Security Register to be, and may treat him as, the absolute owner of such
Security (whether or not such Security shall be overdue) for the purpose of
receiving payment of or on account of the principal of and (subject to Section
2.6) interest on such Security and for all other purposes; and neither the
Corporation nor the Debenture Trustee nor any Authenticating Agent nor any
paying agent nor any transfer agent nor any security registrar for the
Securities shall be affected by any notice to the contrary. All such payments
so made to any holder for the time being or upon his order shall be valid and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for moneys payable upon any such Security.
SECTION 7.4 Securities Owned by Corporation Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities that are owned by the Corporation or
any other obligor on the Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Corporation or any other obligor on the Securities shall be disregarded and
deemed not to be outstanding for the purpose of any such determination;
provided, however, that for the purposes of determining whether the Debenture
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities which a Responsible Officer of the Debenture Trustee actually
knows are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as outstanding for the purposes of
this Section 7.4 if the pledgee shall establish to the satisfaction of the
Debenture Trustee the pledgee's right to vote such Securities and that the
pledgee is not the Corporation or any such other obligor or Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Corporation or any such other obligor. In the case of a
dispute as to such right, any decision by the Debenture Trustee taken upon the
advice of counsel shall be full protection to the Debenture Trustee.
SECTION 7.5 Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Debenture
Trustee, as provided in Section 7.1, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Securities specified in
this Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor),
subject to Section 7.1, the serial number of which is shown by the evidence to
be included in the group of Securities the holders of which have consented to
such action, may, by filing written notice with the Debenture Trustee at its
principal office and upon proof of holding as provided in Section 7.2, revoke
such action so far as concerns such Security (or so far as concerns the
principal amount represented by any exchanged or substituted Security). Except
as aforesaid, any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Security or any Security issued in exchange or substitution therefor.
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ARTICLE VIII
MEETINGS OF SECURITYHOLDERS
SECTION 8.1 Purposes of Meetings.
A meeting of Securityholders may be called at any time and from time
to time pursuant to the provisions of this Article VIII for any of the
following purposes:
(a) to give any notice to the Corporation or to the Debenture
Trustee, or to give any directions to the Debenture Trustee,
or to consent to the waiving of any Default hereunder and its
consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of
Article V;
(b) to remove the Debenture Trustee and nominate a successor
trustee pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.2;
or
(d) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal
amount of such Securities under any other provision of this
Indenture or under applicable law.
SECTION 8.2 Call of Meetings by Debenture Trustee.
The Debenture Trustee may at any time call a meeting of
Securityholders to take any action specified in Section 8.1, to be held at such
time and at such place in Canajoharie or New York, New York or Livingston, New
Jersey as the Debenture Trustee shall determine. Notice of every meeting of
the Securityholders, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
mailed to holders of Securities at their addresses as they shall appear on the
Security Register. Such notice shall be mailed not less than 20 nor more than
180 days prior to the date fixed for the meeting.
SECTION 8.3 Call of Meetings by Corporation or Securityholders.
In case at any time the Corporation, pursuant to a resolution of the
Board of Directors, or the holders of at least 10% in aggregate principal
amount of the Securities then outstanding, shall have requested the Debenture
Trustee to call a meeting of Securityholders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Debenture Trustee shall not have mailed the notice of such meeting within 20
days after receipt of such request, then the Corporation or such
Securityholders may determine the time and the place in Canajoharie or New
York, New York or Livingston, New Jersey for such meeting and may call such
meeting to take any action authorized in Section 8.1, by mailing notice thereof
as provided in Section 8.2.
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SECTION 8.4 Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders, a Person
shall be (a) a holder of one or more Securities or (b) a Person appointed by an
instrument in writing as proxy by a holder of one or more Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Debenture Trustee and its counsel and
any representatives of the Corporation and its counsel.
SECTION 8.5 Regulations.
Notwithstanding any other provisions of this Indenture, the Debenture
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Debenture Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Corporation or by Securityholders as provided in Section 8.3, in which case
the Corporation or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 8.4, at any meeting each holder
of Securities or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other
than by virtue of Securities held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other Securityholders.
Any meeting of Securityholders duly called pursuant to the provisions of
Section 8.2 or 8.3 may be adjourned from time to time by a majority of those
present, and the meeting may be held as so adjourned without further notice.
SECTION 8.6 Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of
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votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.2. The record
shall show the serial numbers of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Corporation and the other to the Debenture Trustee to
be preserved by the Debenture Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated. The holders of the Initial
Securities and the Exchange Securities shall vote for all purposes as a single
class.
ARTICLE IX
AMENDMENTS
SECTION 9.1 Without Consent of Securityholders.
Without the consent of any Securityholders, the Corporation, and the
Debenture Trustee, at any time and from time to time, may amend or waive any
provision of this Indenture or may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(a) to evidence the succession of another Person to the
Corporation, or successive successions, and the assumption by
the successor Person of the covenants, agreements and
obligations of the Corporation pursuant to Article X hereof;
(b) to add to the covenants of the Corporation such further
covenants, restrictions or conditions for the protection of
the Securityholders as the Board of Directors and the
Debenture Trustee shall consider to be for the protection of
the Securityholders, and to make the occurrence, or the
occurrence and continuance, of a default in any of such
additional covenants, restrictions or conditions a Default or
an Event of Default permitting the enforcement of all or any
of the remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such
additional covenant, restriction or condition such amendment
may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies
available to the Debenture Trustee upon such default;
(c) to provide for the issuance under this Indenture of Securities
in coupon form (including Securities registrable as to
principal only) and to provide for exchangeability of such
Securities with the Securities issued hereunder in fully
registered form and to make all appropriate changes for such
purpose;
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(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture;
or to make such other provisions in regard to matters or
questions arising under this Indenture, provided that any such
action shall not materially adversely affect the interests of
the holders of the Securities;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the
Securities;
(f) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities
legends, if any, to be placed on Securities, and all other
matters required pursuant to Section 2.7 or otherwise
necessary, desirable or appropriate in connection with the
issuance of Securities to holders of Capital Securities in the
event of a distribution of Securities by the Trust following a
Dissolution Event, provided that any such action shall not
materially adversely affect the interests of the holders of
the Securities;
(g) to qualify or maintain qualification of this Indenture under
the Trust Indenture Act;
(h) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or
(i) to convey, transfer, assign, mortgage or pledge any property
to or with the Debenture Trustee or to surrender any right or
power herein conferred upon the Corporation;
The Debenture Trustee is hereby authorized to join with the
Corporation in the execution of any supplemental indenture to effect such
amendment, to make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer and assignment
of any property thereunder, but the Debenture Trustee shall not be obligated
to, but may in its discretion, enter into any such supplemental indenture which
affects the Debenture Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any amendment to this Indenture authorized by the provisions of this
Section 9.1 may be executed by the Corporation and the Debenture Trustee
without the consent of the holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of Section 9.2.
SECTION 9.2 With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.1) of the holders
of a majority in aggregate principal amount of the Securities at the time
outstanding, the
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Corporation, when authorized by a Board Resolution, and the Debenture Trustee
may from time to time and at any time amend this Indenture for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
holders of the Securities; provided, however, that no such amendment shall,
without the consent of the holders of each Security then outstanding and
affected thereby (i) change the Maturity Date of any Security, or reduce the
rate or extend the time of payment of interest thereon (except as contemplated
by Article XVI), or reduce the principal amount thereof, or change any
prepayment provisions, or make the principal thereof or any interest thereon
payable in any coin or currency other than U.S. dollars, or impair or affect
the right of any Securityholder to institute suit for payment thereof, or (ii)
reduce the aforesaid percentage of Securities, the holders of which are
required to consent to any such amendment to the Indenture; provided, however,
that if the Securities are held by the Trust, such amendment shall not be
effective until the holders of a majority in liquidation amount of Trust
Securities shall have consented to such amendment; provided, further, that if
the consent of the holder of each outstanding Security is required, such
amendment shall not be effective until each holder of the Trust Securities
shall have consented to such amendment.
Upon the request of the Corporation accompanied by a copy of a
resolution of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture effecting
such amendment, and upon the filing with the Debenture Trustee of evidence of
the consent of Securityholders as aforesaid, the Debenture Trustee shall join
with the Corporation in the execution of such supplemental indenture unless
such supplemental indenture affects the Debenture Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Debenture
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
Promptly after the execution by the Corporation and the Debenture
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Debenture Trustee shall transmit by mail, first class postage
prepaid, a notice, prepared by the Corporation, setting forth in general terms
the substance of such supplemental indenture, to the Securityholders as their
names and addresses appear upon the Security Register. Any failure of the
Debenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.3 Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be modified
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and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the
Debenture Trustee, the Corporation and the holders of Securities shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.4 Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article IX may bear a
notation in form approved by the Debenture Trustee as to any matter provided
for in such supplemental indenture. If the Corporation or the Debenture
Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Debenture Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Corporation, authenticated by the Debenture
Trustee or the Authenticating Agent and delivered in exchange for the
Securities then outstanding.
SECTION 9.5 Evidence of Compliance of Supplemental Indenture to
be Furnished to Debenture Trustee.
The Debenture Trustee, subject to the provisions of Sections 6.1 and
6.2, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER AND LEASE
SECTION 10.1 Corporation May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation with or into any other
Person (whether or not affiliated with the Corporation, as the case may be), or
successive consolidations or mergers in which the Corporation or its successor
or successors, as the case may be, shall be a party or parties, or shall
prevent any sale, conveyance, transfer or lease of the property of the
Corporation, or its successor or successors as the case may be, as an entirety,
or substantially as an entirety, to any other Person (whether or not affiliated
with the Corporation, or its successor or successors, as the case may be)
authorized to acquire and operate the same, provided that (a) the Corporation
is the surviving Person, or the Person formed by or surviving any such
consolidation or merger (if other than the Corporation) or to which such sale,
conveyance, transfer or lease of property is made is a Person organized and
existing under the laws of the United States or any State thereof or the
District of Columbia, and (b) if the Corporation is not the surviving Person,
upon any such consolidation, merger, sale, conveyance, transfer or lease, the
due and punctual
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payment of the principal of and interest on the Securities according to their
tenor and the due and punctual performance and observance of all the covenants
and conditions of this Indenture to be kept or performed by the Corporation
shall be expressly assumed by the surviving Person, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act as then in
effect) satisfactory in form to the Debenture Trustee executed and delivered to
the Debenture Trustee by the Person formed by such consolidation, or into which
the Corporation shall have been merged, or by the Person which shall have
acquired such property, as the case may be, and (c) after giving effect to such
consolidation, merger, sale, conveyance, transfer or lease, no Default or Event
of Default shall have occurred and be continuing. Notwithstanding the
foregoing, nothing herein shall be deemed to restrict or prohibit, and no
supplemental indenture shall be required in the case of, the merger of a
Principal Subsidiary Bank with and into a Principal Subsidiary Bank or the
Corporation, the consolidation of Principal Subsidiary Banks into a Principal
Subsidiary Bank or the Corporation, or the sale or other disposition of all or
substantially all of the assets of any Principal Subsidiary Bank to another
Principal Subsidiary Bank or the Corporation, if, in any such case in which the
surviving, resulting or acquiring entity is not the Corporation, the
Corporation would own, directly or indirectly, at least 80% of the voting
securities of the Principal Subsidiary Bank (and of any other Principal
Subsidiary Bank any voting securities of which are owned, directly or
indirectly, by such Principal Subsidiary Bank) surviving such merger, resulting
from such consolidation or acquiring such assets.
SECTION 10.2 Successor Person to be Substituted for Corporation.
In case of any such consolidation, merger, sale, conveyance, transfer
or lease, and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Debenture Trustee and satisfactory in
form to the Debenture Trustee, of the obligation of due and punctual payment of
the principal of and interest on all of the Securities and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Corporation, such successor Person
shall succeed to and be substituted for the Corporation, with the same effect
as if it had been named herein as a party hereto, and the Corporation thereupon
shall be relieved of any further liability or obligation hereunder or upon the
Securities. Such successor Person thereupon may cause to be signed, and may
issue either in its own name or in the name of the Corporation, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Corporation and delivered to the Debenture Trustee or the Authenticating
Agent; and, upon the order of such successor Person instead of the Corporation
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Debenture Trustee or the Authenticating Agent shall
authenticate and deliver any Securities which previously shall have been signed
and delivered by any Officer of the Corporation to the Debenture Trustee or the
Authenticating Agent for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Debenture Trustee or the Authenticating Agent for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.
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SECTION 10.3 Opinion of Counsel to be Given Debenture Trustee.
The Debenture Trustee, subject to the provisions of Sections 6.1 and
6.2, may receive an Officer's Certificate or an Opinion of Counsel as
conclusive evidence that any consolidation, merger, sale, conveyance, transfer
or lease, and any assumption, permitted or required by the terms of this
Article X complies with the provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.1 Discharge of Indenture.
When (a) the Corporation shall deliver to the Debenture Trustee for
cancellation all Securities theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced as provided in Section 2.8) and not theretofore canceled, or (b)
all the Securities not theretofore canceled or delivered to the Debenture
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
prepayment within one year under arrangements satisfactory to the Debenture
Trustee for the giving of notice of prepayment, and the Corporation shall
deposit with the Debenture Trustee, in trust, funds sufficient to pay on the
Maturity Date or upon prepayment all of the Securities (other than any
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced as provided in Section 2.8) not theretofore canceled or delivered
to the Debenture Trustee for cancellation, including principal and interest
(including Compounded Interest and Additional Sums, if any) and Liquidated
Damages, if any, due or to become due to the Maturity Date or prepayment date,
as the case may be, but excluding, however, the amount of any moneys for the
payment of principal of or interest (including Compounded Interest and
Additional Sums, if any) or Liquidated Damages, if any, on the Securities (1)
theretofore repaid to the Corporation in accordance with the provisions of
Section 11.4, or (2) paid to any State or to the District of Columbia pursuant
to its unclaimed property or similar laws, and if, in either case the
Corporation shall also pay or cause to be paid all other sums payable hereunder
by the Corporation, then this Indenture shall cease to be of further effect.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Debenture Trustee under Section 6.6, the
obligations of the Corporation to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Debenture Trustee pursuant to
clause (b) of this Section, the obligations of the Debenture Trustee under
Section 11.2 and Section 11.4 shall survive. Thereafter, Sections 6.6, 6.10 and
11.4 shall survive, and the Debenture Trustee, on demand of the Corporation
accompanied by any Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Corporation, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Corporation,
however, hereby agrees to reimburse the Debenture Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Debenture Trustee
in connection with this Indenture or the Securities.
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SECTION 11.2 Deposited Moneys and U.S. Government Obligations to
be Held in Trust by Debenture Trustee.
Subject to the provisions of Section 11.4, all moneys and U.S.
Government Obligations deposited with the Debenture Trustee pursuant to
Sections 11.1 or 11.5 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment,
either directly or through any paying agent (including the Corporation if
acting as its own paying agent), to the holders of the particular Securities
for the payment of which such moneys or U.S. Government Obligations have been
deposited with the Debenture Trustee, of all sums due and to become due thereon
for principal and interest.
The Corporation shall pay and indemnify the Debenture Trustee against
any tax, fee or other charge imposed on or assessed against the U.S.
Governmental Obligations deposited pursuant to Section 11.5 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the holders of outstanding
Securities.
SECTION 11.3 Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Securities (other than the Debenture Trustee)
shall, upon written demand of the Corporation, be repaid to it or paid to the
Debenture Trustee, and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 11.4 Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Debenture Trustee or any
paying agent for payment of the principal of or interest (including Compounded
Interest and Additional Sums, if any) or Liquidated Damages, if any, on
Securities and not applied but remaining unclaimed by the holders of Securities
for two years after the date upon which the principal of or interest (including
Compounded Interest and Additional Sums, if any) or Liquidated Damages, if any,
on such Securities, as the case may be, shall have become due and payable,
shall be repaid to the Corporation by the Debenture Trustee or such paying
agent; and the holder of any of the Securities shall thereafter look only to
the Corporation for any payment which such holder may be entitled to collect
and all liability of the Debenture Trustee or such paying agent with respect to
such moneys shall thereupon cease.
SECTION 11.5 Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Corporation shall be deemed to have been Discharged (as defined
below) from its obligations with respect to the Securities on the 91st day
after the applicable conditions set forth below have been satisfied:
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(a) the Corporation shall have deposited or caused to be deposited
irrevocably with the Debenture Trustee or the Defeasance Agent
(as defined below) as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit
of the holders of the Securities (i) money in an amount, or
(ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with
respect to (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Debenture Trustee and
the Defeasance Agent, if any, to pay and discharge each
installment of principal of and interest on the outstanding
Securities on the dates such installments of principal and
interest are due;
(b) if the Securities are then listed on any national securities
exchange, the Corporation shall have delivered to the
Debenture Trustee and the Defeasance Agent, if any, an Opinion
of Counsel to the effect that the exercise of the option under
this Section 11.5 would not cause such Securities to be
delisted from such exchange;
(c) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such
deposit; and
(d) the Corporation shall have delivered to the Debenture Trustee
and the Defeasance Agent, if any, an Opinion of Counsel to the
effect that holders of the Securities will not recognize
income, gain or loss for United States federal income tax
purposes as a result of the exercise of the option under this
Section 11.5 and will be subject to United States federal
income tax on the same amount and in the same manner and at
the same times as would have been the case if such option had
not been exercised.
"Discharged" means that the Corporation shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Debenture Trustee, at the expense of the
Corporation, shall execute proper instruments acknowledging the same), except
(1) the rights of holders of Securities to receive, from the trust fund
described in clause (a) above, payment of the principal of and the interest on
the Securities when such payments are due; (2) the Corporation's obligations
with respect to the Securities under Sections 2.7, 2.8, 5.2 and 11.4; and (3)
the rights, powers, trusts, duties and immunities of the Debenture Trustee
hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Debenture Trustee hereunder and which assumes all of the
obligations of the Debenture Trustee necessary to enable the Debenture Trustee
to act hereunder. In the event such a
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Defeasance Agent is appointed pursuant to this Section, the following
conditions shall apply:
(1) the Debenture Trustee shall have approval rights over the
document appointing such Defeasance Agent and the document
setting forth such Defeasance Agent's rights and
responsibilities; and
(2) the Defeasance Agent shall provide verification to the
Debenture Trustee acknowledging receipt of sufficient money
and/or U.S. Government Obligations to meet the applicable
conditions set forth in this Section 11.5.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1 Indenture and Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or interest (including
Compounded Interest and Additional Sums, if any) or Liquidated Damages, if any,
on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Corporation in this Indenture, or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, officer or director, as such, past,
present or future, of the Corporation or of any successor Person to the
Corporation, either directly or through the Corporation or any successor Person
to the Corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 Successors.
All of the covenants, stipulations, promises and agreements of the
Corporation contained in this Indenture shall also bind the Corporation's
successors and assigns whether so expressed or not.
SECTION 13.2 Official Acts by Successor Corporation.
Any act or proceeding that, by any provision of this Indenture, is
authorized or required to be done or performed by any board, committee or
officer of the Corporation shall and may be done and performed with like force
and effect by the like board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Corporation.
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SECTION 13.3 Surrender of Corporation Powers.
The Corporation by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Debenture Trustee
may surrender any of the powers reserved to the Corporation hereunder, and
thereupon such power so surrendered shall terminate both as to the Corporation,
as the case may be, and as to any successor Person.
SECTION 13.4 Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Debenture Trustee or by the
holders of Securities on the Corporation may be given or served by being
deposited postage prepaid by first class mail, registered or certified mail,
overnight courier service or conformed telecopy addressed (until another
address is filed by the Corporation with the Debenture Trustee for the purpose)
to CNB Financial Corp., 24 Church Street, Canajoharie, NY 13317, Attention:
Administrative Trustee. Any notice, direction, request or demand by any
Securityholder to or upon the Debenture Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at
the office of Wilmington Trust Company at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration (unless another address is provided by the Debenture Trustee to
the Corporation for such purpose). Any notice or communication to a
Securityholder shall be mailed by first class mail to his or her address shown
on the Security Register kept by the security registrar for the Securities.
SECTION 13.5 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State without regard to
conflict of law principles thereof.
SECTION 13.6 Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Corporation to the Debenture
Trustee to take any action under any of the provisions of this Indenture, the
Corporation shall furnish to the Debenture Trustee an Officers' Certificate
stating that in the opinion of the signers all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with, except that in
the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
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Each certificate or opinion provided for in this Indenture and
delivered to the Debenture Trustee with respect to compliance with a condition
or covenant provided for in this Indenture (except certificates delivered
pursuant to Section 3.5) shall include (1) a statement that the Person making
such certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.7 Business Days.
In any case where the date of payment of principal of or interest on
the Securities is not a Business Day, the payment of such principal of or
interest on the Securities will not be made on such date but will be made on
the next succeeding Business Day, except if such Business Day is in the next
succeeding calendar month, such payment will be made on the immediately
preceding Business Day, with the same force and effect as if made on the
original date of payment, and no interest shall accrue for the period from and
after such date.
SECTION 13.8 Trust Indenture Act to Control.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required thereunder to be a part
of and govern this Indenture, the provision of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 13.9 Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 13.10 Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11 Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities shall for any reason be held to be invalid, illegal or
unenforceable in any
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respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of the Securities, but this Indenture and
the Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
The Corporation will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Corporation, provided that, in the event of any
such assignment, the Corporation will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.13 Acknowledgment of Rights.
The Corporation acknowledges that, with respect to any Securities held
by the Trust or a trustee of such Trust, if the Property Trustee of such Trust
fails to enforce its rights under this Indenture as the holder of the
Securities held as the assets of the Trust, a registered holder of Capital
Securities may institute a legal proceeding directly against the Corporation to
enforce such Property Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Corporation to pay principal of (or premium, if any) or interest (including
Compound Interest and Additional Sums, if any) on the Securities when due, the
Corporation acknowledges that a holder of Capital Securities may directly
institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the Securities having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities of such
holder on or after the respective due date specified in the Securities.
ARTICLE XIV
PREPAYMENT OF SECURITIES
SECTION 14.1 Special Event Prepayment.
If, prior to the Initial Optional Redemption Date, a Special Event has
occurred and is continuing, then notwithstanding Section 14.2(a) but subject to
Section 14.2(c), the Corporation shall have the right, at any time within 90
days following the occurrence of such Special Event, upon (i) not less than 45
days written notice to the Debenture Trustee and (ii) not less than 30 days nor
more than 60 days' written notice to the Securityholders, to prepay the
Securities, in whole (but not in part), at the Prepayment Price. The
Prepayment Price shall be paid prior to 12:00 noon, Eastern time, on the date
of such prepayment or such earlier time as the Corporation determines, provided
that the Corporation shall deposit with the Debenture Trustee an amount
sufficient to pay the
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Prepayment Price by 10:00 a.m., Eastern time, on the date such Prepayment Price
is to be paid.
SECTION 14.2 Optional Prepayment by Corporation.
(a) Subject to Sections 14.2(b) and (c), the Corporation shall
have the right to prepay the Securities, in whole or in part, at any time on or
after the Initial Optional Redemption Date, upon not less than 30 days and not
more than 60 days' written notice, at the Prepayment Price.
If the Securities are only partially prepaid pursuant to this Section
14.2, the Securities to be prepaid shall be selected on a pro rata basis not
more than 60 days prior to the date fixed for prepayment from the outstanding
Securities not previously called for prepayment; provided, however, that with
respect to Securityholders that would be required to hold Securities with an
aggregate principal amount of less than $100,000 but more than an aggregate
principal amount of zero as a result of such pro rata prepayment, the
Corporation shall prepay Securities of each such Securityholder so that after
such prepayment such Securityholder shall hold Securities either with an
aggregate principal amount of at least $100,000 or such Securityholder no
longer holds any Securities, and shall use such method (including, without
limitation, by lot) as the Corporation shall deem fair and appropriate;
provided, further, that any such proration may be made on the basis of the
aggregate principal amount of Securities held by each Securityholder and may be
made by making such adjustments as the Corporation deems fair and appropriate
in order that only Securities in denominations of $1,000 or integral multiples
thereof shall be prepaid. The Prepayment Price shall be paid prior to 12:00
noon Eastern time, on the date of such prepayment or at such earlier time as
the Corporation determines, provided that the Corporation shall deposit with
the Debenture Trustee an amount sufficient to pay the Prepayment Price by 10:00
a.m., Eastern time, on the date such Prepayment Price is to be paid.
(b) Notwithstanding the first sentence of Section 14.2(a), upon
the entry of an order for dissolution of the Trust by a court of competent
jurisdiction, the Securities thereafter will be subject to optional prepayment,
in whole only, but not in part, on or after the Initial Optional Redemption
Date, at the applicable Prepayment Price and otherwise in accordance with this
Article XIV.
(c) Any prepayment of Securities pursuant to Section 14.1 or
Section 14.2 shall be subject to the Corporation obtaining any and all required
regulatory approvals.
SECTION 14.3 No Sinking Fund.
The Securities are not entitled to the benefit of any sinking fund.
SECTION 14.4 Notice of Prepayment; Selection of Securities.
In case the Corporation shall desire to exercise the right to prepay
all, or, as the case may be, any part of the Securities in accordance with
their terms, it shall fix a date
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for prepayment and shall mail or cause to be mailed a notice of such prepayment
at least 30 and not more than 60 days' prior to the date fixed for prepayment
to the holders of Securities to be so prepaid as a whole or in part at their
last addresses as the same appear on the Security Register. Notice of
redemption of securities to be redeemed at the election of the Corporation
shall, at the Corporation's request, be given by the Debenture Trustee in the
name and at the expense of the Corporation. Such mailing shall be by first
class mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Security designated for prepayment as
a whole or in part shall not affect the validity of the proceedings for the
prepayment of any other Security.
Each such notice of prepayment shall specify the CUSIP number of the
Securities to be prepaid, the date fixed for prepayment, the Prepayment Price
at which the Securities are to be prepaid (or the method by which such
Prepayment Price is to be calculated), the place or places of payment where
payment will be made upon presentation and surrender of the Securities, that
interest accrued to the date fixed for prepayment will be paid as specified in
said notice, and that on and after said date interest thereon or on the
portions thereof to be prepaid will cease to accrue. If less than all the
Securities are to be prepaid, the notice of prepayment shall specify the
numbers of the Securities to be prepaid. In case any Security is to be prepaid
in part only, the notice of prepayment shall state the portion of the principal
amount thereof to be prepaid and shall state that on and after the date fixed
for prepayment, upon surrender of such Security, a new Security or Securities
in principal amount equal to the portion thereof that has not been prepaid will
be issued.
By 10:00 a.m., Eastern time, on the prepayment date specified in the
notice of prepayment given as provided in this Section, the Corporation will
deposit with the Debenture Trustee or with one or more paying agents (or if the
Corporation is acting as its own paying agent, the Corporation will segregate
and hold in trust as provided in Section 3.4) an amount of money sufficient to
prepay on the prepayment date all the Securities so called for prepayment at
the Prepayment Price .
SECTION 14.5 Payment of Securities Called for Prepayment.
If notice of prepayment has been given as provided in Section 14.4,
the Securities or portions of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the Prepayment Price (subject to the rights of holders
of Securities at the close of business on a regular record date in respect of
an Interest Payment Date occurring on or prior to the prepayment date) and on
and after said date unless the Corporation shall default in the payment of such
Securities at the Prepayment Price interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on the Securities or
portions of Securities so called for prepayment shall cease to accrue. On
presentation and surrender of such Securities at a place of payment specified
in said notice, the said Securities or the specified portions thereof shall be
paid and prepaid by the Corporation at the applicable Prepayment Price,
(subject to the rights of holders of Securities on the
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close of business on a regular record date in respect of an Interest Payment
Date occurring on or prior to the prepayment date).
Upon presentation of any Security prepaid in part only, the
Corporation shall execute and the Debenture Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Corporation, a new
Security or Securities of authorized denominations, in principal amount equal
to the portion of the Security so presented that has not been prepaid.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.1 Agreement to Subordinate
The Corporation covenants and agrees, and each holder of Securities
issued hereunder likewise covenants and agrees, that the Securities shall be
issued subject to the provisions of this Article XV; and each holder of a
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment by the Corporation of the principal of and interest
(including Compounded Interest and Additional Sums, if any) and Liquidated
Damages, if any, on all Securities issued hereunder shall, to the extent and in
the manner hereinafter set forth, be subordinated and subject in right of
payment to the prior payment in full of all Allocable Amounts then due and
payable in respect of Senior Indebtedness, whether outstanding at the date of
this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 15.2 Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Corporation in the payment of principal, premium, interest or any other payment
due on any Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default and such acceleration
has not been resined or canceled, then, in either case, no payment shall be
made by the Corporation with respect to the principal (including prepayment
payments) of or interest on the Securities (including Compounded Interest and
Additional Sums, if any, and Liquidated Damages, if any, or any other amounts
which may be due on the Securities pursuant to the terms hereof or thereof).
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In the event of the acceleration of the maturity of the Securities,
then no payment shall be made by the Corporation with respect to the principal
(including prepayment payments) of or interest on the Securities (including
Compounded Interest and Additional Sums, if any, and Liquidated Damages, if
any, or any other amounts which may be due on the Securities pursuant to the
terms hereof or thereof) until the holders of all Senior Indebtedness
outstanding at the time of such acceleration shall receive payment, in full, of
all Allocable Amounts due on or in respect of such Senior Indebtedness
(including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment shall be
received by the Debenture Trustee, or any Securityholder, when such payment is
prohibited by the preceding paragraphs of this Section 15.2, such payment shall
be held in trust for the benefit of, and shall be paid over or delivered by the
Debenture Trustee (if the Notice requested by Section 15.6 has been received by
the Debenture Trustee) or by any Securityholder, to the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
of the Allocable Amounts in respect of such Senior Indebtedness and to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Debenture Trustee in writing within 90
days of such payment of the Allocable Amounts then due and owing on such Senior
Indebtedness, and only the Allocable Amounts specified in such notice to the
Debenture Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 15.3 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Corporation or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, the holders of all Senior Indebtedness of
the Corporation will first be entitled to receive payment in full of Allocable
Amounts of such Senior Indebtedness, before any payment is made by the
Corporation on account of the principal of or interest on the Securities
(including Compounded Interest and Additional Sums (if any) and Liquidated
Damages, if any, or any other amounts which may be due on the Securities
pursuant to the terms hereof or thereof); and upon any such dissolution,
winding-up, liquidation or reorganization, any payment by the Corporation, or
distribution of assets of the Corporation of any kind or character, whether in
cash, property or securities, which the Securityholders or the Debenture
Trustee would be entitled to receive from the Corporation, except for the
provisions of this Article XV, shall be paid by the Corporation or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Securityholders or by the
Debenture Trustee under the Indenture if received by them or it, directly to
the holders of Senior Indebtedness of the Corporation (pro rata to such holders
on the basis of the respective Allocable Amounts of Senior Indebtedness held by
such holders, as calculated by the Corporation) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior
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Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay all such Allocable Amounts of Senior Indebtedness
in full, in money or moneys worth, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness,
before any payment or distribution is made to the Securityholders or to the
Debenture Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Corporation of any kind or character prohibited
by the foregoing, whether in cash, property or securities, shall be received by
the Debenture Trustee, or any Securityholder, before the Allocable Amounts of
all Senior Indebtedness is paid in full, or provision is made for such payment
in money in accordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or delivered by the
Debenture Trustee (if the Notice requested by Section 15.6 has been received by
the Debenture Trustee) or by any Securityholder, to the holders of such Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Corporation, for application to the payment of all
Allocable Amounts of Senior Indebtedness remaining unpaid to the extent
necessary to pay all Allocable Amounts of such Senior Indebtedness in full in
money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of such Senior
Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Corporation
as reorganized or readjusted, or securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XV with respect to the Securities to the payment of Senior Indebtedness
that may at the time be outstanding, provided that (i) such Senior Indebtedness
is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Corporation
with, or the merger of the Corporation into, another Person or the liquidation
or dissolution of the Corporation following the sale, conveyance, transfer or
lease of its property as an entirety, or substantially as an entirety, to
another Person upon the terms and conditions provided for in Article X of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.3 if such other Person
shall, as a part of such consolidation, merger, sale, conveyance, transfer or
lease, comply with the conditions stated in Article X of this Indenture.
Nothing in Section 15.2 or in this Section 15.3 shall apply to claims of, or
payments to, the Debenture Trustee under or pursuant to Section 6.6 of this
Indenture.
SECTION 15.4 Subrogation.
Subject to the payment in full of all Allocable Amounts of Senior
Indebtedness, the rights of the Securityholders shall be subrogated to the
extent of the payments or
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distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article (equally and ratably with the holders of all
indebtedness of the Company that by its express terms is subordinated to Senior
Indebtedness of the Company to substantially the same extent as the Securities
are subordinated to the Senior Indebtedness and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such
Senior Indebtedness) to the rights of the holders of such Senior Indebtedness
to receive payments or distributions of cash, property or securities of the
Corporation, as the case may be, applicable to such Senior Indebtedness until
the principal of and interest on the Securities shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders
of such Senior Indebtedness of any cash, property or securities to which the
Securityholders or the Debenture Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to the provisions
of this Article XV to or for the benefit of the holders of such Senior
Indebtedness by Securityholders or the Debenture Trustee, shall, as between the
Corporation, its creditors other than holders of Senior Indebtedness of the
Corporation, and the holders of the Securities, be deemed to be a payment by
the Corporation to or on account of such Senior Indebtedness. It is understood
that the provisions of this Article XV are and are intended solely for the
purposes of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Corporation,
its creditors other than the holders of Senior Indebtedness of the Corporation,
and the holders of the Securities, the obligation of the Corporation, which is
absolute and unconditional, to pay to the holders of the Securities the
principal of and interest (including Compounded Interest and Additional Sums,
if any) and Liquidated Damages, if any, on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the holders of the Securities and
creditors of the Corporation, as the case may be, other than the holders of
Senior Indebtedness of the Corporation, as the case may be, nor shall anything
herein or therein prevent the Debenture Trustee or the holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XV of
the holders of such Senior Indebtedness in respect of cash, property or
securities of the Corporation, as the case may be, received upon the exercise
of any such remedy.
SECTION 15.5 Debenture Trustee to Effectuate Subordination.
Each Securityholder, by such Securityholder's acceptance thereof,
authorizes and directs the Debenture Trustee on such Securityholder's behalf to
take such action (as the Debenture Trustee, in its discretion, deems necessary
or appropriate, upon instruction or otherwise) to effectuate the subordination
provided in this Article XV and appoints the Debenture Trustee such
Securityholder's attorney-in-fact for any and all such purposes.
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SECTION 15.6 Notice by the Corporation.
The Corporation shall give prompt written notice to a Responsible
Officer of the Debenture Trustee of any fact known to the Corporation that
would prohibit the making of any payment of monies to or by the Debenture
Trustee in respect of the Securities pursuant to the provisions of this Article
XV. Notwithstanding the provisions of this Article XV or any other provision
of this Indenture, the Debenture Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
monies to or by the Debenture Trustee in respect of the Securities pursuant to
the provisions of this Article XV, unless and until a Responsible Officer of
the Debenture Trustee shall have received written notice thereof from the
Corporation or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Debenture
Trustee, subject to the provisions of Article VI of this Indenture, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Debenture Trustee shall not have received the notice provided for
in this Section 15.6 at least two Business Days prior to the date upon which,
by the terms hereof, any money may become payable for any purpose (including,
without limitation, the payment of the principal of or interest (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if
any, on any Security), then, anything herein contained to the contrary
notwithstanding, the Debenture Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Debenture Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on a written notice delivered
to it by a Person representing himself to be a holder of Senior Indebtedness of
the Corporation (or a trustee on behalf of such holder), as the case may be, to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the
event that the Debenture Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XV, the Debenture Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Debenture Trustee as to the amount of
such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XV, and, if such
evidence is not furnished, the Debenture Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Upon any payment or distribution of assets of the Corporation referred
to in this Article XV, the Debenture Trustee, subject to the provisions of
Article VI of this Indenture, and the Securityholders shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person
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making such payment or distribution, delivered to the Debenture Trustee or to
the Securityholders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Corporation, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XV.
SECTION 15.7 Rights of the Debenture Trustee; Holders of Senior
Indebtedness.
The Debenture Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XV in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Debenture
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Corporation,
the Debenture Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Debenture Trustee.
The Debenture Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior Indebtedness and, subject to the provisions of Article
VI of this Indenture, the Debenture Trustee shall not be liable to any holder
of such Senior Indebtedness if it shall pay over or deliver to Securityholders,
the Corporation or any other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Debenture Trustee under or pursuant to Section 6.6.
SECTION 15.8 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Corporation to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part
of the Corporation, as the case may be, or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Corporation, as
the case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Corporation may, at any time and from
time to time, without the consent of or notice to the Debenture Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Securities to the holders of
such Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the
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same or any agreement under which such Senior Indebtedness is outstanding; (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing such Senior Indebtedness; (iii) release any Person liable
in any manner for the collection of such Senior Indebtedness; and (iv) exercise
or refrain from exercising any rights against the Corporation, as the case may
be, and any other Person.
SECTION 15.9 Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article XV only, (a) the issuance and
delivery of junior securities upon conversion or exchange of Securities shall
not be deemed to constitute a payment or distribution on account of the
principal of (or premium, if any) or interest (including any Defaulted
Interest) on Securities or on account of the purchase or other acquisition of
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a
Security shall be deemed to constitute payment on account of the principal of
such security. For the purposes of this Section 15.9, the term "junior
securities" means (i) shares of any stock of any class of the Corporation and
(ii) securities of the Corporation which are subordinated in right of payment
to all Senior Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a
greater extent than, the Securities so subordinated as provided in this Article
XV.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.1 Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right, at any time and from time to time during the
term of the Securities, to defer payments of interest, including Additional
Sums and Compounded Interest (collectively, "Deferred Interest"), by extending
the interest payment period of such Securities for a period not exceeding 20
consecutive quarterly periods, including the first such quarterly period during
such extension period (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no Deferred Interest shall be due and payable,
provided that no Extended Interest Payment Period shall end on a date other
than an Interest Payment Date or extend beyond the Maturity Date. To the
extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 16.1, will bear interest thereon at the applicable periodic Coupon
Rate compounded quarterly for each quarterly period during the Extended
Interest Payment Period ("Compounded Interest"). At the end of the Extended
Interest Payment Period, the Corporation shall pay all Deferred Interest that
shall be payable to the holders of the Securities in whose names the Securities
are registered in the Security Register on the record date immediately
preceding the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Corporation may
further defer payments of interest by further extending such Extended Interest
Payment Period, provided that such Extended Interest Payment Period, together
with all such previous and further extensions
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within such Extended Interest Payment Period, shall not (i) exceed 20
consecutive quarterly periods, including the first such quarterly period during
such Extended Interest Payment Period, (ii) end on a date other than an
Interest Payment Date or (iii) extend beyond the Maturity Date of the
Securities. Upon the termination of any Extended Interest Payment Period and
the payment of all amounts then due, the Corporation may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Corporation may prepay at any time all or
any portion of the interest accrued during an Extended Interest Payment Period.
SECTION 16.2 Notice of Extension.
(a) If the Property Trustee is the only holder of the Securities
at the time the Corporation elects to commence an Extended Interest Payment
Period, the Corporation shall give written notice to the Property Trustee and
the Debenture Trustee of its election to commence such Extended Interest
Payment Period at least one Business Day before the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities would have been
payable but for such deferral, and (ii) the date the Property Trustee is
required to give notice to holders of capital securities of the record date, or
the date such Distributions are payable, but in any event at least one Business
Day before such record date.
(b) If the Property Trustee is not the only holder of the
Securities at the time the Corporation elects to commence an Extended Interest
Payment Period, the Corporation shall give the holders of the Securities and
the Debenture Trustee written notice of its election of such Extended Interest
Payment Period at least one Business Day prior to the next succeeding Interest
Payment Date on which interest on Securities would be payable but for such
deferral.
(c) The quarterly period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 16.2 shall be counted as one of the 20
quarterly periods permitted in the maximum Extended Interest Payment Period
permitted under Section 16.1.
Wilmington Trust Company hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
CNB FINANCIAL CORP.
By:
/s/ Peter J. Corso
-----------------------------------
Peter J. Corso
Executive Vice President
and Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Debenture Trustee
By: /s/ Thomas Laskaris
-----------------------------------
Name: Thomas Laskaris
Title: Vice President
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EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF Wilmington TRUST COMPANY ("DTC") OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH CNB FINANCIAL CORP.
(THE "CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE CORPORATION, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
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<PAGE> 81
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES
ACT, SUBJECT TO THE RIGHT OF THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) ABOVE TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
CORPORATION, AND (ii) PURSUANT TO CLAUSE (D) TO REQUIRE THAT A CERTIFICATE OF
TRANSFER SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED
AUGUST 4, 1999 IS COMPLETED AND DELIVERED BY THE TRANSFEREE TO THE CORPORATION.
SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY ATTEMPTED
TRANSFER OF SECURITIES IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS
THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, AND
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
SUCH SECURITIES.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT: (A) THE PURCHASE AND HOLDING OF THE SECURITIES
IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1
OR 84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) CNB AND THE ADMINISTRATORS ARE
NOT "FIDUCIARIES" WITHIN THE MEANING OF SECTION 3(21) OF ERISA AND THE
REGULATIONS THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST IN THE
SECURITIES OR THE JUNIOR SUBORDINATED DEFERRABLE
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<PAGE> 82
INTEREST DEBENTURES, AND (C) IN PURCHASING THE CAPITAL SECURITIES SUCH PERSON
APPROVES THE PURCHASE OF THE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
AND THE APPOINTMENT OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE
BOUND BY THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF AUGUST 6, 1999, BY AND
AMONG THE TRUST, THE DEBENTURE TRUSTEE AND THE INITIAL PURCHASER NAMED THEREIN,
AS AMENDED FROM TIME TO TIME.
CNB FINANCIAL CORP.
CUSIP No.: [_____________]
$18,720,000
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE September 30, 2029 Series A/Series B
CNB Financial Corp., a New York corporation (the "Corporation," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [ ] or
its registered assigns, the principal sum of $18,720,000 Dollars on September
30, 2029 (the "Maturity Date"), unless previously prepaid, and to pay interest
on the outstanding principal amount hereof from August 6, 1999, or from the
most recent interest payment date (each such date, an "Interest Payment Date")
to which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing June 30, 1999 at the rate per annum, reset
quarterly, equal to 3-month LIBOR (as defined in the Indenture) plus 275 basis
points until the principal hereof shall have become due and payable, and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of interest at the same rate per annum compounded quarterly ("Compounded
Interest"). The amount of interest payable on any Interest Payment Date shall
be computed on the basis of the actual number of days elapsed and a 360-day
year. In the event that any date on which the principal of or interest on this
Security is payable is not a Business Day (as defined in the Indenture), then
the payment payable on such date will be made on the next succeeding day that
is a Business Day, except that if such next succeeding Business Day falls in
the next succeeding calendar month such payment shall be made on the
immediately preceding Business Day (and without any interest or other payment
in respect of any such delay), with the same force and effect as if made on
such date. Pursuant to the Indenture, in certain circumstances the Corporation
will be required to pay Additional Sums (as defined in the Indenture) with
respect to this Security. Pursuant to the Registration
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<PAGE> 83
Rights Agreement, in certain limited circumstances the Corporation will be
required to pay Liquidated Damages (as defined in the Registration Rights
Agreement) with respect to this Security.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of
business on the regular record date for such interest installment, which shall
be at the close of business on the first day of the month in which the relevant
Interest Payment Date falls. Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the holders on such
regular record date and may be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a special record date to be fixed by the Debenture Trustee for the payment
of such defaulted interest, notice whereof shall be given to the holders of
Securities not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The principal of and interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on this Security shall
be payable at the office or agency of the Debenture Trustee maintained for that
purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Corporation by (i) check mailed to the holder at such address as shall appear
in the Security Register or (ii) transfer to an account maintained by the
Person entitled thereto, provided that proper written transfer instructions
have been received by the relevant record date. Notwithstanding the foregoing,
so long as the holder of this Security is the Property Trustee of CNBF Capital
Trust I, the payment of the principal of and interest (including Compounded
Interest and Additional Sums, if any) and Liquidated Damages, if any, on this
Security will be made at such place and to such account as may be designated by
such Property Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full, of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each holder
of this Security, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Debenture Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Debenture Trustee
his or her attorney-in-fact for any and all such purposes. Each holder hereof,
by his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
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<PAGE> 84
This Security shall not be entitled to any benefit under the Indenture
or be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Debenture
Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
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<PAGE> 85
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed and sealed this [___] day of [__________________], 1999.
CNB FINANCIAL CORP.
By:
---------------------------------------
Peter J. Corso
Executive Vice President
and Chief Financial Officer
Attest:
By:
-------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Floating Rate Junior Subordinated Deferrable
Interest Debentures Series A/ Series B, of CNB FINANCIAL CORP. referred to in
the within-mentioned Indenture.
Wilmington TRUST COMPANY,
not in its individual capacity but solely as
Debenture Trustee
Dated: By:
--------------------- ----------------------------------------
Authorized Signatory
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<PAGE> 86
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Corporation (herein
sometimes referred to as the "Securities"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture, dated as of August
6, 1999 (the "Indenture"), duly executed and delivered between the Corporation
and Wilmington Trust Company, as Debenture Trustee (the "Debenture Trustee"),
to which Indenture reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Debenture Trustee, the Corporation, the holders of Senior Indebtedness and the
holders of the Securities.
Upon the occurrence and continuation of a Special Event (as defined in
the Indenture) prior to September 30, 2009 (the "Initial Optional Redemption
Date"), the Corporation shall have the right, at any time within 90 days
following the occurrence of such Special Event, to prepay this Security in
whole (but not in part) at the Prepayment Price. "Prepayment Price" shall
mean, with respect to any prepayment of this Security, an amount in cash equal
to 100% of the principal amount of this Security to be prepaid plus any accrued
and unpaid interest (including Compounded Interest and Additional Sums, if
any), if any, thereon to the date of such prepayment.
In addition, the Corporation shall have the right to prepay this
Security, in whole or in part, at any time on or after the Initial Optional
Redemption Date (an "Optional Prepayment"), at the Prepayment Price.
The Prepayment Price shall be paid prior to 12:00 noon, Eastern time,
on the date of such prepayment or at such earlier time as the Corporation
determines, provided that the Corporation shall deposit with the Debenture
Trustee an amount sufficient to pay the Prepayment Price by 10:00 a.m., Eastern
time, on the date such Prepayment Price is to be paid. Any prepayment pursuant
to this paragraph will be made upon not less than 30 days' nor more than 60
days' prior written notice.
If the Securities are only partially prepaid by the Corporation
pursuant to an Optional Prepayment, the particular Securities to be prepaid
shall be selected on a pro rata basis from the outstanding Securities not
previously called for prepayment; provided, however, that with respect to
Securityholders that would be required to hold Securities with an aggregate
principal amount of less than $100,000 but more than an aggregate principal
amount of zero as a result of such pro rata prepayment, the Corporation shall
prepay Securities of each such Securityholder so that after such prepayment
such Securityholder shall hold Securities either with an aggregate principal
amount of at least $100,000 or such Securityholder no longer holds any
Securities and shall use such method (including, without limitation, by lot) as
the Corporation shall deem fair and appropriate; provided, further, that any
such proration may be made on the basis of the aggregate principal amount of
Securities held by each Securityholder thereof and may be made by making such
adjustments as the Corporation deems fair and appropriate in order that only
Securities in denominations of $1,000 or integral multiples thereof shall be
prepaid. In the event of prepayment of this Security in part only, a new
Security or Securities for the portion hereof that has not been prepaid will be
issued in the name of the holder hereof upon the cancellation hereof.
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<PAGE> 87
Notwithstanding the foregoing, any prepayment of Securities by the
Corporation shall be subject to the receipt of any and all required regulatory
approvals.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Corporation and the
Debenture Trustee, with the consent of the holders of a majority in aggregate
principal amount of the Securities at the time outstanding (as defined in the
Indenture), to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of modifying in any manner the rights of the holders of the
Securities; provided, however, that no such supplemental indenture shall,
without the consent of each holder of Securities then outstanding and affected
thereby, (i) change the Maturity Date of any Security, or reduce the rate or
extend the time of payment of interest thereon (subject to Article XVI of the
Indenture), or reduce the principal amount thereof, or change any of the
prepayment provisions or make the principal thereof or any interest thereon
payable in any coin or currency other than U.S. dollars, or impair or affect
the right of any holder of Securities to institute suit for payment thereof, or
(ii) reduce the aforesaid percentage of Securities the holders of which are
required to consent to any such supplemental indenture. The Indenture also
contains provisions permitting the holders of a majority in aggregate principal
amount of the Securities at the time outstanding affected thereby, on behalf of
all of the holders of the Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default in the
payment of the principal of or interest on any of the Securities or a default
in respect of any covenant or provision under which the Indenture cannot be
modified or amended without the consent of each holder of Securities then
outstanding. Any such consent or waiver by the holder of this Security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Security and of any
Security issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of and interest
(including Compounded Interest and Additional Sums, if any) and Liquidated
Damages, if any, on this Security at the time and place and at the rate and in
the money herein prescribed.
So long as no Event of Default shall have occurred and be continuing,
the Corporation shall have the right, at any time and from time to time during
the term of the Securities, to defer payments of interest by extending the
interest payment period (an "Extended Interest Payment Period") of such
Securities for a period not (i) exceeding 20 consecutive quarterly periods,
including the first such quarterly period during such extension period, (ii)
extending beyond the Maturity Date of the Securities or (iii) ending on a date
other than an Interest Payment Date, at the end of which period the Corporation
shall pay all interest then accrued and unpaid (together with
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<PAGE> 88
interest thereon at the rate specified for the Securities to the extent that
payment of such interest is enforceable under applicable law). Before the
termination of any such Extended Interest Payment Period, the Corporation may
further defer payments of interest by further extending such Extended Interest
Payment Period, provided that such Extended Interest Payment Period, together
with all such previous and further extensions within such Extended Interest
Payment Period, (i) shall not exceed 20 consecutive quarterly periods including
the first quarterly period during such Extended Interest Payment Period, (ii)
shall not end on any date other than an Interest Payment Date, and (iii) shall
not extend beyond the Maturity Date of the Securities. Upon the termination of
any such Extended Interest Payment Period and the payment of all accrued and
unpaid interest and any additional amounts then due, the Corporation may
commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof, but the Corporation may prepay at
any time all or any portion of the interest accrued during an Extended Interest
Payment Period.
The Corporation has agreed that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock,
(ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities (including other Debentures) of
the Corporation that rank pari passu with or junior in right of payment to the
Securities or (iii) make any guarantee payments with respect to any guarantee
by the Corporation of the debt securities of any Subsidiary of the Corporation
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in right of payment to the Securities. Notwithstanding the foregoing, the
Corporation may make the following payments (a) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, the Corporation's capital stock (which includes Common Stock and preferred
stock), (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under the Capital Securities Guarantee, as defined in the
Indenture, (d) as a result of a reclassification of the Corporation's capital
stock or the exchange or conversion of one class or series of the Corporation's
capital stock for another class or series of the Corporation's capital stock,
(e) the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged, and (f) redemptions or other
acquisitors of shares of capital stock of the corporation in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or consultants,
in connection with any of the Corporations's dividend reinvestment or
stockholder stock purchase plans, if at such time (1) there shall have occurred
any event of which the Corporation has actual knowledge that (a) is, or with
the giving of notice or lapse of time, or both, would be a Default or an Event
of Default and (b) in respect of which the Corporation shall not have taken
reasonable steps to cure, (2) if such Securities are held by the Trust, the
Corporation shall be in default with respect to its payment of any obligations
under the Capital Securities Guarantee or (3) the Corporation shall have given
notice of its election to exercise its right to commence an Extended Interest
Payment Period, and shall not have rescinded such Notice, and such Extended
Interest Payment Period or any extension thereof shall have commenced and be
continuing.
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Subject to the Corporation having received any required regulatory
approvals and the Administrators of CNBF Capital Trust I having received an
opinion of counsel to the effect that such distribution will not cause the
holders of Capital Securities to recognize gain or loss for federal income tax
purposes, the Corporation will have the right at any time to liquidate the
Trust and, after satisfaction of liabilities of creditors of the Trust as
required by applicable law, to cause the Securities to be distributed to the
holders of the Trust Securities in liquidation of the Trust.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and multiples of $1,000 in excess thereof.
As provided in the Indenture and subject to the transfer restrictions
limitations as may be contained herein and therein from time to time, this
Security is transferable by the holder hereof on the Security Register of the
Corporation, upon surrender of this Security for registration of transfer at
the office or agency of the Corporation in Wilmington, Delaware accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Corporation or the Debenture Trustee duly executed by the holder hereof or his
or her attorney duly authorized in writing, and thereupon one or more new
Securities of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service
charge will be made for any such registration of transfer, but the Corporation
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Security, the Corporation, the Debenture Trustee, any authenticating agent, any
paying agent, any transfer agent and the security registrar may deem and treat
the holder hereof as the absolute owner hereof (whether or not this Security
shall be overdue and notwithstanding any notice of ownership or writing hereon
made by anyone other than the security registrar for the Securities) for the
purpose of receiving payment of or on account of the principal hereof and
(subject to the Indenture) interest due hereon and for all other purposes, and
neither the Corporation nor the Debenture Trustee nor any authenticating agent
nor any paying agent nor any transfer agent nor any security registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest (including Compounded Interest and Additional Sums, if any) or
Liquidated Damages, if any, on this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, employee, officer or director, as such,
past, present or future, as such, of the Corporation or of any predecessor or
successor Person to the Corporation, either directly or through the corporation
or any successor person to the Corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; if being expressly understood that all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released as a condition of, and as a
consideration for, the executor of the Indenture and the issuance of the
securities.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-10
<PAGE> 90
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES THEREOF.
A-11
<PAGE> 1
EXHIBIT 4.2
FORM OF SERIES B DEBENTURE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY ATTEMPTED
TRANSFER OF SECURITIES IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS
THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, AND
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
SECURITIES.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT: (A) THE PURCHASE AND HOLDING OF THE SECURITIES IS
COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR
84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) CNB AND THE ADMINISTRATORS ARE NOT
"FIDUCIARIES" WITHIN THE MEANING OF SECTION 3(21) OF ERISA AND THE REGULATIONS
THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST IN THE SECURITIES OR THE
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, AND (C) IN PURCHASING THE
CAPITAL
<PAGE> 2
SECURITIES SUCH PERSON APPROVES THE PURCHASE OF THE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURES AND THE APPOINTMENT OF THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE.
<PAGE> 3
CNB FINANCIAL CORP.
CUSIP No.: ____________
$______________
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE SEPTEMBER 30, 2029 Series B
CNB Financial Corp., a New York corporation (the "Corporation," which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to [ ] or its registered
assigns, the principal sum of $___________ on September 30, 2029 (the "Maturity
Date"), unless previously prepaid, and to pay interest on the outstanding
principal amount hereof from August 6, 1999, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing September 30, 1999 at the rate per annum, reset quarterly,
equal to 3-month LIBOR (as defined in the Indenture) plus 275 basis points until
the principal hereof shall have become due and payable, and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly ("Compounded
Interest"). The amount of interest payable on any Interest Payment Date shall be
computed on the basis of the actual number of days elapsed and a 360-day year.
In the event that any date on which the principal of or interest on this
Security is payable is not a Business Day (as defined in the Indenture), then
the payment payable on such date will be made on the next succeeding day that is
a Business Day, except that if such next succeeding Business Day falls in the
next succeeding calendar year such payment shall be made on the immediately
preceding Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on such date.
Pursuant to the Indenture, in certain circumstances the Corporation will be
required to pay Additional Sums (as defined in the Indenture) with respect to
this Security. Pursuant to the Registration Rights Agreement, in certain limited
circumstances the Corporation will be required to pay Liquidated Damages (as
defined in the Registration Rights Agreement) with respect to this Security.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be at the
close of business on the first day of the month in which the relevant Interest
Payment Date falls. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the holders on such regular
record date and may be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a special
record date
<PAGE> 4
to be fixed by the Debenture Trustee for the payment of such defaulted interest,
notice whereof shall be given to the holders of Securities not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
The principal of and interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on this Security shall
be payable at the office or agency of the Debenture Trustee maintained for that
purpose in any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Corporation
by (i) check mailed to the holder at such address as shall appear in the
Security Register or (ii) transfer to an account maintained by the Person
entitled thereto, provided that proper written transfer instructions have been
received by the relevant record date. Notwithstanding the foregoing, so long as
the holder of this Security is the Property Trustee of CNBF Capital Trust I, the
payment of the principal of and interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, on this Security will
be made at such place and to such account as may be designated by such Property
Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full, of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Debenture Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Debenture Trustee
his or her attorney-in-fact for any and all such purposes. Each holder hereof,
by his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
or be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Debenture
Trustee.
The provisions of this Security are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
<PAGE> 5
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed and sealed this ______ day of _________, 1999.
CNB FINANCIAL CORP.
By:
----------------------------
Peter J. Corso
Executive Vice President
and Chief Financial Officer
Attest:
By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Floating Rate Junior Subordinated Deferrable Interest
Debentures Series B, of CNB FINANCIAL CORP. referred to in the within-mentioned
Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Debenture Trustee
Dated: By:
------------------ ----------------------------
Authorized Signatory
<PAGE> 6
[FORM OF REVERSE OF SECURITY]
This Security is one of the Securities of the Corporation (herein sometimes
referred to as the "Securities"), specified in the Indenture, all issued or to
be issued under and pursuant to an Indenture, dated as of August 6, 1999 (the
"Indenture"), duly executed and delivered between the Corporation and Wilmington
Trust Company, as Debenture Trustee (the "Debenture Trustee"), to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Debenture
Trustee, the Corporation, the holders of Senior Indebtedness and the holders of
the Securities.
Upon the occurrence and continuation of a Special Event (as defined in the
Indenture) prior to September 30, 2009 (the "Initial Optional Redemption Date"),
the Corporation shall have the right, at any time within 90 days following the
occurrence of such Special Event, to prepay this Security in whole (but not in
part) at the Prepayment Price. "Prepayment Price" shall mean, with respect to
any prepayment of this Security, an amount in cash equal to 100% of the
principal amount of this Security to be prepaid plus any accrued and unpaid
interest (including Compounded Interest and Additional Sums, if any), if any,
thereon to the date of such prepayment.
In addition, the Corporation shall have the right to prepay this Security, in
whole or in part, at any time on or after the Initial Optional Redemption Date
(an "Optional Prepayment"), at the Prepayment Price.
The Prepayment Price shall be paid prior to 12:00 noon, Eastern time, on the
date of such prepayment or at such earlier time as the Corporation determines,
provided that the Corporation shall deposit with the Debenture Trustee an amount
sufficient to pay the Prepayment Price by 10:00 a.m., Eastern time, on the date
such Prepayment Price is to be paid. Any prepayment pursuant to this paragraph
will be made upon not less than 30 days' nor more than 60 days' prior written
notice.
If the Securities are only partially prepaid by the Corporation pursuant to an
Optional Prepayment, the particular Securities to be prepaid shall be selected
on a pro rata basis from the outstanding Securities not previously called for
prepayment; provided, however, that with respect to Securityholders that would
be required to hold Securities with an aggregate principal amount of less than
$100,000 but more than an aggregate principal amount of zero as a result of such
pro rata prepayment, the Corporation shall prepay Securities of each such
Securityholder so that after such prepayment such Securityholder shall hold
Securities either with an aggregate principal amount of at least $100,000 or
such Securityholder no longer holds any Securities and shall use such method
(including, without limitation, by lot) as the Corporation shall deem fair and
appropriate; provided, further, that any such proration may be made on the basis
of the aggregate principal amount of Securities held by each Securityholder
thereof and may be made by making such adjustments as the Corporation deems fair
and appropriate in order that only Securities in denominations of $1,000 or
integral multiples thereof shall be prepaid. In the event of prepayment of this
Security in part only, a new Security or Securities for the
<PAGE> 7
portion hereof that has not been prepaid will be issued in the name of the
holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any prepayment of Securities by the Corporation
shall be subject to the receipt of any and all required regulatory approvals.
In case an Event of Default (as defined in the Indenture) shall have occurred
and be continuing, the principal of all of the Securities may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the Debenture
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the Securities at the time outstanding (as defined in the Indenture),
to execute supplemental indentures for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of modifying in any manner the rights of the holders of the Securities;
provided, however, that no such supplemental indenture shall, without the
consent of each holder of Securities then outstanding and affected thereby, (i)
change the Maturity Date of any Security, or reduce the rate or extend the time
of payment of interest thereon (subject to Article XVI of the Indenture), or
reduce the principal amount thereof, or change any of the prepayment provisions
or make the principal thereof or any interest thereon payable in any coin or
currency other than U.S. dollars, or impair or affect the right of any holder of
Securities to institute suit for payment thereof, or (ii) reduce the aforesaid
percentage of Securities the holders of which are required to consent to any
such supplemental indenture. The Indenture also contains provisions permitting
the holders of a majority in aggregate principal amount of the Securities at the
time outstanding affected thereby, on behalf of all of the holders of the
Securities, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any of the Securities or a default in respect of any covenant or provision under
which the Indenture cannot be modified or amended without the consent of each
holder of Securities then outstanding. Any such consent or waiver by the holder
of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Security and of any Security issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of and interest (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if any,
on this Security at the time and place and at the rate and in the money herein
prescribed.
So long as no Event of Default shall have occurred and be continuing, the
Corporation shall have the right, at any time and from time to time during the
term of the Securities, to
<PAGE> 8
defer payments of interest by extending the interest payment period (an
"Extended Interest Payment Period") of such Securities for a period not (i)
exceeding 20 consecutive quarterly periods, including the first such quarterly
period during such extension period, (ii) extending beyond the Maturity Date of
the Securities or (iii) ending on a date other than an Interest Payment Date, at
the end of which period the Corporation shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the Securities
to the extent that payment of such interest is enforceable under applicable
law). Before the termination of any such Extended Interest Payment Period, the
Corporation may further defer payments of interest by further extending such
Extended Interest Payment Period, provided that such Extended Interest Payment
Period, together with all such previous and further extensions within such
Extended Interest Payment Period, (i) shall not exceed 20 consecutive quarterly
periods including the first quarterly period during such Extended Interest
Payment Period, (ii) shall not end on any date other than an Interest Payment
Date, and (iii) shall not extend beyond the Maturity Date of the Securities.
Upon the termination of any such Extended Interest Payment Period and the
payment of all accrued and unpaid interest and any additional amounts then due,
the Corporation may commence a new Extended Interest Payment Period, subject to
the foregoing requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof, but the Corporation
may prepay at any time all or any portion of the interest accrued during an
Extended Interest Payment Period.
The Corporation has agreed that it will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Corporation's capital stock, (ii) make any payment
of principal of or interest or premium, if any, on or repay, repurchase or
redeem any debt securities (including other Debentures) of the Corporation that
rank pari passu with or junior in right of payment to the Securities or (iii)
make any guarantee payments with respect to any guarantee by the Corporation of
the debt securities of any Subsidiary of the Corporation (including Other
Guarantees) if such guarantee ranks pari passu with or junior in right of
payment to the Securities. Notwithstanding the foregoing, the Corporation may
make the following payments (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of, the
Corporation's capital stock (which includes Common Stock and preferred stock),
(b) any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Capital Securities Guarantee, as defined in the Indenture,
(d) as a result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the Corporation's capital stock
for another class or series of the Corporation's capital stock, (e) the purchase
of fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (f) redemptions or other acquisitors of shares
of capital stock of the corporation in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any one or
more employees, officers, directors or consultants, in connection with any of
the Corporations's dividend reinvestment or stockholder stock purchase plans, if
at such time (1) there shall have occurred any event
<PAGE> 9
of which the Corporation has actual knowledge that (a) is, or with the giving of
notice or lapse of time, or both, would be a Default or an Event of Default and
(b) in respect of which the Corporation shall not have taken reasonable steps to
cure, (2) if such Securities are held by the Trust, the Corporation shall be in
default with respect to its payment of any obligations under the Capital
Securities Guarantee or (3) the Corporation shall have given notice of its
election to exercise its right to commence an Extended Interest Payment Period,
and shall not have rescinded such Notice, and such Extended Interest Payment
Period or any extension thereof shall have commenced and be continuing.
Subject to the Corporation having received any required regulatory approvals and
the Administrators of CNBF Capital Trust I having received an opinion of counsel
to the effect that such distribution will not cause the holders of Capital
Securities to recognize gain or loss for federal income tax purposes, the
Corporation will have the right at any time to liquidate the Trust and, after
satisfaction of liabilities of creditors of the Trust as required by applicable
law, to cause the Securities to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
The Securities are issuable only in registered form without coupons in minimum
denominations of $100,000 and multiples of $1,000 in excess thereof. As provided
in the Indenture and subject to the transfer restrictions limitations as may be
contained herein and therein from time to time, this Security is transferable by
the holder hereof on the Security Register of the Corporation, upon surrender of
this Security for registration of transfer at the office or agency of the
Corporation in Wilmington, Delaware accompanied by a written instrument or
instruments of transfer in form satisfactory to the Corporation or the Debenture
Trustee duly executed by the holder hereof or his or her attorney duly
authorized in writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be made for any
such registration of transfer, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Security, the
Corporation, the Debenture Trustee, any authenticating agent, any paying agent,
any transfer agent and the security registrar may deem and treat the holder
hereof as the absolute owner hereof (whether or not this Security shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the security registrar for the Securities) for the purpose of
receiving payment of or on account of the principal hereof and (subject to the
Indenture) interest due hereon and for all other purposes, and neither the
Corporation nor the Debenture Trustee nor any authenticating agent nor any
paying agent nor any transfer agent nor any security registrar shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest
(including Compounded Interest and Additional Sums, if any) or Liquidated
Damages, if any, on this Security, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, employee, officer or
<PAGE> 10
director, as such, past, present or future, as such, of the Corporation or of
any predecessor or successor Person to the Corporation, either directly or
through the corporation or any successor person to the Corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; if being expressly understood that all such
liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released as a condition of, and as a
consideration for, the executor of the Indenture and the issuance of the
securities.
All terms used in this Security that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES THEREOF.
<PAGE> 1
EXHIBIT 4.3
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 06/14/1999
991238248 - 3056040
CERTIFICATE OF TRUST OF
CNBF CAPITAL TRUST I
THIS Certificate of Trust of CNBF CAPITAL TRUST I (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12
Del.C. Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this
Certificate of Trust is CNBF Capital Trust I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are Wilmington Trust Company,
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY, as trustee
By: /s/ W. Chris Sponenberg
---------------------------
Name: W. CHRIS SPONENBERG
Title: ASSISTANT VICE PRESIDENT
<PAGE> 1
- --------------------------------------------------------------------------------
AMENDED AND RESTATED TRUST AGREEMENT
OF
CNBF CAPITAL TRUST I
Dated as of August 6, 1999
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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<S> <C> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.3 Reports by the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.4 Periodic Reports to Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.5 Evidence of Compliance with Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.7 Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.5 Title to Property of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.6 Powers and Duties of the Administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.8 Powers and Duties of the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.10 Certain Rights of Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.12 Execution of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.2 Responsibilities of the Sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.3 Right to Proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.4 Right to Dissolve Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
i
<PAGE> 3
ARTICLE V
TRUSTEES
<TABLE>
<S> <C> <C>
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.2 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.3 Property Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.4 Certain Qualifications of Administrators and Delaware
Trustee Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.5 Administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.6 Appointment, Removal and Resignation of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.7 Vacancies among Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.8 Effect of Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.9 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.10 Delegation of Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.12 Appointment of Administrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.2 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.3 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 7.4 Registrar, Paying Agent and Exchange Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7.5 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.6 Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.7 Outstanding Capital Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 7.8 Capital Securities in Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.9 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.10 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.11 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.2 Transfer Procedures and Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.3 Deemed Security Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 9.4 Book-Entry Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.5 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.6 Appointment of Successor Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.5 Outside Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.2 Certain Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 12.2 Meetings of the Holders; Action by Written Consent . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE XIII
REPRESENTATIONS OF PROPERTY
TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.2 Representations and Warranties of Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement; Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.3 Intention of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 15.6 Partial Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
TERMS OF FLOATING RATE CAPITAL
SECURITIES, SERIES A/SERIES B AND FLOATING
RATE COMMON SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF CAPITAL SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A2-1
</TABLE>
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Section of
Trust Trust
Indenture Agreement
Act of 1939, ----------
as amended
----------
<S> <C>
310(a) ..................................................................... 5.3
310(b) ..................................................................... 5.3(c), 5.3(d)
311(a) ..................................................................... 2.2(b)
311(b) ..................................................................... 2.2(b)
312(a) ..................................................................... 2.2(a)
312(b) ..................................................................... 2.2(b)
313 ..................................................................... 2.3
314(a) ..................................................................... 2.4; 3.6(j)
314(c) ..................................................................... 2.5
315(a) ..................................................................... 3.9
315(b) ..................................................................... 2.7(a)
315(c) ..................................................................... 3.9(a)
315(d) ..................................................................... 3.9(b)
316(a) ..................................................................... 2.6
316(c) ..................................................................... 3.6(e)
317(a) ..................................................................... 3.8(e); 3.8(h)
317(b) ..................................................................... 3.8(i); 7.5
</TABLE>
*This Cross-Reference Table does not constitute part of this Trust Agreement
and shall not affect the interpretation of any of its terms or provisions.
v
<PAGE> 7
AMENDED AND RESTATED
TRUST AGREEMENT
OF
CNBF CAPITAL TRUST I
DATED AS OF AUGUST 6, 1999
AMENDED AND RESTATED TRUST AGREEMENT ("Trust Agreement")
dated and effective as of August 6, 1999, by and among the Trustees (as defined
herein), the Sponsor (as defined herein) and the Holders (as defined herein),
from time to time, of undivided beneficial interests in the assets of the
Capital Trust to be issued pursuant to this Trust Agreement;
WHEREAS, the Trustees and the Sponsor established CNBF
Capital Trust I (the "Trust"), a trust created under the Business Trust Act (as
defined herein) pursuant to a Trust Agreement dated as of June 14, 1999 (the
"Original Trust Agreement"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on June 14, 1999, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust, investing the proceeds thereof
in certain Debentures (as defined herein) of the Debenture Issuer (as defined
herein), and engaging in only those activities necessary, advisable or
incidental thereto; and
WHEREAS, all of the Trustees and the Sponsor, by this Trust
Agreement, amend and restate each and every term and provision of the Original
Trust Agreement to provide for, among other matters, (i)the issuance of the
Common Securities by the Trust to the Sponsor, (ii) the issuance and sale of
the Capital Securities by the Trust pursuant to the Purchase Agreement, (iii)
the acquisition by the Trust from the Sponsor of all of the right, title and
interest in the Debentures, and (iv) the appointment of the Administrators;
WHEREAS, all of the Trustees and the Sponsor, by this Trust
Agreement, ratify the actions of each Trustee taken prior to the date hereof;
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Trust Agreement constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Trust Agreement and,
in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
<PAGE> 8
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) capitalized terms used in this Trust Agreement but
not defined in the preamble above or elsewhere herein have the
respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Trust Agreement has
the same meaning throughout;
(c) all references to "the Trust Agreement" or "this
Trust Agreement" are to this Trust Agreement and each Annex and
Exhibit hereto, as modified, supplemented or amended from time to
time;
(d) all references in this Trust Agreement to Articles
and Sections and Annexes and Exhibits are to Articles and Sections of
and Annexes and Exhibits to this Trust Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Trust Agreement unless otherwise
defined in this Trust Agreement or unless the context otherwise
requires;
(f) a term defined in the Indenture (as defined herein)
has the same meaning when used in this Trust Agreement unless
otherwise defined in this Trust Agreement or the context otherwise
requires; and
(g) a reference to the singular includes the plural and
vice versa.
"Administrators" has the meaning set forth in Section 5.1.
"Affiliate" has the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Exchange Agent.
"Authorized Officer" of a Person means any other Person that
is authorized to legally bind such former Person.
"Book-Entry Interest" means a beneficial interest in the
Global Capital Security registered in the name of a Clearing Agency or its
nominee, ownership and transfers of which shall be maintained and made through
book entries by a Clearing Agency as described in Section 9.4.
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<PAGE> 9
"Business Day" means any day other than a Saturday or a Sunday
or a day on which banking institutions in Wilmington, Delaware, New York, New
York, or the State of New York are authorized or required by law or executive
order to remain closed or a day on which the principal corporate trust office
of the property trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Capital Securities" means, collectively, the Series A Capital
Securities and the Series B Capital Securities.
"Capital Securities Guarantee" means, collectively, the Series
A Capital Securities Guarantee and the Series B Capital Securities Guarantee.
"Capital Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Capital Security Certificate" has the meaning set forth in
Section 9.4.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Capital Securities and in whose name or in the name of a
nominee of that organization shall be registered a global certificate and which
shall undertake to effect book entry transfers and pledges of the Capital
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Time" means the "Closing Time" as defined in the
Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if at any time after the
execution of this Trust Agreement such Commission is not existing and
performing the duties now assigned to it under applicable federal securities
laws, then the body performing such duties at such time.
"Common Securities" has the meaning specified in Section
7.1(a).
- 3 -
<PAGE> 10
"Common Securities Subscription Agreement" means the Common
Securities Subscription Agreement, dated as of the Closing Time, between the
Trust and the Sponsor relating to the Common Securities.
"Company Indemnified Person" means (a) any Administrator; (b)
any Affiliate of any Administrator; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property
Trustee at which the corporate trust business of the Property Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Trust Agreement is located at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means CNB Financial Corp., a New York
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer
of the Debentures under the Indenture.
"Debenture Subscription Agreement" means the Debenture
Subscription Agreement, dated as of the Closing Time, between the Debenture
Issuer and the Trust in respect of the Debentures.
"Debenture Trustee" means Wilmington Trust Company, a Delaware
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means, collectively, the Series A Debentures and
the Series B Debentures.
"Default" means an event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Definitive Capital Securities" has the meaning set forth in
Section 7.3(c).
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders in
accordance with Section 6.1.
- 4 -
<PAGE> 11
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" with respect to the Securities means an
Event of Default (as defined in the Indenture) that has occurred and is
continuing with respect to the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Exchange Agent" has the meaning set forth in Section 7.4.
"Exchange Offer" means the offer that may be made pursuant to
the Registration Rights Agreement (i) by the Trust to exchange Series B Capital
Securities for Series A Capital Securities and (ii) by the Debenture Issuer to
exchange Series B Debentures for Series A Debentures and to execute the Series
B Capital Securities Guarantee in respect of the Series B Capital Securities.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Capital Security'' has the meaning set forth in
Section 7.3(a).
"Holder" means a Person in whose name a Security or Successor
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of the Closing Time,
between the Debenture Issuer and the Debenture Trustee, as amended from time to
time.
"Initial Optional Redemption Date" has the meaning set forth
in Section 4(b) of Annex I hereto.
"Initial Purchaser" has the meaning specified in the Purchase
Agreement.
"Investment Company" means an investment company as defined in
the Investment Company Act.
- 5 -
<PAGE> 12
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in
Section 4(c) of Annex I hereto.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Like Amount" has the meaning set forth in Section 3 of Annex
I hereto.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount" means, with respect to the
Trust Securities, except as provided in the terms of the Capital Securities or
by the Trust Indenture Act, Holders of outstanding Trust Securities voting
together as a single class or, as the context may require, Holders of
outstanding Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Distributions
to the date upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"Offering Memorandum" has the meaning set forth in Section
3.6(b)(i).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, the Chief Executive Officer, the President,
an Executive or Senior Vice President, or a Vice President, and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary. Any Officers' Certificate delivered by the Trust shall be
signed by at least one Administrator. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) statement by each officer signing the Officers'
Certificate that such officer has read the covenants or conditions and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in rendering
the Officers' Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Sponsor or any Affiliate of the
Sponsor.
- 6 -
<PAGE> 13
"Participants" has the meaning specified in Section 7.3(b).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"PORTAL" has the meaning set forth in Section 3.6(b) (iii).
"Property Trustee" has the meaning set forth in Section
5.3(a).
"Property Trustee Account" has the meaning set forth in
Section 3.8(c)(i).
"Purchase Agreement" means the Purchase Agreement relating to
the Capital Securities, dated August 4, by and among the Trust, the Debenture
Issuer and the Initial Purchaser named therein.
"QIBs" shall mean qualified institutional buyers as defined in
Rule 144A.
"Quorum" means a majority of the Administrators or, if there
are only two Administrators, both of them.
"Redemption Price" has the meaning set forth in Section 4(a)
of Annex I hereto.
"Registrar" has the meaning set forth in Section 7.4.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of [_________], by and among the Trust, the Debenture
Issuer and the Initial Purchaser named therein, as amended from time to time.
"Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Regulatory Capital Event" has the meaning set forth in
Section 4(c) of Annex I hereto.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means any officer within the Corporate
Trust Office of the Property Trustee with direct responsibility for the
administration of this
- 7 -
<PAGE> 14
Trust Agreement and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Restricted Capital Security" means a Capital Security
required by Section 9.2 to contain a Restricted Securities Legend.
"Restricted Definitive Capital Securities" has the meaning set
forth in Section 7.3(c).
"Restricted Securities Legend" has the meaning set forth in
Section 9.2(i).
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act,
or any successor rule or regulation.
"Rule 144" means Rule 144 under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities" or "Trust Securities" means the Common Securities
and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee
and the Capital Securities Guarantee.
"Series A Capital Securities" has the meaning specified in
Section 7.1(a).
"Series A Capital Securities Guarantee" means the Series A
Capital Securities Guarantee Agreement, dated as of the Closing Time, by, CNB
Financial Corp. in respect of the Series A Capital Securities.
"Series A Debentures" means the Floating Rate Junior
Subordinated Deferrable Interest Debentures due September 30, 2029, Series A,
of the Debenture Issuer issued pursuant to the Indenture.
"Series B Capital Securities" has the meaning specified in
Section 7.1(a).
- 8 -
<PAGE> 15
"Series B Capital Securities Guarantee" means the Series B
Capital Securities Guarantee Agreement to be entered into in connection with
the Exchange Offer by CNB Financial Corp., in respect of the Series B Capital
Securities.
"Series B Debentures" means the Floating Rate Junior
Subordinated Deferrable Interest Debentures due September 30, 2029, Series B,
of the Debenture Issuer to be issued pursuant to the Indenture in connection
with the Exchange Offer.
"Special Event" has the meaning set forth in Section 4(c) of
Annex I hereto.
"Sponsor" means CNB Financial Corp., a New York corporation,
or any successor entity resulting from any merger, consolidation, amalgamation
or other business combination, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in
Section 5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section
3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in
Section 3.8(f)(ii).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i).
"Super Majority" has the meaning set forth in Section 2.6(a)
(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex
I hereto.
"25% in Liquidation Amount" means, with respect to the Trust
Securities, except as provided in the terms of the Capital Securities or by the
Trust Indenture Act, Holders of outstanding Trust Securities voting together as
a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 25% or more of the aggregate liquidation
amount (including the amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the
relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury Department, as such regulations may be amended from time
to time (including corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
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"Trust Property" means (a) the Debentures, (b) any cash on
deposit in or owing to the Property Trustee Account, (c) all proceeds and
rights in respect of the foregoing and (d) any other property and assets for
the time being held or deemed to be held by the Property Trustee pursuant to
this Trust Agreement.
"Trustee" or "Trustees" means each Person who has signed this
Trust Agreement as a trustee, so long as such Person shall continue as a
trustee of the Trust in accordance with the terms hereof, and all other Persons
who may from time to time be duly appointed, qualified and serving as Trustees
in accordance with the provisions hereof, and references herein to a Trustee or
the Trustees shall refer to such Person or Persons solely in their capacity as
trustees hereunder.
"Unrestricted Global Capital Security" has the meaning set
forth in Section 9.2(b).
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Trust Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Trust
Agreement in order for this Trust Agreement to be qualified under the
Trust Indenture Act and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Trust
Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in the
assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrators on behalf
of the Trust shall provide the Property Trustee, unless the Property
Trustee is Registrar for the Securities with such information as is
required by Section 312(a) of the Trust Indenture Act at the times and
in the manner provided in Section 312(a). The Property Trustee shall
preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it
receives in the capacity as Paying Agent (if acting in such capacity),
provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
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(b) The Property Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after the date hereof, and no later than the
anniversary date hereof in each succeeding year, the Property Trustee shall
provide to the Holders of the Trust Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrators on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 (if any) of the Trust Indenture Act
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrators on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent provided for in this Trust Agreement that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in Liquidation Amount of
Capital Securities may, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default in respect of the Capital
Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the
Event of Default under the Trust Agreement shall also not be
waivable; or
(ii) requires the consent or vote of greater than
a majority in aggregate principal amount of the holders of the
Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under the Trust Agreement may
only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Capital
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
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The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such Default shall cease to exist, and any Event of Default with respect to the
Capital Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other Default or an Event of Default with respect to the Capital
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Capital Securities of an Event of Default with respect to the Capital
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Trust Agreement without any further act,
vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in Liquidation Amount of
the Common Securities may, by vote, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to
the Common Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Trust Agreement as
provided below in this Section 2.6(b), the Event of Default
under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of a Super
Majority to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under the Trust Agreement as provided below in this Section
2.6(b), the Event of Default under the Trust Agreement may
only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the Common
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and their consequences if all Events of Default with respect
to the Capital Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise
eliminated, the Property Trustee will be deemed to be acting solely on behalf
of the Holders of the Capital Securities and only the Holders of the Capital
Securities will have the right to direct the Property Trustee in accordance
with the terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act are hereby expressly excluded from this Trust Agreement and the
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such Default shall
cease to exist and any Event of Default with respect to the Common Securities
arising
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therefrom shall be deemed to have been cured for every purpose of this Trust
Agreement, but no such waiver shall extend to any subsequent or other Default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture
by the Property Trustee, at the direction of the Holders of the
Capital Securities, constitutes a waiver of the corresponding Event of
Default under this Trust Agreement. The foregoing provisions of this
Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act
is hereby expressly excluded from this Trust Agreement and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Default; Notice.
(a) The Property Trustee shall, within 90 days after a
Responsible Officer obtains actual knowledge of the occurrence of a
Default with respect to the Securities, transmit by mail, first class
postage prepaid, to the Holders and the Administrators, notices of all
such Defaults, unless such Defaults have been cured before the giving
of such notice or previously waived.
(b) The Property Trustee shall not be deemed to have
knowledge of any Default or Event of Default except:
(i) a Default or Event of Default under Sections
5.01(a) (other than the payment of Compounded Interest,
Additional Sums and Liquidated Damages) and 5.01(b) of the
Indenture; or
(ii) any Default or Event of Default as to which
the Property Trustee shall have received written notice or of
which a Responsible Officer charged with the administration of
the Trust Agreement shall have actual knowledge.
(c) Within five Business Days after a Responsible Officer
obtains actual knowledge of the occurrence of any Event of Default,
the Property Trustee shall transmit notice of such Event of Default to
the Holders of the Capital Securities, the Administrators and the
Sponsor, unless such Event of Default shall have been cured or waived.
The Sponsor and the Administrators shall file annually with the
Property Trustee a certification as to whether or not they are in
compliance with all the conditions and covenants applicable to them
under this Trust Agreement.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named CNBF Capital Trust I as such name may be
modified from time to time by the Administrators following written notice to
the
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Delaware Trustee, the Property Trustee and the Holders. The Trust's activities
may be conducted under the name of the Trust or any other name deemed advisable
by the Administrators.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o CNB
Financial Corp., 24 Church Street, Canajoharie, NY 13317 or such other address
as the Administrators may designate.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities, (b) use the proceeds from the sale of the Securities
to acquire the Debentures, (c) to fulfill obligations under the Registration
Rights Agreement and engage in the Exchange Offer, (d) maintain its status as a
grantor trust for federal income tax purposes, and (e) except as otherwise
limited herein, to engage in only those other activities necessary, advisable
or incidental thereto, including without limitation, those activities specified
in Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, mortgage or
pledge any of its assets, or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Trust Agreement,
the Property Trustee, the Delaware Trustee and the Administrators shall carry
out the purposes of the Trust. Notwithstanding anything herein, it is the
intent of the parties hereto that the Administrators shall not be trustees or,
to the fullest extent permitted by law, fiduciaries with respect to the Trust
and this Trust Agreement shall be construed in a manner consistent with such
intent. The Property Trustee shall have the right and power to perform those
duties assigned to the Administrators. An action taken by the Property
Trustee in accordance with its powers shall constitute the act of and serve to
bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no
Person shall be required to inquire into the authority of the Trustees to bind
the Trust. Persons dealing with the Trust are entitled to rely conclusively on
the power and authority of the Trustees as set forth in this Trust Agreement.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise provided in this
Trust Agreement, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
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SECTION 3.6 Powers and Duties of the Administrators.
The Administrators shall have the power and authority, and are
hereby authorized:
(i) in connection with the issue and sale of the
Capital Securities and the consummation of the Exchange Offer,
at the direction of the Sponsor, to:
(A) assist in preparation of an offering
memorandum (the "Offering Memorandum") in preliminary
and final form prepared by the Sponsor, in relation
to the offering and sale of Series A Capital
Securities to QIBs in reliance on Rule 144A and to
institutional "accredited investors" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities
Act), and to execute and file with the Commission, at
such time as is determined by the Sponsor, any
Registration Statement, including any amendments
thereto, as contemplated by the Registration Rights
Agreement;
(B) assist in compliance state securities or blue
sky law to be necessary in order to qualify or
register all or part of the Capital Securities in any
State in which the Sponsor has determined to qualify
or register such Capital Securities for sale;
(C) assist in connection with an application to
permit the Capital Securities to trade or be quoted
or listed in or on the Private Offerings, Resales and
Trading through Automated Linkages ("PORTAL") Market;
and
(D) if required, execute and file with the
Commission a registration statement on Form 8-A,
including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Capital
Securities under Section 12(b) or 12(g) of the
Exchange Act, as the case may be.
(ii) to take all actions and perform such duties
as may be required of the Administrators pursuant to the terms
of the Securities;
(iii) to take such ministerial acts at the
direction of the Sponsor to cause the Trust to comply with the
Trust's obligations under the Trust Indenture Act;
(iv) to give the certificate required by Section
314(a)(4) of the Trust Indenture Act to the Property Trustee,
which certificate may be executed by any Administrator;
(v) to incur expenses that are necessary or
incidental to carry out any of the purposes of the Trust;
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(vi) to act as, or appoint another Person to act
as, Registrar and Exchange Agent for the Securities or to
appoint a Paying Agent for the Securities as provided in
Section 7.4 except for such time as such power to appoint a
Paying Agent is vested in the Property Trustee;
(vii) to give prompt written notice to the Property
Trustee and to the Holders of any notice received from the
Debenture Issuer of its election to defer payments of interest
on the Debentures by extending the interest payment period
under the Indenture;
(viii) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as
a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the
Holders or to enable the Trust to effect the purposes for
which the Trust was created;
(ix) along with the Property Trustee to take any
action, not inconsistent with this Trust Agreement or with
applicable law, that the Administrators determine to be
necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.6, including, but not
limited to:
(A) causing the Trust not to be deemed to be an
Investment Company required to be registered under
the Investment Company Act;
(B) causing the Trust to continue to be
classified for United States federal income tax
purposes as a grantor trust; and
(C) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as
indebtedness of the Debenture Issuer for United
States federal income tax purposes;
(x) to take all action necessary to consummate
the Exchange Offer or otherwise cause the Capital Securities
to be registered pursuant to an effective registration
statement in accordance with the provisions of the
Registration Rights Agreement;
(xi) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Administrators, on behalf of the
Trust; and
(xii) to execute and deliver all documents or
instruments, perform all duties and powers, and do all things
(including the incurring
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of expenses) for and on behalf of the Trust in all matters
necessary, advisable or incidental to the foregoing.
The Administrators shall not be responsible for monitoring the
compliance by the Property Trustee, the Delaware Trustee or the Sponsor with
their respective duties under this Trust Agreement, nor shall an Administrator
be liable for the default or misconduct of any other Administrators, Trustee or
the Sponsor.
The Administrators must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrators shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Administrators shall have
none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Administrators pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Property
Trustee and the Delaware Trustee) shall not, and the Administrators shall cause
the Trust not to, engage in any activity other than as required or authorized
by this Trust Agreement. The Trust shall not:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to
Holders pursuant to the terms of this Trust Agreement and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust Property for other than a Trust purpose
or execute any mortgage in respect of, or pledge, any Trust Property;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust Property or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(vii) other than as provided in this Trust Agreement or
Annex I hereto, (A) direct the time, method and place of conducting
any proceeding with respect to any remedy available to the Debenture
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Trustee, or exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (B) waive any past default
that is waivable under the Indenture, or (C) exercise any right to
rescind or annul any declaration that the principal of all the
Debentures shall be due and payable; or
(viii) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be
required unless the Trust shall have received an opinion of
independent tax counsel experienced in such matters to the effect that
such amendment, modification or termination will not cause more than
an insubstantial risk that the Trust will not be classified as a
grantor trust for United States federal income tax purposes.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by
and held of record in the name of the Property Trustee in trust for
the benefit of the Trust and the Holders. The right, title and
interest of the Property Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as
Property Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Debentures to the Administrators or to the
Delaware Trustee (if the Property Trustee does not also act as
Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated
non-interest bearing trust account in its Trust Department
(the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the
Holders and, upon the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trustee Account and make
payments or cause the Paying Agent to make payments to the
Holders from the Property Trustee Account in accordance with
Section 6.1; funds in the Property Trustee Account shall be
held uninvested until disbursed in accordance with this Trust
Agreement;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect the redemption of
the Securities to the extent the Debentures are redeemed or
mature; and
(iii) upon written notice of distribution issued by
the Administrators in accordance with the terms of the
Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect
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the distribution of the Debentures to Holders upon the occurrence of
certain events.
(d) The Property Trustee shall take all actions and
perform such duties, in addition to those set out in Section 3.6(ix),
as may be specifically required of the Property Trustee pursuant to
the terms of this Trust Agreement and the Securities.
(e) Subject to Section 3.9(a), the Property Trustee shall
take any Legal Action which arises out of or in connection with an
Event of Default of which a Responsible Officer has actual knowledge
or the Property Trustee's duties and obligations under this Trust
Agreement or the Trust Indenture Act may so require; and if the
Property Trustee shall have failed to take such Legal Action following
a written request from the Holders, the Holders of the Capital
Securities may, to the fullest extent permitted by law, take such
Legal Action, to the same extent as if such Holders of Capital
Securities held an aggregate principal amount of Debentures equal to
the aggregate liquidation amount of such Capital Securities, without
first proceeding against the Property Trustee or the Trust; provided,
however, that if an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer
to pay the principal of or interest (including Compounded Interest and
Additional Sums, if any) or Liquidated Damages, if any, on the
Debentures on the date such principal, or interest (including
Compounded Interest and Additional Sums, if any) or Liquidated
Damages, if any, is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Capital Securities may
directly institute a proceeding for enforcement of payment to such
Holder of the principal of or interest (including Compounded Interest
and Additional Sums, if any) or Liquidated Damages, if any, on the
Debentures having a principal amount equal to the aggregate
liquidation amount of the Capital Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the Holders of the
Common Securities will be subrogated to the rights of such Holder of
Capital Securities to the extent of any payment made by the Debenture
Issuer to such Holder of Capital Securities in such Direct Action.
Except as provided herein, Holders of Capital Securities will not be
able to exercise directly any other remedy available to the holders of
the Debentures.
(f) The Property Trustee shall continue to serve as a
Trustee until either:
(i) the Trust has been completely liquidated and
the proceeds of the liquidation distributed to the Holders
pursuant to the terms of the Securities and this Trust
Agreement; or
(ii) a successor Property Trustee has been
appointed and has accepted that appointment in accordance with
Section 5.6 (a "Successor Property Trustee").
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(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of
Debentures under the Indenture and, if an Event of Default actually
known to a Responsible Officer occurs and is continuing, the Property
Trustee shall, for the benefit of Holders, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant
to the terms of this Trust Agreement and the Securities.
(h) The Property Trustee shall be authorized to undertake
any actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying
Agent, the Property Trustee may authorize one or more Persons to act
as additional Paying Agents and to pay Distributions, redemption
payments or liquidation payments on behalf of the Trust with respect
to all Securities and any such Paying Agent shall comply with Section
317(b) of the Trust Indenture Act. Any such additional Paying Agent
may be removed by the Property Trustee at any time the Property
Trustee remains as Paying Agent and a successor Paying Agent or
additional Paying Agents may be (but are not required to be) appointed
at any time by the Property Trustee while the Property Trustee is
acting as Paying Agent.
(j) Subject to this Section 3.8, the Property Trustee
shall have none of the duties or liabilities, assigned to the
Administrators in Section 3.6.
Notwithstanding anything expressed or implied to the contrary
in this Trust Agreement or any Annex or Exhibit hereto, (i) the Property
Trustee must exercise the powers set forth in this Section 3.8 in a manner that
is consistent with the purposes and functions of the Trust set out in Section
3.3, and (ii) the Property Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any
Event of Default (of which, other than in the case of Events of
Default under Sections 5.01(a) and 5.01(b) of the Indenture, a
Responsible Officer of the Property Trustee has actual knowledge) and
after the curing or waiving of all such Events of Default that may
have occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Agreement and in the Securities
and no implied covenants shall be read into this Trust Agreement
against the Property Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer has actual knowledge, the Property Trustee shall
exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
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(b) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event of
Default (of which, other than in the case of Events of Default
under Sections 5.01(a) and 5.01(b) of the Indenture, a
Responsible Officer of the Property Trustee has actual
knowledge) and after the curing or waiving of all such Events
of Default that may have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express
provisions of this Trust Agreement and in the
Securities and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this
Trust Agreement and in the Securities, and no implied
covenants or obligations shall be read into this
Trust Agreement against the Property Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Property Trustee and conforming to the
requirements of this Trust Agreement; provided,
however, that in the case of any such certificates or
opinions that by any provision hereof are
specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty
to examine the same to determine whether or not on
their face they conform to the requirements of this
Trust Agreement;
(ii) the Property Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
a Majority in Liquidation Amount of the Securities relating to
the time, method and place of conducting any proceeding for
any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under
this Trust Agreement;
(iv) no provision of this Trust Agreement shall
require the Property Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if the Property Trustee shall
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have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under
the terms of this Trust Agreement or adequate indemnity
against such risk or liability is not reasonably assured to
it;
(v) the Property Trustee's sole duty with respect
to the custody, safekeeping and physical preservation of the
Debentures and the Property Trustee Account shall be to deal
with such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to
the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable for
any interest on any money received by it except as it may
otherwise agree in writing with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds held
by it except in relation to the Property Trustee Account
maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrators or the
Sponsor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for any
default or misconduct of the Administrators or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely
and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor by this
Trust Agreement may be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the
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Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly
delivered by the Sponsor;
(iv) the Property Trustee shall have no duty to
see to any recording, filing or registration of any instrument
(including any financing or continuation statement or any
filing under tax or securities laws) or any rerecording,
refiling or registration thereof;
(v) the Property Trustee may consult with counsel
or other experts of its selection, and the advice or opinion
of such counsel and experts with respect to legal matters or
advice within the scope of such experts' area of expertise
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or
opinion; such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees; and the
Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Trust Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the Property
Trustee security or indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including
reasonable attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Property Trustee; provided,
however, that, nothing contained in this Section 3.10(a)(vi)
shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust
Agreement;
(vii) the Property Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document unless requested in writing to do so by one or
more Holders, but the Property Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians, nominees
or attorneys, and the Property
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Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(ix) any action taken by the Property Trustee or
its agents hereunder shall bind the Trust and the Holders, and
the signature of the Property Trustee or its agents alone
shall be sufficient and effective to perform any such action
and no third party shall be required to inquire as to the
authority of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this Trust
Agreement, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be
entitled to direct the Property Trustee under the terms of the
Securities in respect of such remedy, right or action, (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in
accordance with such instructions;
(xi) except as otherwise expressly provided by
this Trust Agreement, the Property Trustee shall not be under
any obligation to take any action that is discretionary under
the provisions of this Trust Agreement; and
(xii) The Property Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in
good faith, without negligence or willful misconduct, and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Trust
Agreement.
(b) No provision of this Trust Agreement shall be deemed
to impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be
illegal, or in which the Property Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act
or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall
be construed to be a duty.
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SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Trust Agreement
other than Section 5.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Trustees described in this Trust Agreement (except as
required under the Business Trust Act). Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act. In the
event the Delaware Trustee shall at any time be required to take any action or
perform any duty hereunder, the Delaware Trustee shall be entitled to the
benefits of Section 3.9(b)(ii) to (viii), inclusive, and Section 3.10. No
implied covenants or obligations shall be read into this Trust Agreement
against the Delaware Trustee.
SECTION 3.12 Execution of Documents.
Unless otherwise required by applicable law, each
Administrator, individually, is authorized to execute and deliver on behalf of
the Trust any documents, agreements, instruments or certificates that the
Administrators have the power and authority to execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Trust Agreement and the
Securities shall be taken as the statements of the Trust, and the Trustees and
the Administrators do not assume any responsibility for their correctness. The
Trustees make no representations as to the value or condition of the Trust
Property or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Trust Agreement or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of
Article VIII hereof, shall have existence up to September 30, 2029.
SECTION 3.15 Mergers.
(a) The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety
to any Person, except as described in Section 3.15(b) and (c) and
except with respect to the distribution of Debentures to Holders
pursuant to Section 8.1(a)(iii) of this Trust Agreement or Section 3
of Annex I.
(b) The Trust may, at the request of the Sponsor, with
the consent of the Holders of a Majority in Liquidation Amount of the
Capital Securities and without the consent of the Delaware Trustee or
the Property Trustee, merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to, a trust organized
as such under the laws of any State; provided that:
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(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities") so long as the Successor Securities
rank the same as the Securities rank in priority with respect
to Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Property Trustee with respect to the Debentures;
(iii) the Successor Securities (excluding any securities
substituted for the Common Securities) are listed, quoted or included
for trading, or any Successor Securities will be listed, quoted or
included for trading upon notification of issuance, on any national
securities exchange or with any other organization on which the
Capital Securities are then listed, quoted or included;
(iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Securities) or the Debentures to
be downgraded by any nationally recognized statistical rating
organization that publishes a rating on the Capital Securities or the
Debentures;
(v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect (other
than with respect to any dilution of the interests of such Holders or
holders, as the case may be, in the Successor Entity);
(vi) the Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received
an opinion of independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and
privileges of the Holders (including the holders of
any Successor Securities) in any material respect
(other than with
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respect to any dilution of the interests of such
Holders or holders, as the case may be, in the
Successor Entity);
(B) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor the Successor Entity
will be required to register as an Investment
Company; and
(viii) the Sponsor or any permitted successor or
assignee owns all of the common securities of the Successor
Entity and guarantees the obligations of the Successor Entity
under the Successor Securities at least to the extent provided
by the Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in aggregate liquidation
amount of the Securities, consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to, any other
Person or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation,
merger, replacement, conveyance, transfer or lease would cause the
Trust or the Successor Entity not to be classified as a grantor trust
for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time, pursuant to the Common Securities
Subscription Agreement, the Sponsor will purchase all of the Common Securities
then issued by the Trust, in an amount equal to 4% of the liquidation amount of
the Series A Capital Securities issued and sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare the Offering Memorandum, in preliminary
and final form, and to prepare for filing by the Trust with the
Commission and execute any Registration Statement, including any
amendments thereto, as contemplated by the Registration Rights
Agreement;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Capital
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing and execute any
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documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of
any such States;
(c) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A, including any
amendments thereto, relating to the registration of the Capital
Securities under Section 12(b) or 12(g) of the Exchange Act, as the
case may be, including any amendments thereto; and
(d) to negotiate the terms of, execute, enter into and
deliver the Purchase Agreement and the Registration Rights Agreement.
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event;
(f) to establish a record date with respect to all
actions to be taken hereunder that require a record date to be
established, including and with respect to, for the purposes of
Section 316(c) of the Trust Indenture Act, Distributions, voting
rights, redemptions and exchanges, and to issue relevant notices to
the Holders with respect to such actions and applicable record dates.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of Capital
Securities, in the event that a failure of the Trust to pay Distributions on
the Capital Securities is attributable to the failure of the Debenture Issuer
to pay the principal of or interest on the Debentures, to institute a
proceeding directly against the Debenture Issuer for enforcement of its payment
obligations in respect of the Debentures.
SECTION 4.4 Right to Dissolve Trust.
The Sponsor will have the right at any time to dissolve the
Trust and, after satisfaction of liabilities to creditors of the Trust as
required by applicable law, to cause the Debentures to be distributed to the
Holders in liquidation of the Trust. Such right is subject to the Sponsor's
having received all required regulatory approvals.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be two (2), and:
(a) at any time before the issuance of any Securities,
the Sponsor may, by written instrument, increase or decrease the
number of Trustees; and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a
Majority in Liquidation
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Amount of the Common Securities voting as a class at a meeting of the
Holders of the Common Securities;
provided, however, that, the number of Trustees shall in no event be less than
two (2); provided further that (1) one Trustee, in the case of a natural
person, shall be a person who is a resident of the State of Delaware or that,
if not a natural person, is an entity which has its principal place of business
in the State of Delaware (the "Delaware Trustee"); and (2) one Trustee shall be
the Property Trustee for so long as this Trust Agreement is required to qualify
as an indenture under the Trust Indenture Act, and such Trustee may also serve
as Delaware Trustee if it meets the applicable requirements in which event the
number of Trustees shall be one (1). Notwithstanding the above, unless an Event
of Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be
located, the Property Trustee shall have power to appoint one or more Persons
either to act as a co-trustee, jointly with the Property Trustee, of all or any
part of the Trust Property, or to act as separate trustee of any such property,
in either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of this Trust Agreement.
SECTION 5.2 Delaware Trustee.
For so long as required by the Business Trust Act, the
Delaware Trustee shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and otherwise
meets the requirements of applicable law,
provided, however, that, if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application.
The initial Delaware Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attn.: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
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SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the
"Property Trustee") which shall act as Property Trustee and which
shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as an
indenture trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall
immediately resign in the manner and with the effect set forth in
Section 5.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 330(b) of the
Trust Indenture Act, the Property Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in Section 310(b) of
the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
(d) The Capital Securities Guarantee shall be deemed to
be specifically described in this Trust Agreement for purposes of
clause (i) of the first proviso contained in Section 310 (b) of the
Trust Indenture Act.
(e) The initial Property Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attn.: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
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SECTION 5.4 Certain Qualifications of Administrators and Delaware Trustee
Generally.
Each Administrator and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Administrators.
The initial Administrators shall be:
Donald L. Brass
Peter J. Corso
Stephen E. Souky
c/o CNB Financial Corp.
24 Church Street
Canajoharie, NY 13317
Telephone: (518) 673-3243
(a) Except as expressly set forth in this Trust Agreement
and except if a meeting of the Administrators is called with respect
to any matter over which the Administrators have power to act, any
power of the Administrators may be exercised by, or with the consent
of, any one such Administrator.
(b) Unless otherwise required by the applicable law, any
Administrator acting alone is authorized to execute on behalf of the
Trust any documents which the Administrators have the power and
authority to cause the Trust to execute pursuant to Section 3.6.
(c) An Administrator may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age
of 21 his or her power for the purposes of signing any documents which
the Administrators have power and authority to cause the Trust to
execute pursuant to Section 3.6.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b) hereof and to Section 6(b)
of Annex I hereto, Trustees may be appointed or removed without cause
at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor;
(ii) unless an Event of Default shall have
occurred and be continuing after the issuance of any
Securities, for cause by vote of the Holders of a Majority in
Liquidation Amount of the Capital Securities voting as a class
at a meeting of the Holders of the Capital Securities; and
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(iii) if an Event of Default shall have occurred
and be continuing after the issuance of the Securities, with
or without cause, by vote of Holders of a Majority in
Liquidation Amount of the Capital Securities voting as a class
at a meeting of Holders of the Capital Securities.
(b) (i) The Trustee that acts as Property Trustee
shall not be removed in accordance with Section 5.6(a) until a
Successor Property Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Property
Trustee and delivered to the removed Property Trustee, the
Administrators and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee
shall not be removed in accordance with this Section 5.6(a) until a successor
Trustee possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the removed Delaware Trustee, the Property
Trustee (if the removed Delaware Trustee is not also the Property Trustee), the
Administrators and the Sponsor.
(c) A Trustee appointed to office shall hold office until
his successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the other Trustees, the Sponsor and the
Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Trust,
the Sponsor, the Delaware Trustee (if the resigning Property
Trustee is not also the Delaware Trustee) and the resigning
Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the
Holders; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Property Trustee (if the resigning Delaware Trustee is not
also the Property Trustee), the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities or, if an Event
of Default shall have occurred and be continuing after the issuance of
the Securities, the
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Holders of the Capital Securities shall use their best efforts to
promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this
Section 5.6.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as
provided in this Section 5.6 within 60 days after delivery of an
instrument of resignation or removal, the Property Trustee or Delaware
Trustee resigning or being removed, as applicable, may petition any
court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem
proper to prescribe, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
(g) At the time of resignation or removal of the Property
Trustee or the Delaware Trustee, the Sponsor shall pay to such Trustee
any amounts that may be owed to such Trustee pursuant to Section 10.4.
(h) Any successor Delaware Trustee shall file an
amendment to the Certificate of Trust with the Secretary of State of
the State of Delaware identifying the name and principal place of
business of such Successor Delaware Trustee in the State of Delaware.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.l, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrators or,
if there are more than two, a majority of the Administrators shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, liquidate or annul the Trust or to
terminate this Trust Agreement. Whenever a vacancy in the number of
Administrators shall occur, until such vacancy is filled by the appointment of
an Administrator in accordance with Section 5.6, the Administrators in office,
regardless of their number, shall have all the powers granted to the
Administrators and shall discharge all the duties imposed upon the
Administrators by this Trust Agreement.
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SECTION 5.9 Meetings.
If there is more than one Administrator, meetings of the
Administrators shall be held from time to time upon the call of any
Administrator. Regular meetings of the Administrators may be held at a time and
place fixed by resolution of the Administrators. Notice of any in-person
meetings of the Administrators shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before such meeting. Notice of any telephonic meetings of
the Administrators or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an Administrator
at a meeting shall constitute a waiver of notice of such meeting except where
an Administrator attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Trust
Agreement, any action of the Administrators may be taken at a meeting by vote
of a majority of the Administrators present (whether in person or by telephone)
and eligible to vote with respect to such matter, provided that, a Quorum is
present, or without a meeting by the unanimous written consent of the
Administrators. In the event there is only one Administrator, any and all
action of such Administrator shall be evidenced by a written consent of such
Administrator.
SECTION 5.10 Delegation of Power.
(a) Any Administrator may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 3.6, including any registration
statement or amendment thereto filed with the Commission, or making
any other governmental filing.
(b) The Administrators shall have power to delegate from
time to time to such of their number or to officers of the Trust the
doing of such things and the execution of such instruments either in
the name of the Trust or the names of the Administrators or otherwise
as the Administrators may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Property Trustee or
the Delaware Trustee, as the case may be, hereunder, without the execution or
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filing of any paper or any further act on the part of any of the parties
hereto, provided such Person shall be otherwise qualified and eligible under
this Article and provided further that such Person shall file an amendment to
the Certificate of Trust with the Delaware Secretary of State as contemplated
in Section 5.6(h).
SECTION 5.12 Appointment of Administrators.
(a) The Administrators shall be appointed by the Holders
of a Majority in Liquidation Amount of the Common Securities and may
be removed by the Holders of a Majority in Liquidation Amount of the
Common Securities or may resign at any time. Upon any resignation or
removal, the Sponsor shall appoint a successor Administrator. Each
Administrator shall execute this Trust Agreement thereby agreeing to
comply with, and be legally bound by, all of the terms, conditions and
provisions of this Trust Agreement. If at any time there is no
Administrator, the Property Trustee or any Holder who has been a
Holder of Trust Securities for at least six months may petition any
court of competent jurisdiction for the appointment of one or more
Administrators.
(b) Whenever a vacancy in the number of Administrators
shall occur, until such vacancy is filled by the appointment of an
Administrator in accordance with this Section 8.20, the Administrators
in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrators and shall discharge all the duties imposed upon the
Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision
of this Trust Agreement, in the event any Administrator who is a
natural person dies or becomes, in the opinion of the Holders of a
Majority in Liquidation Amount of the Common Securities, incompetent,
or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filed by the remaining Administrators, if there were
at least two of them prior to such vacancy, and by the Sponsor, if
there were not two such Administrators immediately prior to such
vacancy (with the successor in each case being a Person who satisfies
the eligibility requirement for Administrators as the case may be, set
forth in Section 5.4).
Except as otherwise provided in this Trust Agreement, or by
applicable law, any one Administrator may execute any document or
otherwise take any action which the Administrators are authorized to
take under this Trust Agreement.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. If and to the extent that
the Debenture Issuer
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makes a payment of interest (including Compounded Interest and Additional Sums)
and/or principal on the Debentures held by the Property Trustee or Liquidated
Damages or any other payments pursuant to the Registration Rights Agreement
with respect to the Debentures held by the Property Trustee (the amount of any
such payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders in accordance
with the terms of the Securities.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrators shall, on behalf of the Trust,
issue one class of capital securities representing undivided preferred
beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Series A Capital Securities") and one
class of common securities representing common undivided beneficial
interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Common Securities"). The Administrators shall,
on behalf of the Trust, issue one class of capital securities
representing undivided preferred beneficial interests in the Trust
having such terms as set forth in Annex I (the "Series B Capital
Securities") in exchange for the Series A Capital Securities accepted
for exchange in the Exchange Offer, which Series B Capital Securities
shall not bear the legends required by Section 9.2(i) unless the
Holder of such Series A Capital Securities is either (A) a
broker-dealer who purchased such Series A Capital Securities directly
from the Trust for resale pursuant to Rule 144A or any other available
exemption under the Securities Act, (B) a Person participating in the
distribution of the Series A Capital Securities or (C) a Person who is
an Affiliate of the Sponsor or the Trust. The Trust shall issue no
securities or other interests in the assets of the Trust other than
the Capital Securities and the Common Securities.
(b) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Trust Agreement, the Securities so issued shall be deemed to be
validly issued, fully paid and nonassessable.
(d) Every Person, by virtue of having become a Holder or
a Capital Security Beneficial Owner in accordance with the terms of
this Trust Agreement, shall be deemed to have expressly assented and
agreed to the terms of, and shall be bound by, this Trust Agreement.
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(e) The Administrators shall execute and deliver the
Common Securities Subscription Agreement, letters, documents, or
instruments with DTC and other Clearing Agencies relating to the
Capital Securities.
(f) The Administrators shall execute, enter into and
deliver the Debenture Subscription Agreement, to acquire the Series A
Debentures with the proceeds of the sale of the Series A Capital
Securities and the Common Securities and to exchange the Series A
Debentures for a like principal amount of Series B Debentures,
pursuant to the Exchange Offer; provided, however, that the
Administrators shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the
Holders;
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust
by an Administrator. In case any Administrator of the Trust who shall
have signed any of the Securities shall cease to be such Administrator
before the Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the Person who
signed such Securities had not ceased to be such Administrator; and
any Securities may be signed on behalf of the Trust by such persons
who, at the actual date of execution of such Security, shall be the
Administrators of the Trust, although at the date of the execution and
delivery of this Trust Agreement any such person was not an
Administrator.
(b) One Administrator shall sign the Capital Securities
for the Trust by manual or facsimile signature. Unless otherwise
determined by an Administrator on behalf of the Trust, such signature
shall, in the case of Common Securities, be a manual signature.
A Capital Security shall not be valid until authenticated by
the manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Capital Security has been
authenticated under this Trust Agreement. A Common Security shall be valid
upon execution by an Administrator without any act of the Property Trustee.
Upon a written order of the Trust signed by one Administrator,
the Property Trustee shall authenticate the Capital Securities for original
issue. The aggregate number of Capital Securities outstanding at any time shall
not exceed the number set forth in Annex I hereto except as provided in Section
7.6.
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Capital Securities. An authenticating
agent may authenticate Capital Securities whenever the Property Trustee may do
so. Each reference in this Trust Agreement to authentication by the Property
Trustee includes authentication by such agent. An authenticating agent has the
same rights as the Property Trustee hereunder with respect to the Sponsor or an
Affiliate.
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SECTION 7.3 Form and Dating.
The Capital Securities shall be evidenced by one or more
certificates substantially in the form of Exhibit A-1, and the Common
Securities shall be evidenced by one or more certificates substantially in the
form of Exhibit A-2. The Property Trustee's certificate of authentication shall
be substantially in the form set forth in Exhibit A-1. Certificates
representing the Securities may be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to an Administrator,
as evidenced by the execution thereof. The Securities may have letters, "CUSIP"
or other numbers, notations or other marks of identification or designation and
such legends or endorsements required by law, stock exchange rule, agreements
to which the Trust is subject, if any, or usage, provided that, any such
notation, legend or endorsement is in a form acceptable to the Administrators,
as evidenced by their execution thereof. The Trust at the direction of the
Sponsor, shall furnish any such legend not contained in Exhibit A-1 to the
Property Trustee in writing. Each Capital Security shall be dated the date of
its authentication. The terms and provisions of the Securities set forth in
Annex I and the forms of Securities set forth in Exhibits A-1 and A-2 are part
of the terms of this Trust Agreement and, to the extent applicable, the
Property Trustee and the Sponsor, by their execution and delivery of this Trust
Agreement, expressly agree to such terms and provisions and to be bound
thereby.
(a) Global Capital Security. Capital Securities offered
and sold to QIBs in reliance on Rule 144A, as provided in the Purchase
Agreement, shall be issued in the form of a single permanent global
Capital Security in definitive, fully registered form without
distribution coupons with the appropriate global legends and
Restricted Securities Legend set forth in Exhibit A-1 hereto (the
"Global Capital Security"), which shall be deposited on behalf of the
purchasers of the Capital Securities represented thereby with the
Property Trustee, at its Corporate Trust Office, as custodian for the
Clearing Agency, and registered in the name of the Clearing Agency or
a nominee of the Clearing Agency, duly executed by the Trust and
authenticated by the Property Trustee as hereinafter provided. The
number of Capital Securities represented by the Global Capital
Security may from time to time be increased or decreased by
adjustments made on the records of the Property Trustee and the
Clearing Agency or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall
apply only to the Global Capital Security and such other Capital
Securities in global form as may be authorized by the Trust to be
deposited with or on behalf of the Clearing Agency.
An Administrator shall execute and the Property Trustee shall,
in accordance with this Section 7.3, authenticate and make available for
delivery initially a single Global Capital Security that (i) shall be
registered in the name of Cede & Co. or other nominee of such Clearing Agency,
and (ii) shall be delivered by the Property Trustee to such Clearing Agency or
pursuant to such Clearing Agency's written
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instructions or, if no such written instructions are received by the Property
Trustee, held by the Property Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Trust Agreement with respect
to the Global Capital Security held on their behalf by the Clearing Agency or
by the Property Trustee as the custodian of the Clearing Agency or under such
Global Capital Security, and the Clearing Agency may be treated by the Trust,
the Property Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Capital Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Property Trustee or any agent of the Trust or the Property Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Clearing Agency or impair, as between the Clearing Agency and its
Participants, the operation of customary practices of such Clearing Agency
governing the exercise of the rights of a holder of a beneficial interest in
the Global Capital Security.
(c) Definitive Capital Securities. Except as provided in
Section 7.9 or 9.2(f)(i), owners of beneficial interests in the Global
Capital Security will not be entitled to receive physical delivery of
certificated Capital Securities ("Definitive Capital Securities").
Purchasers of Securities who are "accredited investors" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and who are
not QIBs will receive Capital Securities in the form of individual
certificates in definitive, fully registered form without distribution
coupons and with the Restricted Securities Legend set forth in Exhibit
A-1 hereto ("Restricted Definitive Capital Securities"); provided,
however, that upon registration of transfer of such Restricted
Definitive Capital Securities to a QIB, such Restricted Definitive
Capital Securities will, unless the Global Capital Security has
previously been exchanged, be exchanged for an interest in the Global
Capital Security pursuant to the provisions of Section 9.2.
Restricted Definitive Capital Securities will bear the Restricted
Securities Legend set forth on Exhibit A-1 unless removed in
accordance with this Section 7.3 or Section 9.2.
SECTION 7.4 Registrar, Paying Agent and Exchange Agent.
The Trust shall maintain in Wilmington, Delaware (i) an office
or agency where Capital Securities may be presented for registration of
transfer ("Registrar"), (ii) an office or agency where Capital Securities may
be presented for payment ("Paying Agent") and (iii) an office or agency where
Securities may be presented for exchange ("Exchange Agent"). The Registrar
shall keep a register of the Capital Securities and of their transfer. The
Property Trustee may appoint the Registrar, the Paying Agent and the Exchange
Agent and may appoint one or more co-registrars, one or more additional paying
agents and one or more additional Exchange Agents in such other locations as it
shall determine, in each case reasonably acceptable to the Administrators. The
term "Registrar" includes any additional registrar, the term "Paying Agent"
includes any additional paying agent and the term "Exchange Agent" includes any
additional Exchange Agent. The Property Trustee may change any Paying Agent,
Registrar, co-registrar or Exchange Agent without prior notice to any Holder.
The Paying
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Agent shall be permitted to resign as Paying Agent upon 30 days' written notice
to the Property Trustee, the Administrators and the Sponsor. The Property
Trustee shall notify the Trust of the name and address of any Agent not a party
to this Trust Agreement. If the Property Trustee fails to appoint or maintain
another entity as Registrar, Paying Agent or Exchange Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as Paying
Agent, Registrar, or Exchange Agent. The Trust shall act as Paying Agent,
Registrar and Exchange Agent for the Common Securities.
The Property Trustee initially appoints the Property Trustee
as Registrar, Paying Agent, Exchange Agent and Calculation Agent for the
Capital Securities.
The Calculation Agent shall determine the Coupon Rate (as
defined in Annex I hereto) in accordance with the terms of the Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the
Property Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Property Trustee all money held by the Paying
Agent for the payment of liquidation amounts or Distributions, and will notify
the Property Trustee if there are insufficient funds for such purpose. While
any such insufficiency continues, the Property Trustee may require a Paying
Agent to pay all money held by it to the Property Trustee. The Trust at any
time may require a Paying Agent to pay all money held by it to the Property
Trustee and to account for any money disbursed by it. Upon payment over to the
Property Trustee, the Paying Agent (if other than the Trust or an Affiliate of
the Trust) shall have no further liability for the money. If the Trust or the
Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder claims that a Security owned by it has been lost,
destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or in the case of the Capital Securities to the
Property Trustee, an Administrator shall execute and the Property Trustee shall
authenticate and make available for delivery a replacement Security if the
Property Trustee's requirements are met. An indemnity bond must be provided by
the Holder which, in the judgment of the Property Trustee, is sufficient to
protect the Trustees, the Sponsor, the Trust or any authenticating agent from
any loss which any of them may suffer if a Security is replaced. The Trust may
charge such Holder for its expenses in replacing a Security and the
Administrators or the Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
SECTION 7.7 Outstanding Capital Securities.
The Capital Securities outstanding at any time are all the
Capital Securities authenticated by the Property Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
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If a Capital Security is replaced, paid or purchased pursuant
to Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Capital
Security is held by a bona fide purchaser.
If Capital Securities are considered paid in accordance with
the terms of this Trust Agreement, they cease to be outstanding and
Distributions on them shall cease to accumulate.
A Capital Security does not cease to be outstanding because
one of the Trust, the Sponsor or an Affiliate of the Sponsor holds the
Security.
SECTION 7.8 Capital Securities in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Capital
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be
fully protected in relying on any such direction, waiver or consent, only
Securities which the Property Trustee actually knows are so owned shall be so
disregarded.
SECTION 7.9 Temporary Securities.
(a) Until Definitive Capital Securities are ready for
delivery, the Trust may prepare and, in the case of the Capital
Securities, the Property Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
Definitive Capital Securities but may have variations that the Trust
considers appropriate for temporary Securities. Without unreasonable
delay, the Trust shall prepare and, in the case of the Capital
Securities, the Property Trustee shall authenticate Definitive Capital
Securities in exchange for temporary Securities.
(b) The Global Capital Security deposited with the
Clearing Agency or with the Property Trustee as custodian for the
Clearing Agency pursuant to Section 7.3 shall be transferred to the
beneficial owners thereof in the form of Definitive Capital Securities
only if such transfer complies with Section 9.2 and (i) the Clearing
Agency notifies the Sponsor that it is unwilling or unable to continue
as Clearing Agency for such Global Capital Security or if at any time
such Clearing Agency ceases to be a "clearing agency" registered under
the Exchange Act, and, in each case, a clearing agency is not
appointed by the Sponsor within 90 days of receipt of such notice or
of becoming aware of such condition, (ii) a Default or an Event of
Default has occurred and is continuing, or (iii) the Trust at its sole
discretion elects to cause the issuance of Definitive Capital
Securities.
(c) Any Global Capital Security that is transferable to
the beneficial owners thereof in the form of Definitive Capital
Securities pursuant to this
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Section 7.9 shall be surrendered by the Clearing Agency to the
Property Trustee to be so transferred, in whole or from time to time
in part, without charge, and the Property Trustee shall authenticate
and make available for delivery, upon such transfer of each portion of
such Global Capital Security, an equal aggregate liquidation amount of
Capital Securities of authorized denominations in the form of
Definitive Capital Securities. Any portion of the Global Capital
Security transferred pursuant to this Section shall be registered in
such names as the Clearing Agency shall direct. Any Definitive Capital
Security delivered in exchange for an interest in the Restricted
Global Capital Security shall, except as otherwise provided by
Sections 7.3 and 9.1, bear the Restricted Securities Legend set forth
in Exhibit A-l hereto.
(d) Subject to the provisions of Section 7.9(c), the
Holder of the Global Capital Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which such Holder
is entitled to take under this Trust Agreement or the Securities.
(e) In the event of the occurrence of any of the events
specified in Section 7.9(b), the Trust will promptly make available to
the Property Trustee a reasonable supply of certificated Capital
Securities in fully registered form without distribution coupons.
SECTION 7.10 Cancellation.
The Trust at any time may deliver Capital Securities to the
Property Trustee for cancellation. The Registrar, Paying Agent and Exchange
Agent shall forward to the Property Trustee any Capital Securities surrendered
to them for registration of transfer, redemption, exchange or payment. The
Property Trustee shall promptly cancel all Capital Securities surrendered for
registration of transfer, redemption, exchange, payment, replacement or
cancellation and shall dispose of canceled Capital Securities in accordance
with its customary procedures unless the Trust otherwise directs. The Trust may
not issue new Capital Securities to replace Capital Securities that it has paid
or that have been delivered to the Property Trustee for cancellation or that
any Holder has exchanged.
SECTION 7.11 CUSIP Numbers.
The Trust in issuing the Capital Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Property Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders of Capital
Securities; provided that, any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Capital
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Capital
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Sponsor will promptly notify the Property Trustee
of any change in the CUSIP numbers.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall dissolve upon the first to occur of
the following:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of
dissolution or liquidation or its equivalent with respect to
the Sponsor;
(iii) following the distribution of a Like Amount
of the Debentures to the Holders, provided that, the Property
Trustee has received written notice from the Holders of the
Common Securities directing the Property Trustee to dissolve
the Trust (which direction is optional, and except as
otherwise expressly provided below, within the discretion of
the Holders of the Common Securities), and provided, further,
that such direction and such distribution is conditioned on
the receipt by the Sponsor of any and all required regulatory
approvals;
(iv) upon the entry of a decree of judicial
dissolution of the Trust by a court of competent jurisdiction;
(v) when all of the Securities shall have been
called for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance with
the terms of the Securities in connection with the redemption
or repayment of the Debentures; or
(vi) the expiration of the term of the Trust
provided in Section 3.14.
(b) As soon as is practicable upon completion of winding
up of the Trust following the occurrence of an event referred to in
Section 8.1(a), and subject to Section 3808(d) and (e) of the Business
Trust Act, the Property Trustee and the Delaware Trustee (each of whom
is hereby authorized to take such action) shall terminate the Trust by
filing a certificate of cancellation with the Secretary of State of
the State of Delaware in accordance with the Business Trust Act and,
upon such filing, the obligations and responsibilities of the
Administrators and the Trust created and continued hereby shall
terminate.
(c) The provisions of Section 3.9 and Article X shall
survive the dissolution of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this
Trust Agreement and in the terms of the Securities. To the fullest
extent permitted by law, any transfer or purported transfer of any
Security not made in accordance with this Trust Agreement shall be
null and void.
(b) For so long as the Securities remain outstanding, the
Sponsor agrees (i) not to transfer ownership of the Common Securities
of the Trust, provided that any permitted successor of the Sponsor
under the Indenture may succeed to the Sponsor's ownership of the
Common Securities or to an Affiliate of the Sponsor in compliance with
applicable law (including the Securities Act and applicable state
securities and blue sky laws).
(c) The Registrar shall provide for the registration of
Capital Securities and of the transfer of Capital Securities, which
will be effected without charge but only upon payment (with such
indemnity as the Registrar may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Capital Securities, an
Administrator shall cause one or more new Capital Securities to be
issued in the name of the designated transferee or transferees. Every
Capital Security surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory
to the Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Capital Security surrendered for
registration of transfer shall be delivered to the Registrar and
canceled in accordance with Section 7.10. A transferee of a Capital
Security shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee
of a Capital Security. By acceptance of a Capital Security or any
interest therein, each transferee shall be deemed to have agreed to be
bound by this Trust Agreement.
SECTION 9.2 Transfer Procedures and Restrictions.
(a) General. Except as otherwise provided in Section
9.2(b), if Capital Securities are issued upon the transfer, exchange
or replacement of Capital Securities bearing the Restricted Securities
Legend set forth in Exhibit A-1 hereto, or if a request is made to
remove such Restricted Securities Legend on Capital Securities, the
Capital Securities so issued shall bear the Restricted Securities
Legend, or the Restricted Securities Legend shall not be removed, as
the case may be, unless there is delivered to the Trust and the
Property Trustee such satisfactory evidence, which shall include an
Opinion of Counsel, as may be reasonably required by the Trust and the
Property Trustee, that neither the Restricted Securities Legend nor
the restrictions on transfer set forth therein are required to
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ensure that transfers thereof are made pursuant to an exception from
the registration requirements of the Securities Act or, with respect
to Restricted Capital Securities, that such Securities are not
"restricted" within the meaning of Rule 144. Upon provision of such
satisfactory evidence, the Property Trustee, at the written direction
of an Administrator on behalf of the Trust, shall authenticate and
deliver Capital Securities that do not bear the legend.
(b) Transfers After Effectiveness of a Registration
Statement. After the effectiveness of a Registration Statement with
respect to any Capital Securities, all requirements pertaining to
legends on such Capital Securities will cease to apply (other than the
legend requiring that transfers of Capital Securities be made in
blocks having an aggregate liquidation amount of not less than
$100,000 (100 Capital Securities) and multiples of $1,000 in excess
thereof), and beneficial interests in the Global Capital Security
without legends will be available to transferees of such Capital
Securities, upon exchange of the transferring Holder's Restricted
Definitive Capital Security or directions to transfer such Holder's
beneficial interest in the Global Capital Security, as the case may
be. No such transfer or exchange of a Restricted Definitive Capital
Security or of an interest in the Global Capital Security shall be
effective unless the transferor delivers to the Property Trustee a
certificate in a form substantially similar to that attached hereto as
the form of "Assignment" in Exhibit A-1. Except as otherwise provided
in Section 9.2(m), after the effectiveness of a Registration
Statement, an Administrator on behalf of the Trust shall issue and the
Property Trustee, upon a written order of the Trust signed by one
Administrator, shall authenticate a Global Capital Security without
the Restricted Securities Legend (the "Unrestricted Global Capital
Security") to deposit with the Clearing Agency to evidence transfers
of beneficial interests from the (i) Global Capital Security and (ii)
Restricted Definitive Capital Securities.
(c) Transfer and Exchange of Definitive Capital
Securities. When Definitive Capital Securities are presented to the
Registrar or co-registrar:
(x) to register the transfer of such Definitive Capital
Securities; or
(y) to exchange such Definitive Capital Securities which
became mutilated, destroyed, defaced, stolen or lost, for an equal
number of Definitive Capital Securities, the Registrar or co-registrar
shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met;
provided, however, that the Definitive Capital Securities surrendered
for registration of transfer or exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Trust and the Registrar or co- registrar, duly executed
by the Holder thereof or his attorney duly authorized in
writing; and
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(ii) in the case of Definitive Capital Securities
that are Restricted Definitive Capital Securities:
(A) if such Restricted Capital
Securities are being delivered to the
Registrar by a Holder for registration in the
name of such Holder, without transfer,
certification(s) from such Holder to that
effect; or
(B) if such Restricted Capital
Securities are being transferred: (i)
certification(s) in a form substantially
similar to that attached hereto as the form
of "Assignment" in Exhibit A-1, and (ii) if
the Trust or Registrar so requests, evidence
reasonably satisfactory to them as to the
compliance with the restrictions set forth in
the Restricted Securities Legend.
(d) Restrictions on Transfer of a Definitive Capital
Security for a Beneficial Interest in the Global Capital Security. A
Definitive Capital Security may not be exchanged for a beneficial
interest in the Global Capital Security except upon satisfaction of
the requirements set forth below. Upon receipt by the Property Trustee
of a Definitive Capital Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the
Property Trustee, together with:
(i) if such Definitive Capital Security is a
Restricted Capital Security, certification(s) in a form
substantially similar to that attached hereto as the form of
"Assignment" in Exhibit A-1; and
(ii) whether or not such Definitive Capital
Security is a Restricted Capital Security, written
instructions directing the Property Trustee to make, or to
direct the Clearing Agency to make, an adjustment on its books
and records with respect to the Global Capital Security to
reflect an increase in the number of the Capital Securities
represented by such Global Capital Security,
then the Property Trustee shall cancel such Definitive Capital Security and
cause, or direct the Clearing Agency to cause, the aggregate number of Capital
Securities represented by the Global Capital Security to be increased
accordingly. If the Global Capital Security is not then outstanding, an
Administrator on behalf of the Trust shall issue and the Property Trustee shall
authenticate, upon written order of any Administrator, a new Global Capital
Security representing an appropriate number of Capital Securities.
(e) Transfer and Exchange of the Global Capital Security
Subject to Section 9.2(f), the transfer and exchange of Global Capital
Security or beneficial interests therein shall be effected through the
Clearing Agency in accordance with this Trust Agreement (including
applicable restrictions on transfer set forth herein, if any) and the
procedures of the Clearing Agency therefor.
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(f) Transfer of a Beneficial Interest in the Global
Capital Security for a Definitive Capital Security.
A beneficial interest in the Global Capital Security may be
exchanged for a Security that is not a Global Capital Security only as provided
in Section 7.9.
(g) Restrictions on Transfer and Exchange of the Global
Capital Security. Notwithstanding any other provisions of this Trust
Agreement (other than the provisions set forth in subsection (h) of
this Section 9.2), the Global Capital Security may not be transferred
as a whole except by the Clearing Agency to a nominee of the Clearing
Agency or another nominee of the Clearing Agency or by the Clearing
Agency or any such nominee to a successor Clearing Agency or a nominee
of such successor Clearing Agency.
(h) Authentication of Definitive Capital Securities. If
at any time:
(i) a Default or an Event of Default has occurred
and is continuing,
(ii) the Trust, in its sole discretion, notifies
the Property Trustee in writing that it elects to cause the
issuance of Definitive Capital Securities under this Trust
Agreement, or
(iii) the Clearing Agency notifies the Sponsor that
it is unwilling or unable to continue as Clearing Agency for
such Global Capital Security or if at any time such Clearing
Agency ceases to be a "clearing agency" registered under the
Exchange Act, and, in each case, a clearing agency is not
appointed by the Sponsor within 90 days of receipt of such
notice or of becoming aware of such condition,
then an Administrator on behalf of the Trust will execute, and the Property
Trustee, upon receipt of a written order of the Trust signed by one
Administrator requesting the authentication and delivery of Definitive Capital
Securities to the Persons designated by the Trust, will authenticate and make
available for delivery Definitive Capital Securities, equal in number to the
number of Capital Securities represented by the Global Capital Security, in
exchange for such Global Capital Security.
(i) Legend.
(i) Except as permitted by the following
paragraph (ii), each Capital Security Certificate evidencing
the Global Capital Security and each Definitive Capital
Security (and all Capital Securities issued in exchange
therefor or substitution thereof) shall bear a legend (the
"Restricted Securities Legend") in substantially the following
form:
THIS CAPITAL SECURITY REPRESENTED HEREBY AND ANY JUNIOR
SUBORDINATED DEFERRABLE INTEREST DEBENTURES ISSUABLE IN
CONNECTION THEREWITH HAVE NOT BEEN
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REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH CNB
FINANCIAL CORP. (THE "CORPORATION") OR ANY "AFFILIATE" OF THE
CORPORATION WAS THE OWNER OF THIS CAPITAL SECURITY (OR ANY
PREDECESSOR OF THIS CAPITAL SECURITY) ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO
LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, SUBJECT TO THE RIGHT OF CNBF CAPITAL TRUST I
(THE "TRUST") AND THE CORPORATION PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER
TO THE TRUST A LETTER FROM
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THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE
OFFERING MEMORANDUM DATED [______], 1999. SUCH HOLDER FURTHER
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
CAPITAL SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
ALSO AGREES, REPRESENTS AND WARRANTS THAT: (A) THE PURCHASE
AND HOLDING OF THE CAPITAL SECURITIES IS COVERED BY THE
EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR
84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) CNB AND THE
ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN THE MEANING OF
SECTION 3(21) OF ERISA AND THE REGULATIONS THEREUNDER, WITH
RESPECT TO SUCH PERSON'S INTEREST IN THE CAPITAL SECURITIES OR
THE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES, AND
(C) IN PURCHASING THE CAPITAL SECURITIES SUCH PERSON APPROVES
THE PURCHASE OF THE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURES AND THE APPOINTMENT OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
IS DEEMED TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF A
REGISTRATION RIGHTS AGREEMENT AMONG CNB FINANCIAL CORP., CNBF
CAPITAL TRUST I, AND RYAN, BECK & CO., INC., DATED , 1999
(THE "REGISTRATION RIGHTS AGREEMENT"). CNB FINANCIAL CORP.
WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A
HOLDER WITHOUT CHARGE UPON WRITTEN REQUEST TO CNBF CAPITAL
TRUST I AT ITS PRINCIPAL PLACE OF BUSINESS.
In all circumstances, each Capital Security Certificate shall bear the
following legend:
THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000 (100 CAPITAL SECURITIES) AND MULTIPLES OF $1,000 IN
EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF CAPITAL SECURITIES
IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000
(100 CAPITAL SECURITIES) SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR
ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
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DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
SUCH CAPITAL SECURITIES.
(ii) Upon any sale or transfer of a Restricted
Capital Security (including any Restricted Capital Security
represented by the Global Capital Security) pursuant to an
effective registration statement under the Securities Act or
pursuant to Rule 144:
(A) in the case of any Restricted Capital
Security that is a Definitive Capital Security, the
Registrar shall permit the Holder thereof to exchange
such Restricted Capital Security for a Definitive
Capital Security that does not bear the Restricted
Securities Legend and rescind any restriction on the
transfer of such Restricted Capital Security; and
(B) in the case of any Restricted Capital
Security that is represented by the Global Capital
Security, the Registrar shall permit the Holder of
such Global Capital Security to exchange such Global
Capital Security for another Global Capital Security
that does not bear the Restricted Securities Legend.
(j) Cancellation or Adjustment of Global Capital
Security. At such time as all beneficial interests in the Global
Capital Security have either been exchanged for Definitive Capital
Securities to the extent permitted by this Trust Agreement or
redeemed, repurchased or canceled in accordance with the terms of this
Trust Agreement, such Global Capital Security shall be returned to the
Clearing Agency for cancellation or retained and canceled by the
Property Trustee. At any time prior to such cancellation, if any
beneficial interest in the Global Capital Security is exchanged for
Definitive Capital Securities, Capital Securities represented by such
Global Capital Security shall be reduced and an adjustment shall be
made on the books and records of the Property Trustee and the Clearing
Agency or its nominee to reflect such reduction.
(k) Obligations with Respect to Transfers and Exchanges
of Capital Securities.
(i) To permit registrations of transfers and
exchanges, the Trust shall execute and the Property Trustee
shall authenticate Definitive Capital Securities and the
Global Capital Security at the Registrar's or co-registrar's
request in accordance with the terms of this Trust Agreement.
(ii) Registrations of transfers or exchanges will
be effected without charge, but only upon payment (with such
indemnity as the Trust or the Sponsor may require) in respect
of any tax or other governmental charge that may be imposed in
relation to it.
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(iii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of (A)
Capital Securities during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Capital Securities
for redemption and ending at the close of business on the day
of such mailing or (B) any Capital Security so selected for
redemption in whole or in part, except the unredeemed portion
of any Capital Security being redeemed in part.
(iv) Prior to the due presentation for
registration of transfer of any Capital Security, the Trust,
the Property Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a
Capital Security is registered as the absolute owner of such
Capital Security for the purpose of receiving Distributions on
such Capital Security and for all other purposes whatsoever,
and none of the Trust, the Property Trustee, the Paying Agent,
the Registrar or any co-registrar shall be affected by notice
to the contrary.
(v) All Capital Securities issued upon any
registration of transfer or exchange pursuant to the terms of
this Trust Agreement shall evidence the same security and
shall be entitled to the same benefits under this Trust
Agreement as the Capital Securities surrendered upon such
registration of transfer or exchange.
(l) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no
responsibility or obligation to any Capital Security
Beneficial Owner, a Participant in the Clearing Agency or
other Person with respect to the accuracy of the records of
the Clearing Agency or its nominee or of any Participant
thereof, with respect to any ownership interest in the Capital
Securities or with respect to the delivery to any Participant,
beneficial owner or other Person (other than the Clearing
Agency) of any notice (including any notice of redemption) or
the payment of any amount, under or with respect to such
Capital Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders under
the Capital Securities shall be given or made only to or upon
the order of the registered Holders (which shall be the
Clearing Agency or its nominee in the case of the Global
Capital Security). The rights of Capital Security Beneficial
Owners shall be exercised only through the Clearing Agency
subject to the applicable rules and procedures of the Clearing
Agency. The Property Trustee may conclusively rely and shall
be fully protected in relying upon information furnished by
the Clearing Agency or any agent thereof with respect to its
Participants and any Capital Security Beneficial Owners.
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(ii) The Property Trustee and the Registrar shall
have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under
this Trust Agreement or under applicable law with respect to
any transfer of any interest in any Capital Security
(including any transfers between or among Clearing Agency
Participants or Capital Security Beneficial Owners) other than
to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to
do so if and when expressly required by, the terms of this
Trust Agreement, and to examine the same to determine
substantial compliance as to form with the express
requirements hereof.
(m) Exchange of Series A Capital Securities for Series B
Capital Securities. The Series A Capital Securities shall be exchanged
for Series B Capital Securities pursuant to the terms of the Exchange
Offer if the following conditions are satisfied:
(i) The Sponsor shall present the Property
Trustee with an Officers' Certificate certifying the
following:
(A) upon issuance of the Series B Capital
Securities, the transactions contemplated by the
Exchange Offer have been consummated; and
(B) the number of Series A Capital Securities
properly tendered in the Exchange Offer that are
represented by the Global Capital Security and the
number of Series A Capital Securities properly
tendered in the Exchange Offer that are represented
by Definitive Capital Securities, the name of each
Holder of such Definitive Capital Securities, the
liquidation amount of Capital Securities properly
tendered in the Exchange Offer by each such Holder
and the name and address to which Definitive Capital
Securities for Series B Capital Securities shall be
registered and sent for each such Holder.
(ii) The Property Trustee, upon receipt of (i)
such Officers' Certificate, (ii) an Opinion of Counsel to the
effect that the Series B Capital Securities and the Series B
Capital Securities Guarantee have been registered under
Section 5 of the Securities Act and that this Trust Agreement
and the Series B Capital Securities Guarantee have been
qualified under the Trust Indenture Act and (y) with respect
to the matters set forth in Section 3(q) of the Registration
Rights Agreement, shall authenticate (A) the Global Capital
Security, executed and delivered by the Trust to the Property
Trustee, for Series B Capital Securities in aggregate
liquidation amount equal to the aggregate liquidation amount
of Series A Capital Securities represented by the Global
Capital Security indicated in such Officers' Certificate as
having been properly tendered
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and (B) Definitive Capital Securities, executed and delivered
by the Trust to the Property Trustee, representing Series B
Capital Securities registered in the names and in the
liquidation amounts indicated in such Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all the
outstanding Series A Capital Securities shall have been properly tendered and
not withdrawn, the Property Trustee shall make an endorsement on the Global
Capital Security for Series A Capital Securities indicating the reduction in
the number and aggregate liquidation amount represented thereby as a result of
the Exchange Offer.
The Trust shall deliver such authenticated Definitive Capital
Securities for Series B Capital Securities to the Holders thereof as indicated
in such Officers' Certificate.
(n) Minimum Transfers. Series A Capital Securities and,
if and when issued, Series B Capital Securities may only be
transferred in minimum blocks of $100,000 aggregate liquidation amount
(100 Capital Securities) and multiples of $1,000 in excess thereof.
Any attempted transfer of Series A Capital Securities or Series B
Capital Securities in a block having an aggregate liquidation amount
of less than $100,000 shall be deemed to be voided and of no legal
effect whatsoever. Any such purported transferee shall be deemed not
to be a Holder of such Series A Capital Securities or Series B Capital
Securities for any purpose, including, but not limited to, the receipt
of Distributions on such Capital Securities, and such purported
transferee shall be deemed to have no interest whatsoever in such
Capital Securities.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Security
shall be registered on the books and records of the Trust as the sole owner and
Holder of such Security for purposes of receiving Distributions and for all
other purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Security on the part of any
Person, whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4 Book-Entry Interests.
The Global Capital Security shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of
the Clearing Agency, and no Capital Security Beneficial Owner will receive
physical delivery of a definitive Capital Security certificate (a "Capital
Security Certificate") representing such Capital Security Beneficial Owner's
interests in such Global Capital Security, except as provided in Section 9.2
and Section 7.9. Unless and until Definitive Capital Securities have been
issued to the Capital Security Beneficial Owners pursuant to Section 9.2 or
Section 7.9:
(a) the provisions of this Section 9.4 shall be in full
force and effect;
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(b) the Trust and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Trust Agreement
(including the payment of Distributions on the Global Capital Security
and receiving approvals, votes or consents hereunder) as the sole
Holder of the Global Capital Security and shall have no obligation to
the Capital Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 9.4 shall control; and
(d) the rights of the Capital Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Capital Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants, and the Clearing Agency shall receive
and transmit payments of Distributions on the Global Capital Security
to such Clearing Agency Participants; provided, however, that solely
for the purposes of determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided for in
this Trust Agreement, the Trustees, with respect to the Global Capital
Security, may conclusively rely on, and shall be protected in relying
on, any written instrument (including a proxy) delivered to the
Trustees by the Clearing Agency setting forth the Capital Security
Beneficial Owners' votes or assigning the right to vote on any matter
to any other Persons either in whole or in part; and the Clearing
Agency will also make book-entry transfers among the Clearing Agency
Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Capital
Security Holders is required to be given by a Trustee under this Trust
Agreement, such Trustee shall give all such notices and communications
specified herein to be given to the Holder of the Global Capital Security to
the Clearing Agency and shall have no notice obligations to the Capital
Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities, the
Administrators may, in their sole discretion, appoint a successor Clearing
Agency with respect to such Capital Securities.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Trust
Agreement, the Securities Guarantees and the terms of the Securities,
the Sponsor shall not be:
(i) personally liable for the return of any
portion of the capital contributions (or any return thereon)
of the Holders which shall be made solely from assets of the
Trust; and
(ii) required to pay to the Trust or to any Holder
any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than in respect of the Securities) to
the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust
Act, the Holders shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred
on such Indemnified Person by this Trust Agreement or by law, except
that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's gross
negligence (or in the case of the Property Trustee or the Delaware
Trustee, negligence) or willful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by
any Person as to matters the Indemnified Person reasonably believes
are within such other Person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to
the value and amount of the assets, liabilities, profits, losses, or
any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
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SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement shall
not be liable to the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict
the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity (other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between any Covered Person and any Indemnified Person,
or
(ii) whenever this Trust Agreement or any other
agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Trust or any Holder
of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Trust Agreement or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified
Person is permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Trust Agreement or by applicable law.
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SECTION 10.4 Indemnification.
(a) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person, against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be within the scope of authority confer on such Company
Indemnified Person by this Trust Agreement and in or not opposed to
the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful, except that no Company Indemnified Person shall be
entitled to be indemnified in respect of any amount incurred by such
Company Indemnified Person by reason of negligence or willful
misconduct. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys' fees
and expenses) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be within the
scope of authority confer on such Company Indemnified Person by this
Trust Agreement and in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect
of any claim, issue or matter as to which such Company Indemnified
Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such Person is fairly and
reasonably entitled to indemnity for such expenses which such Court of
Chancery or such other court shall deem proper, except that no Company
Indemnified Person shall be entitled to be indemnified in respect of
any amount incurred by such Company Indemnified Person by reason of
negligence or willful misconduct.
(c) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without
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prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in
the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall
be made (1) by the Administrators by a majority vote of a Quorum
consisting of such Administrators who were not parties to such action,
suit or proceeding, (2) if such a Quorum is not obtainable, or, even
if obtainable, if a Quorum of disinterested Administrators so directs,
by independent legal counsel in a written opinion, or (3) by the
Common Security Holder of the Trust.
(e) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall
be paid by the Sponsor in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such Company Indemnified Person to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Sponsor as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor
if a determination is reasonably and promptly made (i) by the
Administrators by a majority vote of a Quorum of disinterested
Administrators, (ii) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion or (iii) by the Common
Security Holder of the Trust, that, based upon the facts known to the
Administrators, counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified Person acted in bad
faith or in a manner that the Common Security Holder did not believe
to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified
Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the
Administrators, independent legal counsel or Common Security Holder
reasonably determine that a Company Indemnified Person deliberately
breached his duty to the Trust or its Common or Capital Security
Holders.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other rights to
which those seeking indemnification and advancement of expenses may be
entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Capital Security Holders of the Trust or
otherwise, both as to action
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in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.4(a) shall be deemed to be provided by a contract between the
Sponsor and each Company Indemnified Person who serves in such
capacity at any time while this Section 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(g) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 10.4(a).
(h) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(i) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall,
unless otherwise provided when authorized or ratified, continue as to
a Person who has ceased to be a Company Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of
such a Person.
(j) The Sponsor agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the
Property Trustee or the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property
Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv), including the Property Trustee and the Delaware Trustee in their
respective individual capacities, being referred to as a "Fiduciary
Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, action,
suit, claim or expense including taxes (other than taxes based on the
income of such Fiduciary Indemnified Person) of any kind and nature
whatsoever incurred by such person in good faith on behalf of the
Trust and in a manner such Fiduciary Indemnified Person reasonably
believed to be within the scope of authority conferred on such
Fiduciary Indemnified Person by this Trust Agreement, except that no
Fiduciary Indemnified Person shall be entitled to be indemnified in
respect of any amount incurred by such Fiduciary Indemnified Person by
reason of negligence or willful misconduct, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of
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defending against or investigating any claim or liability in
connection with the exercise or performance of any of the powers or
duties of such Fiduciary Indemnified Person hereunder. The obligation
to indemnify as set forth in this Section 10.4(b) shall survive the
resignation or removal of the Property Trustee or the Delaware Trustee
and the satisfaction and discharge of this Trust Agreement.
(k) The Sponsor agrees to pay the Property Trustee and
the Delaware Trustee, from time to time, such reasonable compensation
for all services rendered by the Property Trustee and the Delaware
Trustee hereunder as may be mutually agreed upon in writing by the
Sponsor and the Property Trustee or the Delaware Trustee, as the case
may be, and, except as otherwise expressly provided herein, to
reimburse the Property Trustee and the Delaware Trustee upon its or
their request for all reasonable expenses (including counsel fees and
expenses), disbursements and advances incurred or made by the Property
Trustee or the Delaware Trustee, as the case may be, in accordance
with the provisions of this Trust Agreement, except any such expense,
disbursement or advance as may be attributable to its or their
negligence, bad faith or willful misconduct.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders shall have no rights by virtue of this Trust Agreement in
and to such independent ventures or the income or profits derived therefrom,
and the pursuit of any such venture, even if competitive with the business of
the Trust, shall not be deemed wrongful or improper. No Covered Person, the
Sponsor, the Delaware Trustee, or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee
and the Property Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Property Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor, or may
act as depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
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(a) At all times during the existence of the Trust, the
Administrators shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable
detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with
generally accepted accounting principles, consistently applied. The
Trust shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the records of
the Trust shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrators.
(b) The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders any annual United States
federal income tax information statement required by the Code,
containing such information with regard to the Securities held by each
Holder as is required by the Code and the Treasury Regulations.
(c) The Administrators shall cause to be duly prepared
and filed with the appropriate taxing authority, an annual United
States federal income tax return, on a Form 1041 or such other form
required by United States federal income tax law, and any other annual
income tax returns required to be filed by the Administrators on
behalf of the Trust with any state or local taxing authority.
SECTION 11.3 Banking.
The Trust may maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrators; provided, however, that the
Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4 Withholding.
The Trust and the Administrators shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Administrators shall cause to be
filed required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Trust is required to withhold and pay over any amounts to any
authority with respect to Distributions or allocations to any Holder, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder. In the event of any claim of excess withholding,
Holders shall be limited to an action against the applicable
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jurisdiction. If the amount required to be withheld was not withheld from
actual Distributions made, the Trust may reduce subsequent Distributions by the
amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Trust Agreement
(including Section 7 of Annex I hereto) or by any applicable terms of
the Securities, this Trust Agreement may only be amended by a written
instrument approved and executed by:
(i) the Sponsor and the Administrators (or, if
there are more than two Administrators, a majority of the
Administrators);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Property Trustee, the
Property Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, the
Delaware Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed
amendment, the Property Trustee shall have first received an
Officers' Certificate from each of the Trust and the Sponsor
that such amendment is permitted by, and conforms to, the
terms of this Trust Agreement (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee shall
have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this
Trust Agreement (including the terms of the
Securities); and
(B) an Opinion of Counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Trust Agreement (including the terms of the
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Securities) and that all conditions precedent to the
execution and delivery of such amendment have been
satisfied;
provided, however, that the Property Trustee shall not be required to sign any
such amendment; and
(iii) to the extent the result of such amendment
would be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal
income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under
the Investment Company Act.
(c) At such time after the Trust has issued any
Securities that remain outstanding, any amendment that would adversely
affect the rights, privileges or preferences of any Holder (other than
an amendment pursuant to (g)(ii) below) may be effected only with such
additional requirements as may be set forth in the terms of such
Securities;
(d) Section 10.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders;
(e) Article Four shall not be amended without the consent
of the Holders of a Majority in Liquidation Amount of the Common
Securities;
(f) The rights of the Holders of the Common Securities
under Article V to increase or decrease the number of Trustees shall
not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Common Securities; and
(g) Notwithstanding Section 12.1(c), this Trust Agreement
may be amended without the consent of the Holders of the Capital
Securities to:
(i) cure any ambiguity, correct or supplement any
provision in this Trust Agreement that may be inconsistent
with any other provision of this Trust Agreement or to make
any other provisions with respect to matters or questions
arising under this Trust Agreement which shall not be
inconsistent with the other provisions of the Trust Agreement;
(ii) to modify, eliminate or add to any provisions
of the Trust Agreement to such extent as shall be necessary to
ensure that the Trust will not be classified as an association
taxable as a corporation or to enable the Trust to qualify as
a grantor trust at all times that any Securities are
outstanding, in each case for U.S. federal income tax
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purposes or to ensure that the Trust will not be required to
register as an Investment Company under the Investment Company
Act; and
(iii) to modify, eliminate or add any provisions of
the Trust Agreement to such extent as shall be necessary to
enable the Trust or the Sponsor to conduct an Exchange Offer
in the manner contemplated by the Registration Rights
Agreement;
provided, however, that in the case of clauses (i) and (iii) above, such action
shall not adversely affect in any material respect the interests of the
Holders, and any such amendments of this Trust Agreement shall become effective
when notice thereof is given to the Holders.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Administrators or the Property
Trustee (or as provided in the terms of the Securities) to consider
and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Trust Agreement, the terms of
the Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading. The Property Trustee
shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 25% in Liquidation Amount of such class of
Securities. Such direction shall be given by delivering to the
Property Trustee one or more notices in writing stating that the
signing Holders wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders
calling a meeting shall specify in writing the Capital Security
Certificates held by the Holders exercising the right to call a
meeting and only those Securities specified shall be counted for
purposes of determining whether the required percentage set forth in
the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms
of the Securities, the following provisions shall apply to meetings of
Holders:
(i) notice of any such meeting shall be given to
all the Holders having a right to vote thereat at least seven
days and not more than 90 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders
is permitted or required under this Trust Agreement or the
rules of any stock exchange on which the Capital Securities
are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders; any action
that may be taken at a meeting of the Holders may be taken
without a meeting if a consent in writing setting forth the
action so taken is signed by the Holders owning not less than
the minimum amount of Securities in liquidation amount that
would be necessary to authorize or take such action at a
meeting at which all Holders having a right to vote thereon
were present and voting; prompt notice of the taking of action
without a
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meeting shall be given to the Holders entitled to vote who
have not consented in writing; and the Property Trustee may
specify that any written ballot submitted to the Security
Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by
the Property Trustee;
(ii) each Holder may authorize any Person to act
for it by proxy on all matters in which a Holder is entitled
to participate, including waiving notice of any meeting, or
voting or participating at a meeting; no proxy shall be valid
after the expiration of eleven months from the date thereof
unless otherwise provided in the proxy; every proxy shall be
revocable at the pleasure of the Holder executing it; and,
except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware relating
to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders shall be
conducted by the Property Trustee or by such other Person that
the Property Trustee may designate; and
(iv) unless the Business Trust Act, this Trust
Agreement, the terms of the Securities, the Trust Indenture
Act or the listing rules of any stock exchange on which the
Capital Securities are then listed or trading, otherwise
provides, the Property Trustee, in its sole discretion, shall
establish all other provisions relating to meetings of
Holders, including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any Holders,
waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Trust
Agreement, and each Successor Property Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) the Property Trustee is a banking corporation, a
national banking association or a bank or trust company, duly
organized, validly existing and in good standing under the laws of the
United States or the State of Delaware as the
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case may be, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms
of, this Trust Agreement;
(b) the execution, delivery and performance by the
Property Trustee of this Trust Agreement has been duly authorized by
all necessary corporate action on the part of the Property Trustee;
and this Trust Agreement has been duly executed and delivered by the
Property Trustee and under Delaware law (excluding any securities
laws) constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of
the court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or constitute
a breach of the charter or by-laws of the Property Trustee;
(d) no consent, approval or authorization of, or
registration with or notice to, any federal or state banking authority
governing the trust powers of the Property Trustee is required for the
execution, delivery or performance by the Property Trustee of this
Trust Agreement; and
(e) the Property Trustee has not knowingly created any
liens or encumbrances of the Securities.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Trust
Agreement, and each Successor Delaware Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Delaware Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) the Delaware Trustee is a banking corporation, a
national banking association or a bank or trust company, duly
organized, validly existing and in good standing under the laws of the
United States or the State of Delaware, as the case may be, with
corporate power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Trust Agreement;
(b) the execution, delivery and performance by the
Delaware Trustee of this Trust Agreement has been duly authorized by
all necessary corporate action on the part of the Delaware Trustee;
and this Trust Agreement has been duly executed and delivered by the
Delaware Trustee and under Delaware law (excluding any securities
laws) constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights
generally and to general principles of
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equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) the execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or constitute
a breach of the charter or by-laws of the Delaware Trustee; and
(d) no consent, approval or authorization of, or
registration with or notice to, any federal or Delaware banking
authority governing the trust powers of the Delaware Trustee is
required for the execution, delivery or performance by the Delaware
Trustee of this Trust Agreement; and
(e) the Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware, and is a Person that satisfies for the Trust Section 3807(a)
of the Business Trust Act.
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement; Liquidated Damages.
The Holders of the Series A Capital Securities, the Series A
Debentures and the Series A Capital Securities Guarantee are entitled to the
benefits of the Registration Rights Agreement. In certain limited circumstances
set forth in the Registration Rights Agreement, the Debenture Issuer shall be
required to pay liquidated damages with respect to the Debentures. Unless
otherwise stated, the term "Distribution," as used in this Trust Agreement,
includes any and all liquidated damages.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
All notices provided for in this Trust Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, overnight courier service or
confirmed telecopy, as follows:
(a) if given to the Trust, in care of the Administrators
at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Property Trustee, the Delaware
Trustee and the Holders):
CNBF Capital Trust I
c/o CNB Financial Corp.
24 Church Street
Canajoharie, New York 13317
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Attn.: Administrator
Telephone: (518) 673-3243
Telecopier: (518) 673-3433
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware Trustee may
give notice of to the Holders):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attn.: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
(c) if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as
the Property Trustee may give notice of to the Holders):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attn: Corporate Trust Administration
Telephone: (302) 651-1000
Telecopier: (302) 651-8882
(d) if given to the Holder of the Common Securities, at
the mailing address of the Sponsor set forth below (or such other
address as the Holder of the Common Securities may give notice to the
Trust):
CNB Financial Corp.
24 Church Street
Canajoharie, New York 13317
Attn.: Peter J. Corso
Telephone: (518) 673-3243
Telecopier: (518) 673-3433
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
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SECTION 15.2 Governing Law.
This Trust Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Delaware without regard to conflict of laws principles thereof.
SECTION 15.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust.
The provisions of this Trust Agreement shall be interpreted to further this
intention of the parties.
SECTION 15.4 Headings.
Headings contained in this Trust Agreement are inserted for
convenience of reference only and do not affect the interpretation of this
Trust Agreement or any provision hereof.
SECTION 15.5 Successors and Assigns.
Whenever in this Trust Agreement any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Trust Agreement by the
Sponsor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether or not so expressed.
SECTION 15.6 Partial Enforceability.
If any provision of this Trust Agreement, or the application
of such provision to any Person or circumstance, shall be held invalid, the
remainder of this Trust Agreement, or the application of such provision to
Persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
SECTION 15.7 Counterparts.
This Trust Agreement may contain more than one counterpart of
the signature page and this Trust Agreement may be executed by the affixing of
the signature of each of the Trustees to one or more of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
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EXHIBIT 4.4
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ THOMAS LASKARIS
------------------------------------
Name: Thomas Laskaris
Title: Vice President
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ THOMAS LASKARIS
------------------------------------
Name: Thomas Laskaris
Title: Vice President
CNB FINANCIAL CORP.,
as Sponsor and Debenture Issuer
By: /s/ PETER J. CORSO
------------------------------------
Name: Peter J. Corso
Title: Executive Vice President
and Chief Financial Officer
Accepted and agreed to:
/s/ DONALD L. BRASS
- ----------------------------------
Donald L. Brass,
as Administrator
/s/ PETER J. CORSO
- ----------------------------------
Peter J. Corso,
as Administrator
/s/ STEPHEN SOUKY
- ----------------------------------
Stephen Souky,
as Administrator
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EXHIBIT 4.4
ANNEX I
TERMS OF
FLOATING RATE CAPITAL SECURITIES, SERIES A/SERIES B
FLOATING RATE COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Trust
Agreement, dated as of August 6, 1999 (as amended from time to time, the "Trust
Agreement"), the designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Securities are set out below (each
capitalized term used but not defined herein has the meaning set forth in the
Trust Agreement or, if not defined in such Trust Agreement, as defined in the
Offering Memorandum referred to below in Section 2(g) of this Annex I):
1. Designation and Number.
(a) Capital Securities. 18,000 Series A Capital
Securities of the Trust and 18,000 Series B Capital Securities of the Trust,
each series with an aggregate liquidation amount with respect to the assets of
the Trust of Eighteen Million Dollars ($18,000,000) and with a liquidation
amount with respect to the assets of the Trust of One Thousand Dollars ($1,000)
(the "Liquidation Amount") per security, are hereby designated for the purposes
of identification only as "Floating Rate Capital Securities, Series A" and
"Floating Rate Capital Securities, Series B," respectively (collectively, the
"Capital Securities"). The certificates evidencing the Capital Securities shall
be substantially in the form of Exhibit A-1 to the Trust Agreement, with such
changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of any exchange or
quotation system on or in which the Capital Securities are listed, traded or
quoted.
(b) Common Securities. 720 Common Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
Seven Hundred Twenty Thousand Dollars ($720,000) and a liquidation amount with
respect to the assets of the Trust of $1,000 per security, are hereby
designated for the purposes of identification only as "Floating Rate Common
Securities" (the "Common Securities"). The certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-2 to the Trust
Agreement, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions on each Security will be payable at a
rate per annum, reset quarterly, equal to 3-month LIBOR (as defined below) plus
275 basis points (the "Coupon Rate"), such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarterly period will bear additional Distributions
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in the Registration Rights Agreement) with respect to the
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Debentures. The term "Distributions," as used herein, includes distributions of
any and all such interest and Liquidated Damages, if any, payable unless
otherwise stated. A Distribution is payable only to the extent that payments
are made with respect to the Debentures held by the Property Trustee and to the
extent the Property Trustee has funds legally available therefor.
(b) The Coupon Rate on the Securities for each quarter
(or other period for which interest is payable) will be determined on the
Determination Date (as defined below) for such quarter (or other period for
which interest is payable) and will be a per annum rate reset quarterly equal
to 3-month LIBOR (determined as set forth below) plus 275 basis points, and
will be effective as of the first day of such quarter (or other period for
which interest is payable).
(c) On each Determination Date, the Calculation Agent
will calculate the interest rate, based on 3-month LIBOR, for each interest
period commencing on the second London Banking Day immediately following such
Determination Date. "3-month LIBOR" means, with respect to an interest period
relating to a Distribution Date, the London interbank offered rate for
three-month, Eurodollar deposits determined in the following order of priority:
(i) the rate (expressed as a percentage per annum) for
Eurodollar deposits having a three-month maturity that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on the related
Determination Date);
(ii) if such rate does not appear on Telerate Page 3750 as
of 11:00 a.m. (London time) on the related Determination Date, 3-month
LIBOR will be the arithmetic mean of the rates (expressed as
percentages per annum) for Eurodollar deposits having a three-month
maturity that appear on Reuters Monitor Money Rates Page LIBO
("Reuters Page LIBO") as of 11:00 a.m. (London time) on such
Determination Date;
(iii) if such rate does not appear on Reuters Page LIBO as
of 11:00 a.m. (London time) on the related Determination Date, the
Calculation Agent will request the principal London offices of four
leading banks in the London interbank market to provide such banks'
offered quotations (expressed as percentages per annum) to prime banks
in the London interbank market for Eurodollar deposits having a
three-month maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are provided, 3-month
LIBOR will be the arithmetic mean of such quotations;
(iv) if fewer than two such quotations are provided as
requested in clause (iii) above, the Calculation Agent will request
four major New York City banks to provide such banks' offered
quotations (expressed as percentages per annum) to leading European
banks for loans in Eurodollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided,
3-month LIBOR will be the arithmetic mean of such quotations; and
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(v) if fewer than two such quotations are provided as
requested in clause (iv) above, 3-month LIBOR will be 3-month LIBOR
determined with respect to the interest period immediately preceding
such current interest period.
If the rate for Eurodollar deposits having a three-month
maturity that initially appears on Telerate Page 3750 or Reuters Page LIBO, as
the case may be, as of 11:00 a.m. (London time) on the related Determination
Date is superceded on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, by a corrected rate before 12:00 noon (London time) on such Determination
Date, the corrected rate as so substituted on the applicable page will be the
applicable 3-month LIBOR for such Determination Date.
As used herein:
"Calculation Agent" means Wilmington Trust Company,
Wilmington, Delaware.
"Determination Date" means the date that is two London Banking
Days preceding the first day of any quarter or other period for which a
Distribution will be payable.
"London Banking Day" means a day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
Telerate Page 3750" means the display designated as "Page
3750" on the Dow Jones Telerate Service (or such other page as may replace Page
3750 on that service or such other service or services as may be nominated by
the British Bankers' Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits).
(d) All percentages resulting from any calculations on
the Securities will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one- millionths of a
percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded
to 9.87655% (or .0987655)), and all dollar amounts used in or resulting from
such calculation will be rounded to the nearest cent (with one-half cent being
rounded upward).
(e) On the Determination Date, the Calculation Agent
shall notify the Debenture Issuer and the Paying Agent of the applicable Coupon
Rate in effect for the related Distribution period. The Calculation Agent
shall, upon the request of the holder of any Securities, provide the Coupon
Rate then in effect. All calculations made by the Calculation Agent in the
absence of manifest error shall be conclusive for all purposes and binding on
the Sponsor and the Holders of the Securities. The Paying Agent shall be
entitled to rely on information received from the Calculation Agent or the
Debenture Issuer as to the Coupon Rate.
(f) Distributions on the Securities will be cumulative,
will accumulate from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from August 6, 1999 and will be payable
quarterly in arrears on March
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31, June 30, September 30 and December 31 of each year, commencing September
30, 1999 (each, a "Distribution Date"), except as otherwise described below.
Distributions will be computed on the basis of the actual number of days
elapsed in such period and a 360-day year. As long as no Event of Default has
occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 20 consecutive quarterly periods, including the first
such quarterly period during such period (each an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall end on a date other than an Interest
Payment Date for the Debentures or extend beyond the Maturity Date of the
Debentures. As a consequence of such deferral, Distributions (other than
Liquidated Damages, if any) will also be deferred. Notwithstanding such
deferral, Distributions will continue to accumulate with additional
Distributions thereon (to the extent permitted by applicable law but not at a
rate greater than the rate at which interest is then accruing on the
Debentures) at the applicable periodic Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period, provided that such extension does not cause
such Extension Period, together with all such previous and further extensions
within such Extension Period, to exceed 20 consecutive quarterly periods,
including the first quarterly period during such Extension Period, end on a
date other than an Interest Payment Date for the Debentures or extend beyond
the Maturity Date of the Debentures. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
(g) Distributions on the Securities will be payable to
the Holders thereof as they appear on the books and records of the Trust on the
close of business on the 15th day of the month in which the relevant
Distribution Date occurs, which Distribution Dates correspond to the Interest
Payment Dates for the Debentures. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment with
respect to the Capital Securities will be made as described under the heading
"Description of Capital Securities -- Form, Denomination, Book-Entry Procedures
and Transfer" in the Offering Memorandum dated August 4, 1999 of the Debenture
Issuer and the Trust relating to the Securities and the Debentures. The
relevant record dates for the Common Securities shall be the same as the record
dates for the Capital Securities. Distributions payable on any Securities that
are not punctually paid on any Distribution Date, as a result of the Debenture
Issuer having failed to make a payment under the Debentures, will cease to be
payable to the Holder on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distributions payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay), except that if such next succeeding Business Day falls in the next
succeeding calendar year, such payment
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shall be made on the immediately preceding Business Day with the same force and
effect as if made on such date.
(h) In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein) among the Holders.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust, the Trust shall
be liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing to the Holders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, a Like
Amount (as defined below) of the Debentures, unless such distribution is
determined by the Property Trustee not to be practicable, in which event such
Holders will be entitled to receive out of the assets of the Trust legally
available for distribution to Holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to the
aggregate of the liquidation amount of $1,000 per Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having a Liquidation Amount equal to the principal
amount of Debentures to be paid in accordance with their terms and (ii) with
respect to a distribution of Debentures upon the liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets legally
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust with respect to the Securities shall be
paid on a Pro Rata basis, except that if an Event of Default has occurred and
is continuing, the Capital Securities shall have a priority over the Common
Securities, as provided in Section 9 of this Annex I.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in
part, at maturity or otherwise (either at the option of the Debenture Issuer or
pursuant to a Special Event, as described below), the proceeds from such
repayment shall be simultaneously applied by the Property Trustee (subject to
the Property Trustee having received written notice no later than 45 days prior
to such repayment) to redeem a Like Amount of the Securities at a redemption
price equal to 100% of the principal of, plus accrued and unpaid interest on,
the Debentures being redeemed (the "Redemption Price"). Holders will be given
not less than 30 nor more than 60 days' prior written notice of such
redemption.
(b) In the case of an optional redemption, if fewer than
all the outstanding Securities are to be so redeemed, the Common Securities and
the Capital
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Securities shall be redeemed Pro Rata and the Capital Securities to be redeemed
will be determined as described in Section 4(f)(ii) below. Upon the entry of an
order for the dissolution of the Trust by a court of competent jurisdiction,
the Debentures thereafter will be subject to optional redemption, in whole, but
not in part, on or after the Initial Optional Redemption Date.
The Debenture Issuer shall have the right (subject to the
conditions in the Indenture) to elect to redeem the Debentures, in whole or in
part, at any time on or after [ ], 2009 (the "Initial
Optional Redemption Date"), and, simultaneous with such redemption, to cause a
Like Amount of the Securities to be redeemed by the Trust at the Redemption
Price on a Pro Rata basis.
(c) If at any time an Investment Company Event, a
Regulatory Capital Event or a Tax Event (each as defined below, and each a
"Special Event") occurs, the Debenture Issuer shall have the right (subject to
the conditions set forth in the Indenture) at any time prior to the Initial
Optional Redemption Date, to redeem the Debentures in whole, but not in part,
within the 90 days following the occurrence of such Special Event (the ''90 Day
Period"), and, simultaneous with such redemption, to cause a Like Amount of the
Securities to be redeemed by the Trust at the Redemption Price on a Pro Rata
basis.
"Investment Company Event" shall mean the receipt by the Trust
of an opinion of counsel experienced in such matters to the effect that as a
result of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority there is more than an insubstantial risk that the Trust is
or will be considered an "investment company" that is required to be registered
under the Investment Company Act, which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date
of issuance of the Capital Securities.
"Regulatory Capital Event" shall mean the reasonable
determination by the Debenture Issuer that as a result of (a) 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
thereof or therein or any rules, guidelines or policies of an applicable
regulatory authority for the Debenture Issuer or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of original
issuance of the Securities, there is more than an insubstantial risk that the
Debenture Issuer will not be entitled to treat an amount equal to the
liquidation amount of the Capital Securities as Tier 1 Capital (or its then
equivalent if the Sponsor were subject to such capital requirement) for
purposes of the risk-based capital adequacy guidelines of the Federal Reserve
Board or those in effect and applicable to the Debenture Issuer.
A "Tax Event" shall occur upon receipt by the Debenture Issuer
and the Trust of an opinion of independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective
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change) in, the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, or (b) any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of original
issuance of the Securities, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or accrued on
the Debentures, (ii) the interest payable by the Debenture Issuer on the
Debentures is not, or within 90 days of the date of such opinion will not be,
deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within 90 days
of the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
(d) On and from the date fixed by the Trustees for any
distribution of Debentures and liquidation of the Trust: (i) the Securities
will no longer be deemed to be outstanding, (ii) the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee), as the Holder of the
Capital Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such
distribution, and (iii) any certificates representing Securities not held by
the Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) will be deemed to represent beneficial interests in a Like Amount of
Debentures until such certificates are presented to the Debenture Issuer or its
agent for transfer or reissue.
(e) The Trust may not redeem fewer than all the
outstanding Securities unless all accumulated and unpaid Distributions have
been paid on all Securities for all quarterly Distribution periods terminating
on or before the date of redemption.
(f) The procedure with respect to redemptions or
distributions of Securities shall be as follows:
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail
to each Holder to be redeemed or exchanged not fewer than 30 nor more
than 60 days before the date fixed for redemption or exchange thereof
which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which notices are
given pursuant to this Section 4(f)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to Holders. Each
Redemption/Distribution Notice shall be addressed to the Holders at
the address of each such Holder appearing in the books and records of
the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the particular Securities to be
redeemed shall be selected on a Pro
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Rata basis (based upon Liquidation Amounts) not more than 60 nor less
than 30 days prior to the date fixed for redemption from the
outstanding Securities not previously called for redemption; provided,
however, that with respect to Holders that would be required to hold
less than 100 but more than zero Securities as a result of such
redemption, the Trust shall redeem Securities of each such Holder so
that after such redemption such Holder shall hold either 100
Securities or such Holder no longer holds any Securities, and shall
use such method (including, without limitation, by lot) as the Trust
shall deem fair and appropriate; provided, further, that any such
redemption may be made on the basis of the aggregate Liquidation
Amount of Securities held by each Holder thereof and may be made by
making such adjustments as the Trust deems fair and appropriate in
order that fractional Securities shall not thereafter remain
outstanding. With respect to Capital Securities registered in the
name of and held of record by the Clearing Agency or its nominee (or
any successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to the
Clearing Agency and disbursed by such Clearing Agency in accordance
with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice (which notice will be irrevocable),
then (A) with respect to Capital Securities issued in book-entry form,
by 12:00 noon, Eastern time, on the redemption date, the Property
Trustee will deposit irrevocably with the Clearing Agency or its
nominee (or successor Clearing Agency or its nominee) immediately
available funds sufficient to pay the applicable Redemption Price with
respect to such Capital Securities and will give the Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to
the relevant Clearing Agency Participants, and (B) with respect to
Capital Securities issued in certificated form and Common Securities,
the Property Trustee will irrevocably deposit with the paying agent
for the Capital Securities (if other than the Property Trustee) funds
sufficient to pay the applicable Redemption Price to the Holders by
check mailed to the address of the relevant Holder appearing on the
books and records of the Trust on the redemption date, and provided
further, that any such payment shall become due only upon surrender by
the Holder of the related certificated Capital Securities. If a
Redemption/ Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to the
close of business on the date of such deposit, or on the redemption
date, as applicable, Distributions will cease to accumulate on the
Securities so called for redemption and all rights of Holders so
called for redemption will cease, except the right of the Holders of
such Securities to receive the Redemption Price, but without interest
on such Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on
the Redemption Date of the Securities will be subject to the rights of
Holders at the close of business on a regular record date in respect
of a Distribution Date occurring on or prior to such Redemption Date.
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Neither the Administrators nor the Trust shall be required to
register or cause to be registered the transfer of (i) any Securities beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption or any notice of selection of Securities for redemption or (ii) any
Securities selected for redemption, except the unredeemed portion of any
Security being redeemed. If any date fixed for redemption of Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that if such
next succeeding Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day with the same
force and effect as if made on such date. If payment of the Redemption Price
with respect to any Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant to the
relevant Securities Guarantee, Distributions on such Securities will continue
to accumulate from the original redemption date to the actual date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
(v) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) with respect to Capital
Securities issued in book-entry form, the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee), (B) with
respect to Capital Securities issued in certificated form, to the
Holders thereof, and (C) with respect to the Common Securities, to the
Holders thereof.
(vi) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities laws
and banking laws), the Sponsor or any of its subsidiaries may at any
time and from time to time purchase outstanding Capital Securities by
tender, in the open market or by private agreement.
5. Voting Rights - Capital Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Trust Agreement, the Holders of the Capital
Securities will have no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee or
executing any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
5.07 of the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Capital Securities; provided, however, that where a consent
under the Indenture would
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require the consent of each holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior approval of
each Holder of the Capital Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the Capital
Securities except by subsequent vote of such Holders. The Property Trustee
shall notify each Holder of Capital Securities of any notice of default with
respect to the Debentures. In addition to obtaining the foregoing approvals of
such Holders of the Capital Securities, prior to taking any of the foregoing
actions, the Trustees shall obtain an opinion of counsel experienced in such
matters to the effect that the Trust will continue to be classified as a
grantor trust for United States federal income tax purposes after taking any
such action into account.
If an Event of Default under the Trust Agreement has occurred
and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay principal of or interest on the Debentures on the due
date (or, in the case of redemption, on the redemption date), then a Holder of
Capital Securities may institute a proceeding directly against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or
interest on a Like Amount of Debentures (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Direct
Action, the Common Securities Holder will be subordinated to the rights of such
Holder of Capital Securities to the extent of any payment made by the Debenture
Issuer to such Holder of Capital Securities in such Direct Action. Except as
provided in the second preceding sentence, or except as set forth in the first
sentence of Section 3.8(e) of the Trust Agreement, the Holders of Capital
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
Unless an Event of Default shall have occurred and be
continuing, any Trustee may be removed for cause at any time by vote of the
Holders of a Majority in Liquidation Amount of the Capital Securities voting as
a class at a meeting of the Holders of the Capital Securities. If a Debenture
Event of Default has occurred and is continuing, the Property Trustee and the
Delaware Trustee may be removed with or without cause by vote of Holders of a
Majority in Liquidation Amount of the Capital Securities voting as a class at a
meeting of Holders of the Capital Securities. In no event will the Holders of
the Capital Securities have the right to vote to appoint, remove or replace the
Administrators, which voting rights are vested exclusively in the Sponsor as
the Holder of the Common Securities. No resignation or removal of a Trustee
and no appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the Trust Agreement.
Any approval or direction of Holders of Capital Securities may
be given at a separate meeting of Holders of Capital Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which Holders of Capital Securities are entitled to vote to be
mailed to each Holder of record of Capital Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter
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upon which written consent is sought and (iii) instructions for the delivery of
proxies or consent.
No vote or consent of the Holders of the Capital Securities
will be required for the Trust to redeem and cancel Capital Securities or to
distribute the Debentures in accordance with the Trust Agreement and the terms
of the Securities.
Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Capital Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b) and 7 or as
otherwise required by law and the Trust Agreement, the Holders of the Common
Securities will have no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
5.07 of the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Common Securities; provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior approval of each Holder of the Common Securities. The
Trustees shall not revoke any action previously authorized or approved by a
vote of the Holders of the Common Securities except by subsequent vote of such
Holders. The Property Trustee shall notify each Holder of Common Securities of
any notice of default with respect to the Debentures. In addition to obtaining
the foregoing approvals of such Holders of the Common Securities, prior to
taking any of the foregoing actions, the Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the Trust will continue
to be classified as a grantor trust for United States federal income tax
purposes after taking any such action into account.
If an Event of Default under the Trust Agreement has occurred
and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay principal of or interest on the Debentures on the due
date (or in the case of redemption, on the redemption date), then a Holder of
Common Securities may institute a Direct Action directly against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or
interest on a Like Amount of Debentures on or after the respective due date
specified in the Debentures. In connection with such Direct Action, the rights
of
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the Common Securities Holder will be subordinated to the rights of Holders of
Capital Securities in respect of any payment from the Debenture Issuer in such
Direct Action. Except as provided in the second preceding sentence, the Holders
of Common Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Administrators will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought, and (iii) instructions for
the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Trust Agreement and the terms
of the Securities.
7. Amendments to Trust Agreement.
In addition to the requirements set out in Section 12.1 of the
Trust Agreement, the Trust Agreement may be amended from time to time by the
Sponsor, the Property Trustee and the Administrators without the consent of the
Holders to (i) cure any ambiguity, correct or supplement any provisions in the
Trust Agreement that may be inconsistent with any other provisions, or make any
other provisions with respect to matters or questions arising under the Trust
Agreement which shall not be inconsistent with the other provisions of the
Trust Agreement, (ii) modify, eliminate or add to any provisions of the Trust
Agreement to such extent as shall be necessary to ensure that the Trust will
not be classified as an association taxable as a corporation or to enable the
Trust to qualify as a grantor trust at all times that any Securities are
outstanding, in each case 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; or (iii) modify, eliminate or add any provisions of
the Trust Agreement to such extent as shall be necessary to enable the Trust or
the Sponsor to conduct an Exchange Offer in the manner contemplated by the
Registration Rights Agreement; provided, however, that in each case (other than
an amendment pursuant to clause (ii) above), such action shall not adversely
affect in any material respect the interests of any Holder, and any such
amendments of the Trust Agreement shall become effective when notice thereof is
given to the Holders. The Trust Agreement may also be amended by the Trustees
and the Sponsor with (i) the consent of Holders representing a Majority in
Liquidation Amount of all outstanding Securities, and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States federal
I- 12
<PAGE> 89
income tax purposes or the Trust's exemption from status as an Investment
Company under the Investment Company Act; provided, however, that, without the
consent of each Holder of Trust Securities, the Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on, or the
payment required to be made in respect of, the Trust Securities as of a
specified date or (ii) restrict the right of a Holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each
Holder according to the aggregate liquidation amount of the Securities held by
such Holder in relation to the aggregate liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default under the
Trust Agreement has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Capital Securities pro rata according to the aggregate liquidation amount of
Capital Securities held by such Holder relative to the aggregate liquidation
amount of all Capital Securities outstanding and then, only after satisfaction
of all amounts owed to the Holders of the Capital Securities, to each Holder of
Common Securities pro rata according to the aggregate liquidation amount of
Common Securities held by such Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
9. Ranking.
The Capital Securities rank pari passu with the Common
Securities and payment thereon shall be made Pro Rata with the Common
Securities, except that, if an Event of Default under the Trust Agreement
occurs and is continuing, no payments in respect of Distributions on, or
payments upon liquidation, redemption or otherwise with respect to, the Common
Securities shall be made until the Holders of the Capital Securities shall be
paid in full, all Allocable Amounts due on or in respect of, the Distributions,
Redemption Price, Liquidation Distribution and any other payments to which they
are entitled at such time.
10. Acceptance of Capital Securities Guarantee, Indenture and
Debentures.
Each Holder of Capital Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Capital Securities
Guarantee, the Indenture and the Debentures, as applicable, including the
subordination provisions therein.
11. No Preemptive Rights.
Neither the issuance of Capital Securities, nor the issuance
of Common Securities is subject to preemptive or other similar rights. The
Holders shall have no preemptive or similar rights to subscribe for any
additional securities.
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<PAGE> 90
12. Miscellaneous.
These terms constitute a part of the Trust Agreement.
The Sponsor will provide a copy of the Trust Agreement, the
Capital Securities Guarantee or the Common Securities Guarantee, as applicable,
and the Indenture (including any supplemental indenture) to a Holder without
charge upon written request to the Trust at its principal place of business.
I- 14
<PAGE> 91
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY,
INSERT: THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING
OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE
CLEARING AGENCY. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL
SECURITY AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY
OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER
NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE
A1 - 1
<PAGE> 92
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH CNB FINANCIAL CORP.
(THE "CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE OWNER OF THIS
CAPITAL SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY) ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS CAPITAL SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF CNBF CAPITAL TRUST I (THE
"TRUST") AND THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A
LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
MEMORANDUM DATED AUGUST 4, 1999. SUCH HOLDER FURTHER AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
ALSO AGREES, REPRESENTS AND WARRANTS THAT: (A) THE PURCHASE AND HOLDING OF THE
CAPITAL SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) CNB AND THE
ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN THE MEANING OF SECTION 3(21) OF
ERISA AND THE REGULATIONS THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST IN
THE CAPITAL SECURITIES OR THE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURES, AND (C) IN PURCHASING THE CAPITAL SECURITIES SUCH PERSON APPROVES
THE PURCHASE OF THE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES AND THE
APPOINTMENT OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE.
A1 - 2
<PAGE> 93
THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100
CAPITAL SECURITIES) AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED
TRANSFER OF CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
THAN $100,000 (100 CAPITAL SECURITIES) SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO
BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH
CAPITAL SECURITIES.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF
IS DEEMED TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS
AGREEMENT AMONG CNB FINANCIAL CORP., CNBF CAPITAL TRUST I, AND RYAN, BECK &
CO., INC., DATED AUGUST 6, 1999 (THE "REGISTRATION RIGHTS AGREEMENT"). CNB
FINANCIAL CORP. WILL PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A
HOLDER WITHOUT CHARGE UPON WRITTEN REQUEST TO CNBF CAPITAL TRUST I AT ITS
PRINCIPAL PLACE OF BUSINESS.
A1 - 3
<PAGE> 94
Certificate Number: 1 Aggregate Liquidation
Amount: $18,000,000
CUSIP Number:12613WAA1
Certificate Evidencing Capital Securities
Of
CNBF CAPITAL TRUST I
Floating Rate Capital Securities, Series A
(liquidation amount $1,000 per Capital Security)
CNBF Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of $18,000,000 in aggregate
liquidation amount of Capital Securities of the Trust](1) [the aggregate
liquidation amount of Capital Securities of the Trust specified in Schedule A
hereto](2) representing undivided preferred beneficial interests in the assets
of the Trust designated the Floating Rate Capital Securities, Series A
(liquidation amount $1,000 per Capital Security) (the "Capital Securities").
The Capital Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Trust Agreement of the
Trust, dated as of August 6, 1999, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of the Capital
Securities as set forth in Annex I to the Trust Agreement. Capitalized terms
used but not defined herein shall have the meaning given them in the Trust
Agreement. The Sponsor will provide a copy of the Trust Agreement, the Series A
Capital Securities Guarantee and the Indenture (including any supplemental
indenture) to a Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this Certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder and to the benefits
of the Series A Capital Securities Guarantee to the extent provided therein.
By acceptance hereof, the Holder agrees, for United States
federal income tax purposes, to treat the Debentures as indebtedness and the
Capital Securities as evidence of indirect beneficial ownership in the
Debentures.
- --------------------
(1) Insert in Definitive Capital Security only.
(2) Insert in Global Capital Securities only.
A1 - 4
<PAGE> 95
IN WITNESS WHEREOF, the Trust has executed this certificate this 6th day of
August, 1999.
CNBF CAPITAL TRUST I
By:
-------------------------------------
Peter J. Corso
Administrator
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Floating Rate Capital Securities, Series A of CNBF
CAPITAL TRUST I referred to in the within-mentioned Trust Agreement.
Dated: August 6, 1999
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Property Trustee
By:
-------------------------------------
Authorized Signatory
A1 - 5
<PAGE> 96
[FORM OF REVERSE OF SECURITY]
Distributions on each Capital Security will be payable at a
rate per annum, reset quarterly, equal to 3-month LIBOR (as defined in the
Trust Agreement) plus 275 basis points (the "Coupon Rate"), such rate being the
rate of interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in the Registration Rights Agreement) with respect to the
Debentures. The term "Distributions," as used herein, includes such cash
distributions and any and all such interest and Liquidated Damages, if any,
payable unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor.
Distributions on the Capital Securities will be cumulative,
will accumulate from the most recent date to which Distributions have been paid
or, if no Distributions have been paid, from August 6, 1999 and will be payable
quarterly in arrears, on March 31, June 30, September 30 and December 31 of
each year, commencing September 30, 1999, except as otherwise described below.
Distributions will be computed on the basis of the actual number of days
elapsed in such period and a 360-day year. As long as no Event of Default has
occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 20 consecutive calendar quarterly periods, including the
first such quarterly period during such extension period (each an "Extension
Period"), provided that no Extension Period shall end on a date other than an
Interest Payment Date for the Debentures or extend beyond the Maturity Date of
the Debentures. As a consequence of such deferral, Distributions will also be
deferred. Notwithstanding such deferral, quarterly Distributions will continue
to accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the applicable periodic Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any Extension Period,
the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension Period, may
not (i) exceed 20 consecutive quarterly periods, including the first quarterly
period during such Extension Period, (ii) end on a date other than an Interest
Payment Date for the Debentures or (iii) extend beyond the Maturity Date of the
Debentures. Payments of accumulated Distributions will be payable to Holders as
they appear on the books and records of the Trust on the record date
immediately preceding the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
A1 - 6
<PAGE> 97
Subject to receipt by the Sponsor of any and all required
regulatory approvals and to certain other conditions set forth in the Trust
Agreement and the Indenture, the Property Trustee may, at the direction of the
Sponsor, at any time dissolve the Trust and after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, cause the Debentures
to be distributed to the Holders of the Securities in liquidation of the Trust
or, simultaneously with any redemption of the Debentures, cause a Like Amount
of the Securities to be redeemed by the Trust.
The Capital Securities shall be redeemable as provided in the
Trust Agreement.
A1 - 7
<PAGE> 98
-----------------------------
ASSIGNMENT
-----------------------------
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers this Capital
Security Certificate to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Assignee's social security or tax identification number)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Address and zip code of assignee)
and irrevocably appoints
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
agent
- --------------------------------------------------------------------------
to transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee:
---------------------------------------------------------
- ----------------------------
Signature must be guaranteed by an ''eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A1 - 8
<PAGE> 99
[INCLUDE THE FOLLOWING IF THE CAPITAL SECURITY BEARS A RESTRICTED SECURITIES
LEGEND]
In connection with any transfer of any of the Capital Securities evidenced by
this Certificate, the undersigned confirms that such Capital Securities are
being:
CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without
transfer; or
(2) [ ] transferred pursuant to and in compliance with Rule
144A under the Securities Act of 1933, as amended; or
(3) [ ] transferred to an institutional "accredited investor"
within the meaning of subparagraph (a)(1), (2), (3)
or (7) of Rule 501 under the Securities Act of 1933,
as amended, that is acquiring the Capital Securities
for its own account, or for the account of such an
institutional "accredited investor," for investment
purposes and not with a view to, or for offer or sale
in connection with, any distribution in violation of
the Securities Act of 1933, as amended; or
(4) [ ] transferred pursuant to another available exemption
from the registration requirements of the Securities
Act of 1933, as amended; or
(5) [ ] transferred pursuant to an effective registration
statement.
Unless one of the boxes is checked, the Registrar will refuse to register any
of the Capital Securities evidenced by this Certificate in the name of any
Person other than the Holder hereof; provided, however, that if box (3) or (4)
is checked, the Registrar may require, prior to registering any such transfer
of the Capital Securities, such legal opinions, certifications and other
information as the Trust has reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act of 1933, as amended,
such as the exemption provided by Rule 144 under such Act; provided, further,
that (i) if box (2) is checked, by acceptance of this Certificate, the
transferee shall be deemed to have certified that it is a "qualified
institutional buyer" (as defined in Rule 144A) ("QIB") acquiring the Capital
Securities for its own account or for the account of another QIB over which it
exercises sole investment discretion and that it is aware that the Holder is
relying upon the exemption from registration afforded by Rule144A in respect of
the Holder's transfer of Capital Securities to it or (ii) if box (3) is
checked, the transferee must also provide to the Registrar a Transferee Letter
of Representation in the form attached to the Offering Memorandum of the Trust
dated August 4, 1999; provided, further, that after the date that a
registration statement has been filed and so long as such Registration
Statement continues to be effective, only then may the Registrar permit
transfers for which box (5) has been checked.
----------------------------
Signature
A1 - 9
<PAGE> 100
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS COMMON SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS COMMON SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS COMMON SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH CNB FINANCIAL
CORP. (THE "CORPORATION") OR ANY "AFFILIATE" OF THE CORPORATION WAS THE OWNER
OF THIS COMMON SECURITY (OR ANY PREDECESSOR OF THIS COMMON SECURITY) ONLY (A)
TO THE CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS COMMON
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS COMMON SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF CNBF CAPITAL TRUST I (THE
"TRUST") AND THE CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
PURSUANT TO CLAUSE (D) TO REQUIRE THAT TRANSFEROR DELIVER TO THE TRUST A LETTER
FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
MEMORANDUM DATED AUGUST 4, 1999. SUCH HOLDER FURTHER AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS COMMON SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
A2 - 1
<PAGE> 101
Certificate Evidencing Common Securities
of
CNBF CAPITAL TRUST I
Floating Rate Common Securities
(liquidation amount $1,000 per Common Security)
CNBF CAPITAL TRUST I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that CNB
Financial Corp. (the "Holder") is the registered owner of 720 common securities
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the Floating Rate Common Securities (liquidation amount $1,000
per Common Security) (the "Common Securities"). Subject to the terms of the
Trust Agreement (as defined below), the Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this Certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended
and Restated Trust Agreement of the Trust dated as of August 6, 1999, as the
same may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth in Annex I to
the Trust Agreement. Capitalized terms used but not defined herein shall have
the meaning given them in the Trust Agreement. The Sponsor will provide a copy
of the Trust Agreement, the Common Securities Guarantee and the Indenture
(including any supplemental indenture) to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this Certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder and to the benefits
of the Common Securities Guarantee to the extent provided therein.
By acceptance thereof, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and the
Common Securities as evidence of indirect beneficial ownership in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 6th day of August, 1999.
CNBF CAPITAL TRUST I
By:
-------------------------------------
Peter J. Corso
Administrator
A2 - 2
<PAGE> 102
[FORM OF REVERSE OF SECURITY]
Distributions on each Common Security will be payable at a
rate per annum, reset quarterly, equal to 3-month LIBOR (as defined in the
Trust Agreement) plus 275 basis points (the "Coupon Rate"), such rate being the
rate of interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in the Registration Rights Agreement) with respect to the
Debentures. The term "Distributions", as used herein, includes such cash
distributions and any and all such interest and Liquidated Damages, if any,
payable unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds legally available
therefor.
Distributions on the Common Securities will be cumulative,
will accrue from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from August 6, 1999 and will be payable
quarterly in arrears, on March 31, June 30, September 30 and December 31, of
each year, commencing June 30, 1999, except as otherwise described below.
Distributions will be computed on the basis of the actual number of days
elapsed in such period and a 360-day year. As long as no Event of Default has
occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debentures for
a period not exceeding 20 consecutive calendar quarterly periods, including the
first such quarterly period during such extension period (each an "Extension
Period"), provided that no Extension Period shall end on a date other than an
Interest Payment Date for the Debentures or extend beyond the Maturity Date of
the Debentures. As a consequence of such deferral, Distributions will also be
deferred. Notwithstanding such deferral, quarterly Distributions will continue
to accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the applicable periodic Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any Extension Period,
the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period, together
with all such previous and further extensions within such Extension Period, may
not (i) exceed 20 consecutive quarterly periods, including the first quarterly
period during such Extension Period, (ii) end on a date other than an Interest
Payment Date for the Debentures or (iii) extend beyond the Maturity Date of the
Debentures. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on the record date
immediately preceding the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
Subject to the receipt by the Sponsor of any and all required
regulatory approvals and to certain other conditions set forth in the Trust
Agreement and the Indenture, the Property Trustee may, at the direction of the
Sponsor, at any time dissolve the Trust and cause the Debentures to be
distributed to the Holders of the Securities in liquidation of the Trust or,
A2 - 3
<PAGE> 103
simultaneously with any redemption of the Debentures, cause a Like Amount of
the Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the
Trust Agreement.
Under certain circumstances, the rights of the holders of the
Common Securities shall be subordinate to the rights of the holders of the
Capital Securities, as provided in the Trust Agreement.
A2 - 4
<PAGE> 1
EXHIBIT 4.5
FORM OF SERIES B CAPITAL SECURITY CERTIFICATE
FORM OF FACE OF SECURITY
THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE
MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE
CLEARING AGENCY. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO
TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER OF THIS CAPITAL
SECURITY AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY
OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE
OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO THE TRUST OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL SECURITY ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF ALSO
AGREES, REPRESENTS AND WARRANTS THAT: (A) THE PURCHASE AND HOLDING OF THE
CAPITAL SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY PTCE 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION, (B) CNB AND THE
ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN THE MEANING OF SECTION 3(21) OF
ERISA AND THE REGULATIONS THEREUNDER, WITH RESPECT TO SUCH PERSON'S INTEREST IN
THE CAPITAL SECURITIES OR THE JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURES, AND (C) IN PURCHASING THE CAPITAL SECURITIES SUCH PERSON APPROVES
THE PURCHASE OF THE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES AND THE
APPOINTMENT OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE.
<PAGE> 2
THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100 CAPITAL
SECURITIES) AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF
CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000
(100 CAPITAL SECURITIES) SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH CAPITAL
SECURITIES.
<PAGE> 3
Certificate Number:__________ Aggregate Liquidation
Amount: $_______________
CUSIP Number: ____________
Certificate Evidencing Capital Securities
of
CNBF CAPITAL TRUST I
Floating Rate Capital Securities, Series B
(liquidation amount $1,000 per Capital Security)
CNBF Capital Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Cede & Co.
(the "Holder") is the registered owner of $__________ in aggregate liquidation
amount of Series B Capital Securities of the Trust representing undivided
preferred beneficial interests in the assets of the Trust designated the
Floating Rate Capital Securities, Series B (liquidation amount $1,000 per
Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities represented
hereby are issued and shall in all respects be subject to the provisions of the
Amended and Restated Trust Agreement of the Trust, dated as of August 6, 1999,
as the same may be amended from time to time (the "Trust Agreement"), including
the designation of the terms of the Capital Securities as set forth in Annex I
to the Trust Agreement. Capitalized terms used but not defined herein shall have
the meaning given them in the Trust Agreement. The Sponsor will provide a copy
of the Trust Agreement, the Capital Securities Guarantee and the Indenture
(including any supplemental indenture) to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this Certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder and to the benefits of the
Capital Securities Guarantee to the extent provided therein.
By acceptance hereof, the Holder agrees, for United States federal
income tax purposes, to treat the Debentures as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in the Debentures.
<PAGE> 4
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____ day of _____________, 1999.
CNBF CAPITAL TRUST I
By:
------------------------
Peter J. Corso
Administrator
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Floating Rate Capital Securities, Series B of CNBF
CAPITAL TRUST I referred to in the within-mentioned Trust Agreement.
Dated: ____________, 1999
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Property Trustee
By:
------------------------
Authorized Signatory
<PAGE> 5
[FORM OF REVERSE OF SECURITY]
Distributions on each Capital Security will be payable at a rate per
annum, reset quarterly, equal to 3-month LIBOR (as defined in the Trust
Agreement) plus 275 basis points (the "Coupon Rate"), such rate being the rate
of interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement, in certain
limited circumstances the Debenture Issuer will be required to pay Liquidated
Damages (as defined in the Registration Rights Agreement) with respect to the
Debentures. The term "Distributions," as used herein, includes such cash
distributions and any and all such interest and Liquidated Damages, if any,
payable unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property Trustee
and to the extent the Property Trustee has funds legally available therefor.
Distributions on the Capital Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from August 6, 1999 and will be payable
quarterly in arrears, on March 31, June 30, September 30 and December 31 of each
year, commencing September 30, 1999, except as otherwise described below.
Distributions will be computed on the basis of the actual number of days elapsed
in such period and a 360-day year. As long as no Event of Default has occurred
and is continuing under the Indenture, the Debenture Issuer has the right under
the Indenture to defer payments of interest by extending the interest payment
period at any time and from time to time on the Debentures for a period not
exceeding 20 consecutive calendar quarterly periods, including the first such
quarterly period during such extension period (each an "Extension Period"),
provided that no Extension Period shall end on a date other than an Interest
Payment Date for the Debentures or extend beyond the Maturity Date of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Notwithstanding such deferral, quarterly Distributions will continue
to accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the applicable periodic Coupon Rate compounded quarterly during
any such Extension Period. Prior to the termination of any Extension Period, the
Debenture Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period, together with all
such previous and further extensions within such Extension Period, may not (i)
exceed 20 consecutive quarterly periods, including the first quarterly period
during such Extension Period, (ii) end on a date other than an Interest Payment
Date for the Debentures or (iii) extend beyond the Maturity Date of the
Debentures. Payments of accumulated Distributions will be payable to Holders as
they appear on the books and records of the Trust on the record date immediately
preceding the end of the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
<PAGE> 6
Subject to receipt by the Sponsor of any and all required regulatory
approvals and to certain other conditions set forth in the Trust Agreement and
the Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time dissolve the Trust and after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, cause the Debentures to be distributed
to the Holders of the Securities in liquidation of the Trust or, simultaneously
with any redemption of the Debentures, cause a Like Amount of the Securities to
be redeemed by the Trust.
The Capital Securities shall be redeemable as provided in the Trust
Agreement.
<PAGE> 7
----------
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers this Capital
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent
- ---------------------------------------------------------------------
to transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
-------------
Signature:
---------------------------------------------------------
(Sign exactly as your name appears on the other side of this Capital Security
Certificate)
Signature Guarantee:
-----------------------------------------------
- -----------------
Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE> 1
EXHIBIT 4.6
==========================================
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
CNB FINANCIAL CORP.
Dated as of ________, 1999
===========================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
<S> <C> <C>
SECTION 1.1 Definitions and Interpretation .................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ...............................................6
SECTION 2.2 Lists of Holders of Securities .................................................6
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee ............................6
SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee........................7
SECTION 2.5 Evidence of Compliance with Conditions Precedent ...............................7
SECTION 2.6 Waiver of Events of Default ....................................................7
SECTION 2.7 Notice of Events of Default ....................................................7
SECTION 2.8 Conflicting Interests ..........................................................8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee...................8
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee.........................10
SECTION 3.3 Not Responsible for Recitals or Issuance of Series
B Capital Securities Guarantee.................................................11
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility .............................12
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee .............................................................12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee .....................................................................13
SECTION 5.2 Waiver of Notice and Demand ...................................................14
SECTION 5.3 Obligations Not Affected ......................................................14
SECTION 5.4 Rights of Holders .............................................................15
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 5.5 Guarantee of Payment ..........................................................15
SECTION 5.6 Subrogation ...................................................................15
SECTION 5.7 Independent Obligations .......................................................15
ARTICLE VI
SECTION 6.1 Ranking........................................................................16
ARTICLE VII
TERMINATION
SECTION 7.1 Termination....................................................................16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Compensation and Indemnification...............................................16
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.........................................................17
SECTION 9.2 Amendments.....................................................................17
SECTION 9.3 Notices........................................................................18
SECTION 9.4 Benefit........................................................................19
SECTION 9.5 Governing Law..................................................................19
SECTION 9.6 Counterparts...................................................................19
</TABLE>
ii
<PAGE> 4
CROSS REFERENCE TABLE
<TABLE>
<CAPTION>
Section of Trust
Indenture Act of Section of Guarantee
1939, as amended Agreement
---------------- ---------
<S> <C>
310(a) ................................................... 4.1(a)
310(b) ................................................... 4.1(c), 2.8
310(c) ................................................... Inapplicable
311(a) ................................................... 2.2(b)
311(b) ................................................... 2.2(b)
311(c) ................................................... Inapplicable
312(a) ................................................... 2.2(a)
312(b) ................................................... 2.2(b)
313 ................................................... 2.3
314(a) ................................................... 2.4
314(b) ................................................... Inapplicable
314(c) ................................................... 2.5
314(d) ................................................... Inapplicable
314(e) ................................................... 1.1, 2.5, 3.2
314(f) ................................................... 2.1, 3.2
315(a) ................................................... 3.1(d)
315(b) ................................................... 2.7
315(c) ................................................... 3.1(c)
315(d) ................................................... 3.1(d)
315(e) ................................................... Inapplicable
316(a) ................................................... 1.1, 2.6, 5.4
316(b) ................................................... 5.3
316(c) ................................................... 9.2
317(a) ................................................... Inapplicable
317(b) ................................................... Inapplicable
318(a) ................................................... 2.1(a)
318(b) ................................................... Inapplicable
318(c) ................................................... 2.1(b)
</TABLE>
- -----------------
* This Cross-Reference Table does not constitute part of this Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
iii
<PAGE> 5
EXHIBIT 4.6
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
This SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT (the "Series B
Capital Securities Guarantee"), dated as of __________, 1999, is executed and
delivered by CNB FINANCIAL CORP., a New York corporation (the "Guarantor"), and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as trustee (the
"Capital Securities Guarantee Trustee" or "Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Series B Capital Securities
(as defined herein) of CNBF CAPITAL TRUST I, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of August 6, 1999, by and among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the Holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
issued on August 6, 1999, 18,000 capital securities, having an aggregate
liquidation amount of $18,000,000, such capital securities being designated the
Floating Rate Capital Securities, Series A (collectively the "Series A Capital
Securities");
WHEREAS, pursuant to an Exchange Offer (as defined in the Trust
Agreement), the Issuer is issuing on the date hereof [ ] capital securities,
having an aggregate liquidation amount of $[ ], such capital securities being
designated Series B Floating Rate Capital Securities (collectively, the "Series
B Capital Securities") in exchange for the same liquidation amount of Series A
Capital Securities;
WHEREAS, as incentive for the Holders to exchange the Series B
Capital Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Series B Capital Securities Guarantee, to
pay the Guarantee Payments (as defined herein) to the Holders of the Series B
Capital Securities, and the Guarantor agrees to make certain other payments on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Series B Capital Securities, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Series B
Capital Securities Guarantee for the benefit of the Holders.
<PAGE> 6
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Series B Capital Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Series B Capital Securities
Guarantee but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Trust Agreement as at the date of execution
of this Series B Capital Securities Guarantee have the same meaning when used in
this Series B Capital Securities Guarantee unless otherwise defined in this
Series B Capital Securities Guarantee,
(c) a term defined anywhere in this Series B Capital Securities
Guarantee has the same meaning throughout;
(d) all references to "the Series B Capital Securities Guarantee" or
"this Series B Capital Securities Guarantee" are references to this Series B
Capital Securities Guarantee as modified, supplemented or amended from time to
time;
(e) all references in this Series B Capital Securities Guarantee to
Articles and Sections references are to Articles and Sections of this Series B
Capital Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Series B Capital Securities Guarantee, unless otherwise
defined in this Series B Capital Securities Guarantee or unless the context
otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" shall mean any day other than a Saturday or a Sunday,
or a day on which banking institutions in Wilmington, Delaware, New York, New
York, or the State of New York are authorized or required by law or executive
order to remain closed or a day on which the principal corporate trust office of
the property trustee is closed for business.
"Capital Securities Guarantee Trustee" shall mean Wilmington Trust
Company as Trustee under the Series B Capital Securities Guarantee, until a
Successor Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment
-2-
<PAGE> 7
pursuant to the terms of this Series B Capital Securities Guarantee and
thereafter means each such Successor Capital Securities Guarantee Trustee.
"Common Securities" shall mean the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" shall mean the office of the Capital
Securities Guarantee Trustee at which the corporate trust business of the
Capital Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Agreement is located at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.
"Covered Person" shall mean any Holder or beneficial owner of Series
B Capital Securities.
"Debentures" shall mean the series of subordinated debt securities of
the Guarantor designated the Floating Rate Junior Subordinated Deferrable
Interest Debentures due September 30, 2029, Series B, held by the Property
Trustee (as defined in the Trust Agreement) of the Issuer.
"Event of Default" shall mean a default by the Guarantor on any of
its payment or other obligations under this Series B Capital Securities
Guarantee; provided, however, that, except with respect to default in respect of
any Guarantee Payment, no default by the Guarantor hereunder shall constitute an
Event of Default unless the Guarantor shall have received written notice of the
default and shall not have cured such default within 60 days after receipt
thereof.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Series B Capital
Securities, to the extent not paid or made by or on behalf of the Issuer: (i)
any accumulated and unpaid Distributions (as defined in the Trust Agreement)
that are required to be paid on such Series B Capital Securities, to the extent
the Issuer has funds legally available therefor at such time, (ii) the
redemption price, (the "Redemption Price"), to the extent the Issuer has funds
legally available therefor at such time, with respect to any Series B Capital
Securities called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, winding up or liquidation of the Issuer (other than in
connection with the distribution of Debentures to the Holders in exchange for
Series B Capital Securities or in connection with the redemption of the Series B
Capital Securities, in each case as provided in the Trust Agreement), the lesser
of (a) the aggregate of the liquidation amount and all accumulated and unpaid
Distributions on the Series B Capital Securities to the date of payment, to the
extent the Issuer has funds legally available therefor at such time, and (b) the
amount of assets of the Issuer remaining available for distribution to Holders
after satisfaction of liabilities to creditors of the Issuer as required by
applicable law (in either case, the "Liquidation Distribution"). If an Event of
Default has occurred and is continuing, no Guarantee Payments under the Common
Securities Guarantee with respect to the Common Securities or any guarantee
payment under the Common Securities Guarantee or any Other Common Securities
Guarantee shall be made until the Holders of
-3-
<PAGE> 8
Series B Capital Securities shall be paid in full the Guarantee Payments to
which they are entitled under this Series B Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Series B Capital Securities; provided, however,
that, in determining whether the holders of the requisite percentage of Series B
Capital Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or the Capital Securities Guarantee
Trustee.
"Indemnified Person" shall mean the Capital Securities Guarantee
Trustee (including in its individual capacity), any Affiliate of the Capital
Securities Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Capital Securities Guarantee Trustee.
"Indenture" shall mean the Indenture, dated as of August 6, 1999,
between CNB Financial Corp., as issuer of Debentures (the "Debenture Issuer"),
and Wilmington Trust Company, as trustee, pursuant to which the Debentures are
to be issued to the Property Trustee of the Issuer.
"Majority in Liquidation Amount of the Series B Capital Securities"
shall mean, except as provided by the Trust Indenture Act, a vote by Holder(s)
of Series B Capital Securities, voting separately as a class, of more than 50%
of the aggregate liquidation amount (including the amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Distributions
to the date upon which the voting percentages are determined) of all outstanding
Series B Capital Securities.
"Officers' Certificate" shall mean, with respect to any Person, a
certificate signed by the Chairman, the Chief Executive Officer, the President,
an Executive or Senior Vice President, a Vice President, the Chief Financial
Officer or the Secretary or an Assistant Secretary. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Series B Capital Securities Guarantee shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenants or conditions and the definitions
relating thereto;
(b) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(c) a statement as to whether or not, in the opinion of such officer,
such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
"Other Guarantees" in the Common Securities Guarantee.
"Other Debentures" shall mean all junior subordinated debentures,
other than the Debentures and the Series A Debentures (as defined in the
Indenture), issued by the
-4-
<PAGE> 9
Guarantor from time to time and sold to trusts other than the Issuer to be
established by the Guarantor (if any), in each case similar to the Issuer.
"Other Guarantees" shall mean all guarantees, other than this Series
B Capital Securities Guarantee and the Series A Capital Securities Guarantee, to
be issued by the Guarantor with respect to capital securities (if any) similar
to the Series B Capital Securities, issued by trusts other than the Issuer to be
established by the Guarantor (if any), in each case similar to the Issuer.
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of August 6, 1999, by and among the Guarantor, the Issuer
and the Initial Purchasers named therein, as such agreement may be amended,
modified or supplemented from time to time.
"Responsible Officer" shall mean, when used with respect to the
Capital Securities Guarantee Trustee, any officer assigned to the Corporate
Trust Administration Office, including any managing director, vice president,
assistant vice president, assistant treasurer, assistant secretary or any other
officer of the Capital Securities Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Series B Capital
Securities Guarantee, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Successor Capital Securities Guarantee Trustee" shall mean a
successor Capital Securities Guarantee Trustee possessing the qualifications to
act as Capital Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
"Trust Securities" shall mean the Common Securities and the Series B
Capital Securities and Series A Capital Securities, collectively.
-5-
<PAGE> 10
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Series B Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Series B Capital Securities Guarantee and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Series B Capital
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties
shall control. If any provision of this Capital Securities Guarantee modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the modified or excluded provision of the Trust Indenture Act shall be
deemed to apply to this Capital Securities Guarantee as so modified or excluded,
as the case may be.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Capital Securities Guarantee
Trustee (unless the Capital Securities Guarantee Trustee is otherwise the
registrar of the Capital Securities) with a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Series B Capital Securities ("List of Holders") as of such
date, (i) within fourteen (14) days after each record date for payment of
Distributions (as defined in the Trust Agreement), and (ii) at any other time
within 30 days of receipt by the Guarantor of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Capital Securities Guarantee Trustee; provided, however, that the
Guarantor shall not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Capital Securities Guarantee Trustee by the Guarantor. The Capital
Securities Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall comply with its
obligations under Sections 31l(a), 31l(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
Before January 31 of each year, commencing January 31, 2000, the
Capital Securities Guarantee Trustee shall provide to the Holders of the Series
B Capital Securities such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Capital Securities Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
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SECTION 2.4 Periodic Reports to Capital Securities Guarantee Trustee
The Guarantor shall provide to the Capital Securities Guarantee
Trustee and the Holders such documents, reports and information (if any) as are
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act,
provided that such documents, reports and information shall be required to be
provided to the Securities Exchange Commission only if this Series B Capital
Securities Guarantee has been qualified under the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities Guarantee
Trustee such evidence of compliance with the conditions precedent, if any,
provided for in this Series B Capital Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Waiver of Events of Default
The Holders of a Majority in Liquidation Amount of Series B Capital
Securities may, by vote, on behalf of the Holders of all of the Series B Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Series B Capital Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Notice of Events of Default
(a) The Capital Securities Guarantee Trustee shall, after the
occurrence of an Event of Default with respect to this Series B Capital
Securities Guarantee, transmit by mail, first class postage prepaid, to all
Holders of the Series B Capital Securities, notices of all Events of Default
known to the Capital Securities Guarantee Trustee, unless such Events of Default
have been cured before the giving of such notice; provided, however, that,
except in the case of an Event of Default arising from the non-payment of any
Guarantee Payment, the Capital Securities Guarantee Trustee shall be protected
in withholding such notice if and so long as a Responsible Officer of the
Capital Securities Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Series B
Capital Securities.
(b) The Capital Securities Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Capital Securities Guarantee
Trustee shall have received written notice, or a Responsible Officer of the
Capital Securities Guarantee Trustee charged with the administration of this
Series B Capital Securities Guarantee shall have received written notice of such
Event of Default.
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SECTION 2.8 Conflicting Interests
The Trust Agreement shall be deemed to be specifically described in
this Series B Capital Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee
Trustee
(a) This Series B Capital Securities Guarantee shall be held by the
Capital Securities Guarantee Trustee for the benefit of the Holders of the
Series B Capital Securities, and the Capital Securities Guarantee Trustee shall
not transfer this Series B Capital Securities Guarantee to any Person except a
Holder of Series B Capital Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Capital Securities Guarantee Trustee on
acceptance by such Successor Capital Securities Guarantee Trustee of its
appointment to act as Successor Capital Securities Guarantee Trustee. The right,
title and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee Trustee, upon
acceptance by such Successor Capital Securities Guarantee Trustee of its
appointment hereunder, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Capital Securities Guarantee
Trustee.
(b) If an Event of Default has occurred and is continuing, the
Capital Securities Guarantee Trustee shall enforce this Series B Capital
Securities Guarantee for the benefit of the Holders of the Series B Capital
Securities.
(c) The Capital Securities Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all such Events of Default that
may have occurred, shall be obligated to perform only such duties as are
specifically set forth in this Series B Capital Securities Guarantee, and no
implied covenants shall be read into this Series B Capital Securities Guarantee
against the Capital Securities Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Capital Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Series B Capital Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Series B Capital Securities Guarantee shall
be construed to relieve the Capital Securities Guarantee Trustee from liability
for its own
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negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Capital Securities Guarantee
Trustee shall be determined solely by the express provisions of this Series
B Capital Securities Guarantee (including pursuant to Section 2.1), and the
Capital Securities Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Series B Capital Securities Guarantee (including pursuant to Section
2.1); and
(B) in the absence of bad faith on the part of the Capital Securities
Guarantee Trustee, the Capital Securities Guarantee Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Capital Securities Guarantee Trustee and conforming to the
requirements of this Series B Capital Securities Guarantee; provided,
however, that in the case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are specifically required to
be furnished to the Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Series B
Capital Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall not be liable for
any errors of judgment made in good faith by a Responsible Officer of the
Capital Securities Guarantee Trustee, unless it shall be proved that the
Capital Securities Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Capital Securities Guarantee Trustee shall not be liable
with respect to any actions taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than
Majority in Liquidation Amount of the Series B Capital Securities relating
to the time, method and place of conducting any proceeding for any remedy
available to the Capital Securities Guarantee Trustee, or exercising any
trust or power conferred upon the Capital Securities Guarantee Trustee
under this Series B Capital Securities Guarantee; and
(iv) no provision of this Series B Capital Securities Guarantee shall
require the Capital Securities Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if the
Capital Securities Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not assured to
it under the terms of this Series B Capital
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Securities Guarantee or indemnity against such risk or liability is
not reasonably assured to it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Capital Securities Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting,
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably believed by
it to be genuine and to have been signed, sent or presented by the proper
party or parties;
(ii) any direction or act of the Guarantor contemplated by this
Series B Capital Securities Guarantee shall be sufficiently evidenced by
an Officers' Certificate unless otherwise prescribed herein;
(iii) whenever, in the administration of this Series B Capital
Securities Guarantee, the Capital Securities Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Capital Securities
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate, which, upon receipt of
such request, shall be promptly delivered by the Guarantor;
(iv) the Capital Securities Guarantee Trustee may consult with legal
counsel and the advice or opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion; and
such counsel may be legal counsel to the Guarantor or any of its
Affiliates and may include any of its employees; the Capital Securities
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Series B Capital Securities
Guarantee from any court of competent jurisdiction;
(v) the Capital Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Series B Capital Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Capital Securities
Guarantee Trustee such security and indemnity which would satisfy a
reasonable person in the position of the Capital Securities Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be
requested by the Capital Securities Guarantee Trustee;
(vi) the Capital Securities Guarantee Trustee shall have no
obligation to make any investigation into the facts or matters stated in
any resolution,
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certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Capital Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(vii) the Capital Securities Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and the
Capital Securities Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(viii) any action taken by the Capital Securities Guarantee Trustee or
its agents hereunder shall bind the Holders of the Series B Capital
Securities, and the signature of the Capital Securities Guarantee Trustee
or its agents alone shall be sufficient and effective to perform any such
action; and no third party shall be required to inquire as to the
authority of the Capital Securities Guarantee Trustee to so act or as to
its compliance with any of the terms and provisions of this Series B
Capital Securities Guarantee, both of which shall be conclusively
evidenced by the Capital Securities Guarantee Trustee's or its agent's
taking such action;
(ix) whenever in the administration of this Series B Capital
Securities Guarantee the Capital Securities Guarantee Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Capital Securities
Guarantee Trustee (A) may request instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (C) shall be protected in
conclusively relying on or acting in accordance with such instructions;
and
(b) No provision of this Series B Capital Securities Guarantee shall be
deemed to impose any duty or obligation on the Capital Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Capital Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Capital Securities Guarantee
Trustee shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series
A Capital Securities Guarantee
The recitals contained in this Series B Capital Securities Guarantee
shall be taken as the statements of the Guarantor, and the Capital Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Capital Securities Guarantee Trustee
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makes no representation as to the validity or sufficiency of this Series B
Capital Securities Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Securities Guarantee
Trustee that shall
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and shall be a corporation
meeting the requirements of Section 310(c) of the Trust Indenture Act; it
being understood that if such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then, for the purposes of this Section 4.1(a)(ii) and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Capital Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Capital Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Capital Securities Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Capital Securities
Guarantee Trustee
(a) No resignation or removal of the Capital Securities Guarantee
Trustee and no appointment of a Successor Capital Securities Guarantee Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the Successor Capital Securities Guarantee Trustee by written
instrument executed by the Successor Capital Securities Guarantee Trustee and
delivered to the Holders, Capital Securities and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Capital
Securities Guarantee Trustee may resign at any time by giving written notice
thereof to the Holders. The Capital Securities Guarantee Trustee shall appoint a
successor by requesting from at least three Persons meeting the eligibility
requirements such Person's expenses and
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charges to serve as the Capital Securities Guarantee Trustee, and selecting the
Person who agrees to the lowest expenses and charges. if the instrument of
acceptance by the Successor Capital Securities Guarantee Trustee shall not have
been delivered to the Capital Securities Guarantee Trustee within 60 days after
the giving of such notice of resignation, the Capital Securities Guarantee
Trustee may petition, at the expense of the Guarantor, any court of competent
jurisdiction for the appointment of a Successor Capital Securities Guarantee
Trustee.
(c) The Capital Securities Guarantee Trustee may be removed for cause
at any time by vote of the Holders of a Majority in Liquidation Amount of the
Capital Securities.
(d) If a resigning Capital Securities Guarantee Trustee shall fail to
appoint a successor, or if a Capital Securities Guarantee Trustee shall be
removed or become incapable of acting as Capital Securities Guarantee Trustee,
or if any vacancy shall occur in the office of any Capital Securities Guarantee
Trustee for any cause, the Holders of the Capital Securities, by vote of the
Holders of record of not less than 25% in aggregate Liquidation Amount of the
Capital Securities then outstanding delivered to such Capital Securities
Guarantee Trustee, shall promptly appoint a successor Capital Securities
Guarantee Trustee. If no Successor Capital Securities Guarantee shall have been
so appointed by the Holders of the Capital Securities and such appointment
accepted by the Successor Capital Securities Guarantee Trustee, any Holder, on
behalf of himself and all others similarly situated, may petition any court of
competent jurisdiction for the appointment of a Successor Capital Securities
Guarantee Trustee.
(e) No Capital Securities Guarantee Trust shall be liable for the
acts or omissions to act of any Successor Capital Securities Guarantee Trustee.
(f) Upon termination of this Series B Capital Securities Guarantee or
removal or resignation of the Capital Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Capital Securities Guarantee
Trustee all amounts due to the Capital Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer), as and when due, regardless of
any defense, right of set-off or counterclaim that the Issuer may have or
assert, except the defense of payment. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders.
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SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Series B
Capital Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Capital Securities Guarantee Trustee, the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Series B Capital Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Series B Capital Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Junior Subordinated Debentures), Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Series B Capital Securities or
the extension of time for the performance of any other obligation under, arising
out of, or in connection with, the Series B Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Series B Capital
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Series B
Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor (other than payment of
the underlying obligations);
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it being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
The Guarantor expressly acknowledges that: (i) this Series B Capital
Securities Guarantee will be deposited with the Capital Securities Guarantee
Trustee to be held for the benefit of the Holders; (ii) the Capital Securities
Guarantee Trustee has the right to enforce this Series B Capital Securities
Guarantee on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Series B Capital Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Capital Securities Guarantee Trustee in respect of this Series B Capital
Securities Guarantee or exercising any trust or power conferred upon the Capital
Securities Guarantee Trustee under this Series B Capital Securities Guarantee;
and (iv) any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Series B Capital Securities
Guarantee, without first instituting a legal proceeding against the Capital
Securities Guarantee Trustee, the Issuer or any other Person.
SECTION 5.5 Guarantee of Payment
This Series B Capital Securities Guarantee will not be discharged
except by payment of the Guarantee Payments in full (without duplication of
amounts theretofore paid by the Issuer) or upon the distribution of Junior
Subordinated Debentures to Holders as provided in the Trust Agreement.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Series B Capital Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Series B Capital
Securities Guarantee; provided, however, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Series B Capital Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Series B Capital Securities Guarantee. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Series B
Capital Securities, and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee
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Payments pursuant to the terms of this Series B Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
SECTION 6.1 Ranking
This Series B Capital Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to Senior Indebtedness (as defined in the Indenture), to the
extent and in the manner that the Debentures are subordinated to Senior
Indebtedness pursuant to the Indenture, it being understood that the terms of
Article XV of the Indenture shall apply to the obligations of the Guarantor
under this Series B Capital Securities Guarantee as if such Article XV were set
forth herein in full, (ii) pari passu with the Series A Capital Securities
Guarantee, any Other Guarantee and, except to the extent set forth therein, the
Common Securities Guarantee and any Other Common Securities Guarantee, and (iii)
senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Series B Capital Securities Guarantee shall terminate and be of
no further force and effect upon (i) full payment of the Redemption Price of all
Series B Capital Securities, or (ii) dissolution, winding up or liquidation of
the Issuer, immediately following the full payment of the amounts payable in
accordance with the Trust Agreement or the distribution of all of the Debentures
to the Holders of and in exchange for all of the Capital Securities.
Notwithstanding the foregoing, this Series B Capital Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of Series B Capital Securities must restore payment of any sums
paid under the Series B Capital Securities or under this Series B Capital
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Compensation and Indemnification
(a) The Guarantor agrees to pay to the Capital Securities Guarantee
Trustee such compensation for its services as shall be mutually agreed upon by
the Guarantor and
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the Capital Securities Guarantee Trustee. The Guarantor shall from time to time
reimburse the Capital Securities Guarantee Trustee for all reasonable
out-of-pocket expenses incurred by it in connection with the performance of its
duties hereunder, including reasonable agents and attorneys' fees, except any
expense as may be attributable to the negligence, willful misconduct or bad
faith of the Capital Securities Guarantee Trustee.
(b) The Guarantor agrees to indemnify the Capital Securities Trustee
for, and to hold it harmless against, any loss, liability, or expense incurred
without negligence, willful misconduct or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Series B Capital
Securities Guarantee, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Capital Securities Guarantee Trustee
will not claim or execute any lien or charge on any Guarantee payment as a
result of any amount due to it under this Series B Capital Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Series B Capital
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Series B Capital Securities then outstanding. Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under
Article X of the Indenture and pursuant to which the assignee agrees in writing
to perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment that is not in
accordance with these provisions shall be void.
SECTION 9.2 Amendments
Except with respect to any changes that do not materially adversely affect
the rights of Holders of the Capital Securities (in which case no consent of
such Holders will be required), this Series B Capital Securities Guarantee may
only be amended with the prior approval of the Holders of a Majority in
Liquidation Amount of the Series B Capital Securities. The provisions of Section
12.2 of the Trust Agreement with respect to meetings of Holders of the Trust
Securities shall apply to the giving of such approval. This Series B Capital
Securities Guarantee may not be amended, and no amendment hereof that affects
the Capital Securities Guarantee Trustee's rights, duties or immunities
hereunder or otherwise, shall be effective, unless such amendment is executed by
the Capital Securities Guarantee Trustee (which shall have no obligation to
execute any such amendment, but may do so in its sole discretion).
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SECTION 9.3 Notices
All notices provided for in this Series B Capital Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Administration at the
Issuer's (and the Capital Securities Guarantee Trustee's) mailing address set
forth below (or such other address as the Issuer on behalf of the Issuer may
give notice of to the Holders of the Series B Capital Securities):
CNBF CAPITAL TRUST I
c/o CNB Financial Corp.
24 Church Street
Canajoharie, New York 13317
Attention: Peter J. Corso
Telecopy: (518) 673-3433
Telephone: (518) 673-3243
(b) If given to the Capital Securities Guarantee Trustee, at the
Capital Securities Guarantee Trustee's mailing address set forth below (or such
other address as the Capital Securities Guarantee Trustee may give notice of to
the Holders of the Series B Capital Securities):
WILMINGTON TRUST COMPANY
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Telecopy: (302) 651-1576
Telephone: (302) 651-1000
(c) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Capital Securities Guarantee Trustee and the Holders of the Series B Capital
Securities):
CNB FINANCIAL CORP.
24 Church Street
Canajoharie, New York 13317
Attention: Peter J. Corso
Telecopy: (518) 673-3433
Telephone: (518) 673-3243
(d) If given to any Holder of Series B Capital Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except
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that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
SECTION 9.4 Benefit
This Series B Capital Securities Guarantee is solely for the benefit
of the Holders of the Series B Capital Securities and is not separately
transferable from the Series B Capital Securities.
SECTION 9.5 Governing Law
THIS SERIES B CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 9.6 Counterparts
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees to one or more of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one, and
they shall have the same force and effect as though all of the signers had
signed a single signature page.
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This Series B Capital Securities Guarantee is executed as of the day and year
first above written.
CNB FINANCIAL CORP.
as Guarantor
By:
----------------------------
Peter J. Corso
Executive Vice President
and Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Capital Securities Guarantee Trustee
By:
----------------------------
Name:
Title:
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EXHIBIT 4.7
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REGISTRATION RIGHTS AGREEMENT
Dated as of August 6, 1999
by and among
CNB FINANCIAL CORP.,
CNBF CAPITAL TRUST I
and
RYAN, BECK & CO., INC.
as Initial Purchaser
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of August 6, 1999 by and among CNB FINANCIAL CORP., a New York
corporation (the "Company"), CNBF CAPITAL TRUST I, a business trust formed under
the laws of the state of Delaware (the "Trust"), and RYAN, BECK & CO., INC. (the
"Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated
August 4, 1999 (the "Purchase Agreement"), by and among the Company, as issuer
of the Floating Rate Junior Subordinated Deferrable Interest Debentures due
September 30, 2029, Series A (the "Subordinated Debentures"), the Trust and the
Initial Purchaser, which provides for, among other things, the sale by the Trust
to the Initial Purchaser of 18,000 of the Trust's Floating Rate Capital
Securities, Series A, liquidation amount $1,000 per Capital Security (the
"Capital Securities"), the proceeds of which will be used by the Trust, together
with the proceeds from the sale of the Trust's Common Securities to the Company,
to purchase the Subordinated Debentures. The Capital Securities, together with
the Subordinated Debentures and the Company's guarantee agreement in respect of
the Capital Securities (the "Capital Securities Guarantee"), are collectively
referred to as the "Securities." In order to induce the Initial Purchaser to
enter into the Purchase Agreement, the Company and the Trust have agreed to
provide to the Initial Purchaser and its direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Additional Distributions" shall have the meaning set forth in
Section 2(e) hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" shall have the same meaning as given to that term in
Rule 405 under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section
3(u) hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday,
or a day on which banking institutions in Wilmington, Delaware or New York, New
York are authorized or required by law or executive order to remain closed or a
day on which the principal corporate trust office of the property trustee is
closed for business.
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"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Debentures" shall collectively mean the Subordinated Debentures
and the Exchange Debentures.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Trust; provided, however, that such depositary must
have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Offer" shall mean the offer by the Company and the Trust
to the Holders to exchange all of the Registrable Securities (other than Private
Exchange Securities) for a like amount of Exchange Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Securities" shall mean (i) with respect to the
Subordinated Debentures, the Floating Rate Junior Subordinated Deferrable
Interest Debentures due September 30, 2029, Series B (the "Exchange Debentures")
containing terms substantially identical to the Subordinated Debentures (except
that they will not contain terms with respect to the transfer restrictions under
the Securities Act (other than requiring minimum transfers thereof to be in
blocks of $100,000 aggregate principal amount and multiples of $1,000 in excess
thereof) and will not provide for any Liquidated Damages thereon), (ii) with
respect to the Capital Securities, the Trust's Floating Rate Capital Securities,
Series B, liquidation amount $1,000 per Capital Security (the "Exchange Capital
Securities") containing terms substantially identical to the Capital Securities
(except they will not contain terms with respect to transfer restrictions under
the Securities Act (other than requiring minimum transfers thereof to be in
blocks of $100,000 aggregate liquidation amount and multiples of $1,000 in
excess thereof) and will not provide for any increase in Additional
Distributions thereon) and (iii) with
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respect to the Capital Securities Guarantee, the Company's guarantee agreement
in respect of the Exchange Capital Securities (the "Exchange Capital Securities
Guarantee") containing terms substantially identical to the Capital Securities
Guarantee.
"Holder" shall mean the Initial Purchaser, for so long as it owns
any Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture or Trust Agreement of Trust.
"Indenture" shall mean the Indenture relating to the Subordinated
Debentures and the Exchange Debentures, dated as of the Closing Time, between
the Company, as issuer, and Wilmington Trust Company, as trustee, as the same
may be amended from time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the
preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(o)
hereof.
"Issue Date" shall mean August 6, 1999, the date of original
issuance of the Securities.
"Liquidated Damages" shall have the meaning set forth in Section
2(e) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, limited liability corporation, or a government
or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section
2(a) hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all documents incorporated by reference
therein.
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"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable Securities" shall mean the Securities and, if issued,
the Private Exchange Securities; provided, however, that Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities or
Private Exchange Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities or
Private Exchange Securities, as the case may be, shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k), (iii) such Securities or Private
Exchange Securities, as the case may be, shall have ceased to be outstanding or
(iv) with respect to the Securities, such Securities shall have been exchanged
for Exchange Securities upon consummation of the Exchange Offer and are
thereafter freely tradeable by the holder thereof (other than an Affiliate of
the Company).
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for all
underwriters or Holders as a group in connection with blue sky qualification of
any of the Exchange Securities or Registrable Securities) and compliance with
the rules of the NASD, (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) the fees and disbursements of counsel for the Company
and of the independent certified public accountants of the Company, including
the expenses of any "cold comfort" letters required by or incident to the
performance of and compliance with this Agreement, (vi) the reasonable fees and
expenses of the Trustees and their counsel and any exchange agent or custodian,
and (vii) the reasonable fees and expenses of any special experts retained by
the Company in connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of
the Company and the Trust which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in
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each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such
shorter period as may hereafter be referred to in Rule 144(k) under the
Securities Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to
this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected pursuant
to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth
in Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Trust pursuant to the provisions of Section
2(b) hereof which covers all of the Registrable Securities or all of the Private
Exchange Securities, as the case may be, on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from
time to time.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement of CNBF Capital Trust I, dated as of the Closing Time, by the trustees
named therein and the Company as sponsor.
"Trustees" shall mean any and all trustees under the Trust
Agreement, the Indenture, the Capital Securities Guarantee or the Exchange
Capital Securities Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below,
the Company and the Trust shall, for the benefit of the Holders, at the
Company's cost, (i) cause to be filed with the SEC within 150 days after the
Issue Date an Exchange Offer
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Registration Statement on an appropriate form under the Securities Act relating
to the Exchange Offer, (ii) cause such Exchange Offer Registration Statement to
be declared effective under the Securities Act by the SEC not later than the
date which is 180 days after the Issue Date, and (iii) keep such Exchange Offer
Registration Statement effective for not less than 30 calendar days (or longer
if required by applicable law) after the date notice of the Exchange Offer is
mailed to the Holders. Promptly after the effectiveness of the Exchange Offer
Registration Statement, the Company and the Trust shall commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Registrable Securities for a like principal
amount of Exchange Debentures or a like liquidation amount of Exchange Capital
Securities, together with the Exchange Capital Securities Guarantee, as
applicable (provided that such Holder (w) is not an Affiliate of the Trust or
the Company, (x) is not a broker-dealer tendering Registrable Securities
acquired directly from the Trust or the Company, (y) acquires the Exchange
Securities in the ordinary course of such Holder's business and (z) has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities), to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws (other than requiring minimum transfers in blocks having an aggregate
principal or liquidation amount, as the case may be, of $100,000 and multiples
of $1,000 in excess thereof).
In connection with the Exchange Offer, the Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law) (such period referred to herein as the
"Exchange Period");
(iii) utilize the services of the Depositary for the Exchange Offer with
respect to Capital Securities represented by a global certificate;
(iv) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice to
Holders, a telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the amount of Securities delivered for exchange and a
statement that such Holder is withdrawing his election to have such Securities
exchanged;
(v) notify each Holder that any Security not tendered by such Holder
in the Exchange Offer will remain outstanding and continue to accrue interest or
accumulate distributions, as the case may be, but will not retain any rights
under this Agreement (except in the case of the Initial Purchaser and
Participating Broker-Dealers as provided herein); and
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(vi) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside
counsel that it is not eligible to participate in the Exchange Offer with
respect to the exchange of Securities constituting any portion of an unsold
allotment in the initial placement, as soon as practicable upon receipt by the
Company and the Trust of a written request from the Initial Purchaser, the
Company and the Trust, as applicable, shall issue and deliver to the Initial
Purchaser in exchange (the "Private Exchange") for the Securities held by the
Initial Purchaser a like liquidation amount of Exchange Capital Securities of
the Trust or, in the event the Trust is liquidated and Subordinated Debentures
are distributed, a like principal amount of the Exchange Debentures of the
Company, together with the Exchange Capital Securities Guarantee, in each case
that are identical (except that such securities may bear a customary legend with
respect to restrictions on transfer pursuant to the Securities Act) to the
Exchange Securities (the "Private Exchange Securities") and which are issued
pursuant to the Indenture or the Trust Agreement (which provides that the
Exchange Securities will not be subject to the transfer restrictions set forth
in the Indenture or the Trust Agreement, as applicable (other than requiring
minimum transfers in blocks having an aggregate principal or liquidation amount,
as the case may be, of $100,000 and multiples of $1,000 in excess thereof), and
that the Exchange Securities, the Private Exchange Securities and the Securities
will vote and consent together on all matters as one class and that none of the
Exchange Securities, the Private Exchange Securities or the Securities will have
the right to vote or consent as a separate class on any matter). The Private
Exchange Securities shall be of the same series as the Exchange Securities, and
the Company and the Trust will seek to cause the CUSIP Service Bureau to issue
the same CUSIP numbers for the Private Exchange Securities as for the Exchange
Securities issued pursuant to the Exchange Offer. The Initial Purchaser shall,
within a reasonable time in advance of the Company's filing of the Exchange
Offer Registration Statement, advise the Company as to the number of restricted
securities held by it which constitute an unsold allotment of the initial
placement.
As soon as practicable after the close of the Exchange Offer and,
if applicable, the Private Exchange, the Company and the Trust, as the case
requires, shall:
(i) accept for exchange all Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee for
cancellation all Securities or portions thereof so accepted for exchange by the
Company and the Trust; and
(iii) issue, and cause the applicable Trustee under the Indenture or the
Trust Agreement, as applicable, to promptly authenticate and deliver to each
Holder, new Exchange Securities or Private Exchange Securities, as applicable,
equal in principal amount to the principal amount of the Subordinated Debentures
or equal in liquidation amount to the liquidation amount of the Capital
Securities as are surrendered by such
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Holder, and will execute, and cause the applicable Trustee to execute, the
Exchange Capital Securities Guarantee.
Distributions on each Exchange Capital Security and interest or
distributions on each Exchange Debenture and Private Exchange Security issued
pursuant to the Exchange Offer and in the Private Exchange will accumulate or
accrue from the last date on which a distribution or interest was paid on the
Capital Security or the Subordinated Debenture surrendered in exchange therefor
or, if no distribution or interest has been paid on such Capital Security or
Subordinated Debenture, from the Issue Date. To the extent not prohibited by any
law or applicable interpretation of the staff of the SEC, the Company and the
Trust shall use commercially reasonable efforts to complete the Exchange Offer
as provided above, and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions
other than the conditions referred to in Section 2(b)(i) and (ii) below and
those conditions that are customary in similar exchange offers. Each Holder of
Registrable Securities who wishes to exchange such Registrable Securities for
Exchange Securities in the Exchange Offer will be required to make certain
customary representations in connection therewith, including, in the case of any
Holder of Capital Securities, representations that (i) it is not an Affiliate of
the Trust or the Company, (ii) it is not a broker-dealer tendering Registrable
Securities acquired directly from the Trust or Company, (iii) the Exchange
Securities to be received by it were acquired in the ordinary course of its
business and (iv) at the time of the Exchange Offer, it has no arrangements or
understandings with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Capital Securities. The Company
and the Trust shall inform the Initial Purchaser, after consultation with the
applicable Trustees, of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchaser shall have the right to
contact such Holders in order to facilitate the tender of Registrable Securities
in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company and the Trust shall have no further obligation
to register the Registrable Securities (other than Private Exchange Securities)
held by any Holder pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Company or
the Trust reasonably determine, after conferring with counsel (which may be
in-house counsel), that the Exchange Offer Registration provided in Section 2(a)
above is not available under applicable law and regulations and currently
prevailing interpretations of the staff of the SEC, (ii) the Company shall
determine in good faith that there is a reasonable likelihood that, or a
material uncertainty exists as to whether, consummation of the Exchange Offer
would result in (x) the Trust becoming subject to federal income tax with
respect to income received or accrued on the Debentures, (y) the interest
payable by the Company on the Debentures not being deductible by the Company for
United States
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federal income tax purposes or (z) the Trust becoming subject to more than a de
minimis amount of other taxes, duties or governmental charges, (iii) the
Exchange Offer Registration Statement is not declared effective within 180 days
of the Issue Date or (iv) upon the request of the Initial Purchaser on or before
the next Business Day following the consummation of the Exchange Offer with
respect to any Registrable Securities held by it, if the Initial Purchaser is
not permitted, in the reasonable opinion of Thacher Proffitt & Wood, pursuant to
applicable law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are freely
tradeble without restriction under the Securities Act and applicable blue sky or
state securities laws (any of the events specified in (i), (ii), (iii) or (iv)
being a "Shelf Registration Event," and the date of occurrence thereof, the
"Shelf Registration Event Date"), then in addition to or in lieu of conducting
the Exchange Offer contemplated by Section 2(a), as the case may be, the Company
and the Trust shall, at their cost, cause to be filed as promptly as practicable
after such Shelf Registration Event Date, as the case may be, and, in any event,
within 45 days after such Shelf Registration Event Date (provided that in no
event shall such filing date be required to be earlier than 75 days after the
Issue Date), a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities, and shall use commercially
reasonable efforts to have such Shelf Registration Statement declared effective
by the SEC as soon as practicable. No Holder of Registrable Securities shall be
entitled to include any of its Registrable Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder and
furnishes to the Company and the Trust in writing, within 15 days after receipt
of a request therefor, such information as the Company and the Trust may, after
conferring with counsel with regard to information relating to Holders that
would be required by the SEC to be included in such Shelf Registration Statement
or Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company and
the Trust all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company and the Trust agree to use reasonable best efforts to
keep the Shelf Registration Statement continuously effective and usable for
resales for (a) the Rule 144(k) Period in the case of a Shelf Registration
Statement filed pursuant to Section 2(b)(i), (ii) or (iii) or (b) 180 days in
the case of a Shelf Registration Statement filed pursuant to Section 2(b)(iv)
(subject in each case to extension pursuant to the last paragraph of Section 3
hereof), or for such shorter period which will terminate when all of the
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be Registrable Securities (the
"Effectiveness Period"). The Company and the Trust shall not permit any
securities other than Registrable Securities to be included in the Shelf
Registration. The Company and the Trust will, in the event a Shelf Registration
Statement is declared effective, provide to each Holder a reasonable number of
copies of the Prospectus which is a part of the Shelf Registration Statement,
notify each such Holder when the Shelf Registration has become effective and use
their reasonable best efforts to take certain other actions as are required to
permit certain unrestricted resales of the Registrable Securities. The Company
and the
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Trust further agree, if necessary, to supplement or amend the Shelf Registration
Statement, if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement
or by the Securities Act or by any other rules and regulations thereunder for
shelf registrations, and the Company and the Trust agree to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses. The Company, as issuer of the Subordinated
Debentures, shall pay all Registration Expenses in connection with any
Registration Statement filed pursuant to Section 2(a) and/or 2(b) hereof and
will reimburse the Initial Purchaser for the reasonable fees and disbursements
of Thacher Proffitt & Wood, counsel for the Initial Purchaser, incurred in
connection with the Exchange Offer and, if applicable, the Private Exchange, and
either Thacher Proffitt & Wood or any other single counsel designated in writing
by the Majority Holders to act as counsel for the Holders of the Registrable
Securities in connection with a Shelf Registration Statement, which other
counsel shall be reasonably satisfactory to the Company. Except as provided
herein, each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Registrable
Securities pursuant to such Exchange Offer Registration Statement or Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Exchange Offer Registration Statement or Shelf Registration Statement will be
deemed not to have been effective during the period of such interference, until
the offering of Registrable Securities pursuant to such Registration Statement
may legally resume. The Company and the Trust will be deemed not to have used
commercially reasonable efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if either of them voluntarily
takes any action that would result in any such Registration Statement not being
declared effective or that would result in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell such Registrable
Securities during that period, unless such action is required by applicable law.
(e) Liquidated Damages and Additional Distributions. In the
event that:
(i) neither the Exchange Offer Registration Statement is filed with
the SEC on or prior to the 150th day after the Issue Date nor a Shelf
Registration Statement is filed with the SEC on or prior to the 45th day after
the Shelf Registration Event Date in respect of a Shelf Registration Event
attributable to any of the events set forth in Sections
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2(b)(i), (ii) and (iii) (provided that in no event shall such filing date be
required to be earlier than 75 days after the Issue Date), then commencing on
the day after the applicable required filing date, liquidated damages
("Liquidated Damages") shall accrue on the principal amount of the Subordinated
Debentures, and additional distributions ("Additional Distributions") shall
accumulate on the liquidation amount of the Trust Securities (as such term is
defined in the Trust Agreement), each at a rate of 25 basis points per annum; or
(ii) neither the Exchange Offer Registration Statement is declared
effective by the SEC on or prior to the 180th day after the Issue Date nor a
Shelf Registration Statement is declared effective by the SEC on or prior to the
later of (A) the 40th day after the date such Shelf Registration Statement was
required to be filed and (B) the 180th day after the Issue Date, in respect of a
Shelf Registration Event attributable to any of the events set forth in Sections
2(b)(i), (ii) and (iii), then, commencing on the day after the applicable
required effectiveness date, Liquidated Damages shall accrue on the principal
amount of the Subordinated Debentures, and Additional Distributions shall
accumulate on the liquidation amount of the Trust Securities, each at a rate of
25 basis points per annum; or
(iii) (A) the Trust has not exchanged Exchange Capital Securities for
all Capital Securities or the Company has not exchanged Exchange Debentures for
all Subordinated Debentures, in each case validly tendered, or executed the
Exchange Capital Securities Guarantee in respect of the Exchange Capital
Securities, in accordance with the terms of the Exchange Offer on or prior to
the 45th day after the date on which the Exchange Offer Registration Statement
was declared effective or (B) if applicable, the Shelf Registration Statement in
respect of a Shelf Registration Event attributable to any of the events set
forth in Sections 2(b)(i), (ii) and (iii) has been declared effective and such
Shelf Registration Statement ceases to be effective or usable for resales
(whether as a result of an event contemplated by Section 3(e) or otherwise) at
any time prior to the expiration of the Rule 144(k) Period (other than after
such time as all Securities have been disposed of thereunder or otherwise cease
to be Registered Securities), then Liquidated Damages shall accrue on the
principal amount of Subordinated Debentures, and Additional Distributions shall
accumulate on the liquidation amount of the Trust Securities, each at a rate of
25 basis points per annum commencing on (x) the 46th day after such effective
date, in the case of (A) above, or (y) the day such Shelf Registration Statement
ceases to be effective or usable for resales, in the case of (B) above;
provided, however, that neither the Liquidated Damages rate on the Subordinated
Debentures, nor the Additional Distribution rate on the liquidation amount of
the Trust Securities, may exceed in the aggregate 25 basis points per annum;
provided, further, however, that (1) upon the filing of the Exchange Offer
Registration Statement or a Shelf Registration Statement (in the case of clause
(i) above), (2) upon the effectiveness of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of clause (ii) above)
or (3) upon the exchange of Exchange Capital Securities and Exchange Debentures
for all Capital Securities and Subordinated Debentures validly tendered and
execution of the Exchange Capital Securities Guarantee (in the case of clause
(iii)(A) above) or at such time as the Shelf Registration Statement that had
ceased to remain
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<PAGE> 13
effective or usable for resales again becomes effective and usable for resales
(in the case of clause (iii)(B) above), Liquidated Damages on the principal
amount of the Subordinated Debentures and Additional Distributions on the
liquidation amount of the Trust Securities as a result of such clause (or the
relevant subclause thereof) shall cease to accrue and accumulate, as the case
may be.
Any amounts of Liquidated Damages and Additional Distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above will be payable in cash on the
next succeeding March 31, June 30, September 30 or December 31, as the case may
be, to Holders on the relevant record dates for the payment of interest and
distributions pursuant to the Indenture and the Trust Agreement, respectively.
(f) Specific Enforcement. Without limiting the remedies
available to the Holders, the Company and the Trust acknowledge that any failure
by the Company or the Trust to comply with its obligations under Section 2(a)
and Section 2(b) hereof may result in material irreparable injury to the Holders
for which there is no adequate remedy at law, that it would not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, any Holder may obtain such relief as may be required to specifically
enforce the Company's and the Trust's obligations under Section 2(a) and Section
2(b) hereof.
(g) Distribution of Subordinated Debentures. Notwithstanding
any other provisions of this Agreement, in the event that Subordinated
Debentures are distributed to holders of Capital Securities in liquidation of
the Trust pursuant to the Trust Agreement, (i) all references in this Section 2
and in Section 3 to Securities, Registrable Securities and Exchange Securities
shall not include the Capital Securities and Capital Securities Guarantee or the
Exchange Capital Securities and Exchange Capital Securities Guarantee issued or
to be issued in exchange therefor in the Exchange Offer and (ii) all
requirements for any action to be taken by the Trust in this Section 2 and in
Section 3 shall cease to apply and all requirements for any action to be taken
by the Company in this Section 2 and in Section 3 shall apply to the
Subordinated Debentures and Exchange Debentures issued or to be issued in
exchange therefor in the Exchange Offer.
3. Registration Procedures. In connection with the obligations
of the Company and the Trust with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company and the Trust shall use
their reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time period specified in Section 2 hereof on the appropriate form
under the Securities Act, which form (i) shall be selected by the Company and
the Trust, (ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Securities by the selling Holders thereof and, in the
case of an Exchange Offer, be available for the exchange of Registrable
Securities and (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use reasonable efforts to cause
such Registration Statement to become effective and remain effective (and, in
the case of a
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<PAGE> 14
Shelf Registration Statement, usable for resales) in accordance with Section 2
hereof; provided, however, that if (1) such filing is pursuant to Section 2(b),
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities, before
filing any Registration Statement or Prospectus or any amendments or supplements
thereto, the Company and the Trust shall furnish to and afford the Holders of
the Registrable Securities and each such Participating Broker-Dealer, as the
case may be, covered by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed. The Company
and the Trust shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such document if the
Majority Holders or such Participating Broker-Dealer, as the case may be, their
counsel or the managing underwriters, if any, shall reasonably object in a
timely manner;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be; and cause each Prospectus to be
supplemented, if so determined by the Company or the Trust or requested by the
SEC, by any required prospectus supplement and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act, and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder applicable to
it with respect to the disposition of all securities covered by each
Registration Statement during the Effectiveness Period or the Applicable Period,
as the case may be, in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable Securities included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advising such Holder
that the distribution of Registrable Securities will be made in accordance with
the method selected by the Majority Holders; and (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto, and such other documents as
such Holder or underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities; and (iii)
consent to the use of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
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<PAGE> 15
(d) in the case of a Shelf Registration, register or qualify
the Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions by the time the applicable Registration Statement is
declared effective by the SEC as any Holder of Registrable Securities covered by
a Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of such
date of effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company and the
Trust shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general consent to
service of process in any jurisdiction where it would not otherwise be subject
to such service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration or if Participating
Broker-Dealers from whom the Company or the Trust has received prior written
notice that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(u) hereof, are seeking to
sell Exchange Securities and are required to deliver Prospectuses, promptly
notify each Holder of Registrable Securities, or such Participating
Broker-Dealers, as the case may be, their counsel and the managing underwriters,
if any, and promptly confirm such notice in writing (i) when a Registration
Statement has become effective and when any post-effective amendments thereto
become effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the qualification of the Registrable Securities or the Exchange
Securities to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in paragraph 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company and the Trust contained in any purchase agreement,
securities sales agreement or other similar agreement cease to be true and
correct in all material respects, (v) of the happening of any event or the
failure of any event to occur or the discovery of any facts, during the
Effectiveness Period, which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
causes such Registration Statement or Prospectus to omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) of the
reasonable determination of the Company and the Trust that a post-effective
amendment to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment;
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<PAGE> 16
(g) in the case of a Shelf Registration, furnish to each Holder
of Registrable Securities included within the coverage of such Shelf
Registration Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends (other than with respect to restrictions
requiring minimum transfers in blocks having an aggregate principal or
liquidation amount, as the case may be, of $100,000 and multiples of $1,000 in
excess thereof) and in such denominations (consistent with the provisions of the
Indenture and the Trust Agreement) and registered in such names as the selling
Holders or the underwriters may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Securities pursuant to such
Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to such Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not include any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time
prior to the filing of any document which is to be incorporated by reference
into a Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders; and make such of the representatives of the Company and the
Trust as shall be reasonably requested by the Holders of Registrable Securities
or the Initial Purchaser on behalf of such Holders available for discussion of
such document;
(k) obtain a CUSIP number for all Exchange Capital Securities
and the Capital Securities (and, if the Trust has made a distribution of the
Subordinated Debentures to the Holders of the Capital Securities, the
Subordinated Debentures or the Exchange Debentures), as the case may be, not
later than the effective date of a Registration Statement, and provide the
applicable Trustee with certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible for deposit with
the Depositary;
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<PAGE> 17
(l) cause the Indenture, the Trust Agreement, the Capital
Securities Guarantee (in the case of a Shelf Registration) and the Exchange
Capital Securities Guarantee (in the case of an Exchange Offer Registration) to
be qualified under the TIA, in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and cause the applicable
Trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to enable such
documents to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions in connection therewith as
are reasonably requested by the Holders of at least 25% in aggregate principal
or liquidation amount, as the case may be, of the Registrable Securities in
order to expedite or facilitate the registration or the disposition or the
Registrable Securities; provided that the Company shall not be required to enter
into more than three such agreements, with respect to Registrable Securities,
and shall not be required to enter into any such agreement for 90 days following
consummation of any underwritten public offering which the Company shall have
undertaken;
(n) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) the Initial Purchaser, in the
case where the Initial Purchaser holds Securities acquired by it as part of its
initial placement and (y) Holders of at least 25% in aggregate principal or
liquidation amount, as the case may be, of the Registrable Securities covered
thereby: (i) make such representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with respect to the
business of the Trust, the Company and the subsidiaries of the Company as then
conducted and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Company and the Trust and updates thereof (which may be in the form of a
reliance letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in aggregate principal or
liquidation amount, as the case may be, of the Registrable Securities being
sold, addressed to each selling Holder and the underwriters (if any) covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such underwriters (it
being agreed that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions); (iii) obtain "cold comfort" letters
and updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants of the
Company and the Trust (and, if necessary, any other independent certified public
accountants of any business acquired by the Company and the Trust for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters, such letters
to be in customary form and covering matters of the type
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<PAGE> 18
customarily covered in "cold comfort" letters in connection with underwritten
offerings and such other matters as reasonably requested by such underwriters in
accordance with Statement on Auditing Standards No. 72; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 4
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal or liquidation amount, as the case may be, of
Registrable Securities covered by such Registration Statement and the managing
underwriters) customary for such agreements with respect to all parties to be
indemnified pursuant to said Section (including, without limitation, such
underwriters and selling Holders); and in the case of an underwritten
registration, the above requirements shall be satisfied at each closing under
the related underwriting agreement or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section
2(b) or (2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, make reasonably available for inspection by any
selling Holder of Registrable Securities or Participating Broker-Dealer, as
applicable, who certifies to the Company and the Trust that it has a current
intention to sell Registrable Securities pursuant to the Shelf Registration, any
underwriter participating in any such disposition of Registrable Securities, if
any, and any attorney, accountant or other agent retained by any such selling
Holder, Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during the
Company's normal business hours, all financial and other records, pertinent
corporate documents and properties of the Trust, the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Trust, the Company and its
subsidiaries to supply all relevant information in each case reasonably
requested by any such Inspector in connection with such Registration Statement;
records and information which the Company and the Trust determine, in good
faith, to be confidential and any Records and information which it notifies the
Inspectors are confidential shall not be disclosed to any Inspector except where
(i) the disclosure of such Records or information is necessary to avoid or
correct a material misstatement or omission in such Registration Statement, (ii)
the release of such Records or information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or is necessary in connection
with any action, suit or proceeding or (iii) such Records or information
previously has been made generally available to the public; each selling Holder
of such Registrable Securities and each such Participating Broker-Dealer will be
required to agree in writing that Records and information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the Trust or
the Company unless and until such is made generally available to the public
through no fault of an Inspector or a selling Holder; and each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning that disclosure
of such Records or information is sought in a court of competent jurisdiction,
or in connection with any action, suit or proceeding, give notice to the
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<PAGE> 19
Company and allow the Company at its expense to undertake appropriate action to
prevent disclosure of the Records and information deemed confidential;
(p) comply with all applicable rules and regulations of the SEC
so long as any provision of this Agreement shall be applicable and make
generally available to its security-holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods, provided that the
obligations under this paragraph (p) shall be satisfied by the timely filing of
quarterly and annual reports on Forms 10-Q and 10-K under the Exchange Act;
(q) upon consummation of an Exchange Offer or a Private
Exchange, if requested by a Trustee, obtain an opinion of counsel to the Company
addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or the Private Exchange, as the
case may be, substantially to the effect that (i) each of the Company and the
Trust, as the case requires, has duly authorized, executed and delivered the
Exchange Securities and Private Exchange Securities, and (ii) each of the
Exchange Securities or the Private Exchange Securities, as the case may be,
constitutes a validly issued, fully paid and nonassessable undivided beneficial
ownership interest in the assets of the Trust (in the case of an Exchange
Capital Security) or a legal, valid and binding obligation of the Company,
enforceable against the Company, in accordance with its respective terms (in the
case of an Exchange Debenture and the Exchange Capital Securities Guarantee), as
the case may be (in each case, with customary exceptions);
(r) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to the
Company or the Trust, as applicable (or to such other Person as directed by the
Company or the Trust, respectively), in exchange for the Exchange Securities or
the Private Exchange Securities, as the case may be, the Company or the Trust,
as applicable, shall mark, or cause to be marked, on such Registrable Securities
delivered by such Holders that such Registrable Securities are being cancelled
in exchange for the Exchange Securities or the Private Exchange Securities, as
the case may be; it being understood that in no event shall such Registrable
Securities be marked as paid or otherwise satisfied;
(s) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD;
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<PAGE> 20
(t) take all other steps necessary to effect the registration
of the Registrable Securities covered by a Registration Statement contemplated
hereby;
(u) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," which section shall be reasonably acceptable to
the Initial Purchaser or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that holds Registrable Securities
acquired for its own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer") and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the Exchange Offer, whether
such positions or policies have been publicly disseminated by the staff of the
SEC or such positions or policies, in the reasonable judgment of the Initial
Purchaser or such other representative, represent the prevailing views of the
staff of the SEC, including a statement that any such broker-dealer who receives
Exchange Securities for Registrable Securities pursuant to the Exchange Offer
may be deemed a statutory underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), without charge,
as many copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary Prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably request (each of the
Company and the Trust hereby consents to the use of the Prospectus forming part
of the Exchange Offer Registration Statement or any amendment or supplement
thereto by any Person subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto), (iii) use their best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply with such
requirements under the Securities Act and applicable rules and regulations in
order to resell the Exchange Securities; provided, however, that such period
shall not be required to exceed 90 days (or such longer period if extended
pursuant to the last sentence of Section 3 hereof) (the "Applicable Period"),
and (iv) include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Exchange Offer
(x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with
any resale of Exchange Securities received in respect of
such Registrable Securities pursuant to the Exchange
Offer";
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<PAGE> 21
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
Securities Act; and (B) in the case of any Exchange Offer Registration
Statement, the Company and the Trust agree to deliver to the Initial Purchaser
or to another representative of the Participating Broker-Dealers, if requested
by the Initial Purchaser or such other representative of Participating
Broker-Dealers, on behalf of the Participating Broker-Dealers upon consummation
of the Exchange Offer (i) an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchaser or such other representative of the
Participating Broker-Dealers, covering the matters customarily covered in
opinions requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary qualifications
and exceptions), (ii) an officers' certificate containing certifications
substantially similar to those set forth in Section 5(g) of the Purchase
Agreement and such additional certifications as are customarily delivered in a
public offering of debt securities and (iii) as well as upon the effectiveness
of the Exchange Offer Registration Statement, a comfort letter, in each case, in
customary form if permitted by Statement on Auditing Standards No. 72.
The Company or the Trust may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company or the Trust, as applicable, such information regarding such seller as
may be required by the staff of the SEC to be included in a Registration
Statement. The Company or the Trust may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall have no obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company and the Trust that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in this Section 3(u) hereof, are seeking to sell Exchange Securities
and are required to deliver Prospectuses, each Holder agrees that, upon receipt
of any notice from the Company or the Trust of the occurrence of any event
specified in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company and the Trust that the
use of the applicable Prospectus may be resumed, and, if so directed by the
Company and the Trust, such Holder will deliver to the Company or the Trust (at
the Company's or the Trust's expense, as the case requires) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities or Exchange
Securities, as the case may be, current at the time of receipt of such notice.
If the Company or the Trust shall give any such notice to suspend the
disposition of Registrable Securities or Exchange Securities, as the case may
be, pursuant to a Registration Statement, the Company and the Trust shall use
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<PAGE> 22
commercially reasonable efforts to file and have declared effective (if an
amendment) as soon as practicable after the resolution of the related matters an
amendment or supplement to the Registration Statement and shall extend the
period during which such Registration Statement is required to be maintained
effective and usable for resales pursuant to this Agreement by the number of
days in the period from and including the date of the giving of such notice to
and including the date when the Company and the Trust shall have made available
to the Holders (x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. In connection with any
Registration Statement, the Company and the Trust shall, jointly and severally,
indemnify and hold harmless the Initial Purchaser, each Holder, each underwriter
who participates in an offering of the Registrable Securities, each
Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective partners, directors, officers,
employees and agents as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment or supplement thereto), covering Registrable Securities or Exchange
Securities, as applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(e) hereof) any such
settlement is effected with the prior written consent of the Company and the
Trust; and
(iii) against any and all expenses whatsoever, as incurred (including
the fees and disbursements of counsel (except to the extent otherwise expressly
provided in Section 4(c) hereof)), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished in writing to the Company or the
Trust by the Initial Purchaser or such Holder, underwriter or Participating
Broker-Dealer for use in a Registration
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<PAGE> 23
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto); and
further provided that this indemnity does not apply to any such Holder,
Participating Broker-Dealer, any underwriter or controlling person, with respect
to any untrue statement or omission or alleged omission in any preliminary
Prospectus to the extent that any such loss, liability, claim, damage or expense
of any Holder, Participating Broker-Dealer, any underwriter or controlling
person results from the fact that such Holder, any underwriter or Participating
Broker-Dealer sold Registrable Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
final Prospectus as then amended or supplemented if the Company had previously
furnished copies thereof to such Holder, underwriter or Participating
Broker-Dealer and the loss, liability, claim, damage or expense of such Holder,
underwriter, Participating Broker-Dealer, or controlling person results from an
untrue statement or omission of a material fact contained in the preliminary
Prospectus which was corrected in the final Prospectus. Any amounts advanced by
the Company or the Trust to an indemnified party pursuant to this Section 4 as a
result of such losses shall be returned to the Company or the Trust if it shall
be finally determined by such a court in a judgement not subject to appeal or
final review that such indemnified party was not entitled to indemnification by
the Company or the Trust.
(a) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever that may become due from the
Trust under Section 4(a).
(b) The Initial Purchaser and each Holder, underwriter or
Participating Broker-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and officers (including each officer of
the Company and the Trust who signed the Registration Statement), the Trust,
each of the Trustees and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense whatsoever
described in the indemnity contained in Section 4(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company or the
Trust by such Holder expressly for use in such Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or supplement
thereto); provided, however, that in the case of a Shelf Registration Statement,
no such Holder shall be liable for any claims hereunder in excess of the amount
of net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have under this
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<PAGE> 24
Section 4 to the extent that it is not materially prejudiced by such failure as
a result thereof, and in any event shall not relieve it from liability which it
may have otherwise on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 4(a), (b) or (c) above, counsel to the
indemnified parties shall be selected by such parties. An indemnifying party may
participate at its own expense in the defense of such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to local counsel), separate from their own counsel, for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional written release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement, provided,
however, that an indemnifying party shall not be liable for any such settlement
effected without its consent if such indemnifying party (1) reimburses such
indemnified party in accordance with such request to the extent it determines in
good faith such fees and expenses of counsel to be reasonable and (2) provides
written notice within ten (10) days after receipt of the request for
reimbursement to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, the Company, the Trust and the
Holders shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
the Company, the Trust and the Holders, as incurred; provided, however, that no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. As between the
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<PAGE> 25
Company, the Trust, and the Holders, such parties shall contribute to such
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect the relative fault of the Company and Trust, on the one
hand, and the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or expense, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company and the Trust, on the one
hand, and of the Holders, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Trust, on the one hand, or
by or on behalf of the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Trust and the Holders of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 4, each Affiliate of a
Holder, and each partner, director, officer and Person, if any, who controls a
Holder or such Affiliate within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Holder, and each director of the Company, each Trustee of the Trust and
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as each of the Company or the Trust.
5. Participation in an Underwritten Registration. No Holder
may participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so may
sell the Securities covered by such Shelf Registration in an underwritten
offering, subject to the provisions of Section 3(m) hereof. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal or liquidation amount, as applicable, of the Registrable
Securities included in such offering; provided, however, that such underwriters
and managers must be reasonably satisfactory to the Company and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the Exchange Act
and any Registrable Securities remain outstanding, the Company will file the
reports required to be filed by it
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<PAGE> 26
under the Securities Act and Section 13(a) or 15(d) of the Exchange Act and the
rules and regulations adopted by the SEC thereunder; provided, however, that if
the Company ceases to be so required to file such reports, it will, upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales of its securities pursuant to Rule
144 under the Securities Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales of its securities pursuant to Rule
144A under the Securities Act and (c) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. Neither the Company nor the
Trust has entered into, nor will the Company or the Trust on or after the date
of this Agreement enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's or the Trust's other issued
and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company and the Trust have obtained the written
consent of Holders of at least a majority in aggregate principal or liquidation
amount of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure; provided that no amendment,
modification or supplement or waiver or consent to the departure with respect to
the provisions of Section 4 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder of
Registrable Securities. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Securities, by written agreement signed by the Company, the Trust and the
Initial Purchaser, to cure any ambiguity, correct or supplement any provision of
this Agreement that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with other
provisions of this Agreement, (ii) this Agreement may be amended, modified or
supplemented, and waivers and consents to departures from the provisions hereof
may be given, by written agreement signed by the Company, the Trust and the
Initial Purchaser to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary or
appropriate to comply with applicable law (including any interpretation of the
Staff of the SEC) or any change therein and (iii) to the extent any provision of
this Agreement relates to the Initial Purchaser, such provision may be amended,
modified or supplemented, and
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<PAGE> 27
waivers or consents to departures from such provisions may be given, by written
agreement signed by the Initial Purchaser, the Company and the Trust. Each
Holder of Registrable Securities shall be bound by any amendment or waiver
effected pursuant to this Section 7(c), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such security or is
delivered to such Holder.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company or the Trust by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect to the
Initial Purchaser, the address set forth in the Purchase Agreement; and (ii) if
to the Company or the Trust, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement, the
Trust Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any
Participating Broker-Dealer shall be third party beneficiaries of the agreements
made hereunder among the Initial Purchaser, the Company and the Trust, and the
Initial Purchaser shall have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so
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<PAGE> 28
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY
DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH COURT. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company, the Trust or its
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company, the Trust or any Affiliates shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(l) Effective Date. This Agreement shall be of no force and
effect and the parties shall have no obligations or rights hereunder until the
Closing Time whereupon this Agreement shall be effective.
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<PAGE> 29
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
CNB FINANCIAL CORP.
By: /s/ PETER J. CORSO
-------------------------------------------
Peter J. Corso
Executive Vice President and
Chief Financial Officer
CNBF CAPITAL TRUST I
By: CNB FINANCIAL CORP.
as Sponsor
By: /s/ PETER J. CORSO
-------------------------------------------
Peter J. Corso
Executive Vice President and
Chief Financial Officer
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By: /s/ BRUCE G. MILLER
-------------------------------
Bruce G. Miller
Senior Vice President
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<PAGE> 1
EXHIBIT 5.1
[Letterhead of Arnold & Porter]
November 10, 1999
Board of Directors
CNB Financial Corp.
24 Church Street
Canajoharie, New York 13317
Re: CNBF Capital Trust I
Ladies and Gentlemen:
This opinion is issued in connection with the Registration Statement on
Form S-4 (the "Registration Statement") of CNB Financial Corp., a New York
corporation (the "Corporation"), and CNBF Capital Trust I, a Delaware business
trust (the "Trust"), filed with the Securities and Exchange Commission (the
"Commission"), relating to (i) $18,000,000 aggregate liquidation amount of
capital securities representing beneficial ownership interests in the Trust (the
"Capital Securities"), (ii) $18,000,000 aggregate principal amount of junior
subordinated deferrable interest debentures to be issued by the Corporation (the
"Junior Subordinated Debentures"), and (iii) guarantees by the Corporation of
certain obligations of the Trust related to the Capital Securities (the
"Guarantee").
We have examined (i) the form of the Junior Subordinated Indenture (the
"Indenture") entered into by the Corporation and Wilmington Trust Company, as
Debenture Trustee, filed as an Exhibit to the Registration Statement; (ii) the
form of the Guarantee Agreement (the "Guarantee Agreement") to be entered into
by the Corporation and Wilmington Trust Company, as Guarantee Trustee, filed as
an Exhibit to the Registration Statement; and (iii) such records, certificates
and other documents that we have considered necessary or appropriate for the
purposes of this opinion.
In making such examination and rendering the opinions set forth below, we
have assumed: (i) the genuineness and authenticity of all signatures on all
documents; (ii) the authority of the parties (other than the Corporation)
executing such documents; (iii) the authenticity of all documents submitted to
us as originals; and (iv) the conformity to originals of all documents submitted
to us as certified, telecopied, photostated or reproduced copies and the
authenticity of all originals of such documents.
We have also assumed that (i) the Registration Statement, and any
applicable amendments thereto (including post-effective amendments), will have
become effective under the Securities Act of 1933, as amended (the "Act"), at
the time of issuance, offering and sale of any such Capital Securities, Junior
Subordinated Debentures or Guarantees and (ii) the Guarantee Agreement will be
executed and delivered in substantially the form filed as an Exhibit to the
Registration Statement.
<PAGE> 2
Board of Directors
CNB Financial Corp.
November 10, 1999
Page 2
We are admitted to practice law in the State of New York and do not
purport to be an expert on or to express any opinion on any laws other than the
laws of the State of New York and the federal securities laws of the United
States of America. This opinion speaks as of today's date and is limited to
present statutes, regulations and judicial interpretations. In rendering this
opinion, we assume no obligation to revise or supplement this opinion should the
present laws be changed by legislative or regulatory action, judicial decision
or otherwise or should the agreements or other documents (or forms thereof) that
we have examined in connection with this opinion hereafter be changed.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. With respect to the Junior Subordinated Debentures to be issued under
the Indenture, when such Junior Subordinated Debentures have been duly executed,
authenticated, issued and delivered in accordance with the provisions of the
Indenture and upon payment of the consideration therefor as contemplated by the
Registration Statement, such Junior Subordinated Debentures will constitute
valid and legally binding obligations of the Corporation, enforceable against
the Corporation in accordance with their terms.
2. With respect to the Guarantee to be issued pursuant to the Guarantee
Agreement, when the Guarantee Agreement has been duly executed and delivered by
the Corporation and by the Guarantee Trustee, the Guarantee will constitute a
valid and legally binding obligation of the Corporation, enforceable against the
Corporation in accordance with its terms.
Our opinions set forth in paragraphs 1 and 2 above are qualified to the
extent that the characterization of, and the enforceability of any rights or
remedies in, any agreement or instrument may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization,
receivership, readjustment of debt, moratorium, equitable subordination and
other similar laws and doctrines relating to or affecting creditors' rights
generally, or the rights of creditors of depository institution holding
companies, by supervisory and enforcement powers of bank regulatory authorities,
and general equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Validity of
the Exchange Securities" in the Prospectus included in Part I of the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons
<PAGE> 3
Board of Directors
CNB Financial Corp.
November 10, 1999
Page 3
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Arnold &Porter
<PAGE> 1
EXHIBIT 5.2
[Richards, Layton & Finger, PA Letterhead]
November 12, 1999
CNBF Capital Trust I
CNB Financial Corp.
24 Church Street
Canajoharie, New York 13317
Re: CNBF Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for CNBF Capital Trust I,
a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
1. The Certificate of Trust of the Trust (the "Certificate"), as
filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on June 14, 1999;
2. The Trust Agreement, dated as of June 14, 1999, among CNB
Financial Corp., a New York corporation (the "Company"), and
the trustees named therein;
3. The Amended and Restated Trust Agreement of Trust, dated as of
August 6, 1999 (as amended and restated, the "Trust
Agreement"), among the Company, as Sponsor, the trustees named
therein (the "Trustees") and the holders from time to time of
undivided beneficial interests in the Trust;
4. The Registration Statement (the "Registration Statement") on
Form S-4, including a preliminary prospectus (the
"Prospectus") relating to the Series B Floating Rate Capital
Securities of the Trust
<PAGE> 2
CNBF Capital Trust I
CNB Financial Corp.
November 12, 1999
Page 2
representing undivided beneficial interests in the Trust
(each, a "Series B Capital Security" and collectively, the
"Series B Capital Securities"), as filed by the Company and
the Trust with the Securities and Exchange Commission on
November 12, 1999; and
5. A Certificate of Good Standing for the Trust, dated August 5,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Series B Capital Security is to be issued by the Trust (collectively, the
"Series B Capital Security Holders") of a Series B Capital Security Certificate
for such Series B Capital Security in exchange for a Series A Capital Security,
in accordance with the Trust Agreement and the Prospectus, and (vii) that the
Series B Capital Securities will be executed, authenticated and issued to the
Series B Capital Security Holders in accordance with the Trust Agreement and the
Prospectus. We have
<PAGE> 3
CNBF Capital Trust I
CNB Financial Corp.
November 12, 1999
Page 3
not participated in the preparation of the Registration Statement or the
Prospectus and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801, et seq.
2. The Series B Capital Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Series B Capital Security Holders, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Series B
Capital Security Holders may be obligated to make payments as set forth in the
Trust Agreement.
<PAGE> 4
CNBF Capital Trust I
CNB Financial Corp.
November 12, 1999
Page 4
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of Exchange
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE> 1
EXHIBIT 8
November 11, 1999
CNB Financial Corp.
24 Church Street
Canajoharie, NY 13317
Re: CNBF Capital Trust I -- $18,000,000 of
Series B Floating Rate Capital Securities
Ladies and Gentlemen:
We have acted as special tax counsel to CNB Financial Corp. in connection
with the preparation and filing with the Securities and Exchange Commission of a
Form S-4 Registration Statement relating to the offer (the "Exchange Offer") to
exchange all outstanding Series A Floating Rate Capital Securities for new
Series B Floating Rate Capital Securities (the "New Securities") registered
under the Securities Act of 1933, as amended.
This opinion letter relates to the principal material federal income tax
consequences of the Exchange Offer and the ownership and disposition of the New
Securities. All capitalized terms used in this opinion letter and not otherwise
defined herein are used as defined in the Registration Statement.
The opinion set forth herein is subject to the assumptions and conditions
set forth in the Registration Statement under the heading "United States Federal
Income Taxation" and is premised on the assumption that all of the factual
information, descriptions, representations and assumptions set forth or referred
to in this letter and in the Registration Statement are accurate and complete.
We have not independently verified any factual matters relating to the New
Securities in connection with or apart from our preparation of this opinion and,
accordingly, our opinion does not take into account any matters not set forth
herein which might have been disclosed by independent verification. We have
examined the Registration Statement and such other documents as we have deemed
necessary to render our opinion expressed below. In our examination of such
material, we have relied upon the current and continued accuracy of the factual
matters we have considered, and we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all copies of documents submitted to us.
Should any of the facts, circumstances, or assumptions on which we have relied
subsequently be determined to be incorrect or inaccurate, our conclusions may
vary from those set forth below and such variance could be material.
<PAGE> 2
CNB Financial Corp.
November 11, 1999
Page 2
Based on the foregoing, and subject to the further assumptions and
conditions set forth in the Registration Statement and set forth herein, it is
our opinion that the statements in the Registration Statement under the caption
"United States Federal Income Taxation," to the extent such statements
constitute a summary of applicable United States federal income tax law, are a
true and correct discussion of the relevant and material provisions of present
United States federal income tax law and correctly set forth our opinions
concerning (a) the treatment of the Exchange Offer, (b) the classification of
CNBF Capital Trust I as a grantor trust for federal income tax purposes, and (c)
the classification of the junior subordinated debenture held by the Trust as
debt for federal income tax purposes.
This opinion is based upon the Internal Revenue Code of 1986, as amended,
the Treasury regulations promulgated thereunder and other relevant authorities
and law, all as in effect on the date hereof. All of the above are subject to
change or modification by subsequent legislative, regulatory, administrative or
judicial decisions which could adversely affect our opinions. Consequently,
future changes in the law, or administrative or judicial interpretations
thereof, may cause the tax treatment of the transactions referred to herein to
be materially different from that described above.
Other than the specific tax opinions set forth in this letter, no other
opinion has been rendered with respect to the tax treatment of the Exchange
Offer and the ownership and disposition of the New Securities, including, but
not limited to, their tax treatment under other provisions of the Code and the
regulations, the tax treatment of any conditions existing at the time of, or
effects resulting from, the Exchange Offer and the ownership and disposition of
the New Securities that are not specifically covered by the above opinions, or
the tax treatment under state, local, foreign or any other tax laws.
Very truly yours,
/s/ ARNOLD & PORTER
<PAGE> 1
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
CNB Financial Corp.
We consent to incorporation by reference in the Registration Statement on Form
S-4 related to the Series B Floating Rate Capital Securities of CNBF Capital
Trust I of our report dated February 19, 1999 relating to the consolidated
balance sheets of CNB Financial Corp. and subsidiaries (the "Company") as of
December 31, 1998 and 1997, and the related consolidated statements of income,
changes in stockholders' equity, and cash flows for the years then ended, which
report appears in the Annual Report on Form 10-K of CNB Financial Corp. for the
year ended December 31, 1998. The Company's consolidated statements of income,
changes in stockholders' equity, and cash flows for the year ended December 31,
1996 (also included in the Annual Report on Form 10-K of CNB Financial Corp. for
the year ended December 31, 1998) were audited by other auditors whose report
thereon dated January 30, 1997 expressed an unqualified opinion on those
statements.
We also consent to the reference to our firm under the heading "Independent
Auditors" in the prospectus.
/s/ KPMG LLP
Albany, New York
November 5, 1999
<PAGE> 1
Exhibit 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 of CNB Financial Corp. of our report dated January 30,
1997 relating to the financial statements, which appears in the CNB Financial
Corp. 1998 Annual Report to Shareholders, which is incorporated by reference in
its Annual Report on Form 10-K for the year ended December 31, 1998. We also
consent to the reference to us under the headings "Independent Auditors" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
Syracuse, New York
November 5, 1999
<PAGE> 1
EXHIBIT 25.1
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)
<TABLE>
<S> <C>
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
</TABLE>
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)
CNB FINANCIAL CORP.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
New York 22-3203747
(State of incorporation) (I.R.S. employer identification no.)
24 Church Street
Canajoharie, New York 13317
(Address of principal executive offices) (Zip Code)
</TABLE>
Series B Floating Rate Junior Subordinated Deferrable Interest Debentures of CNB
Financial Corp.
(Title of the indenture securities)
1
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C>
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.
</TABLE>
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 11th day
of November, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Christopher L. Kaiser By: /s/ W. Chris Sponenberg
-------------------------- -------------------------
Name: Christopher L. Kaiser Name: W. Chris Sponenberg
Title: Assistant Vice President Title: Assistant Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
3
<PAGE> 4
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.:
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<PAGE> 5
(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 Corporation shall require, to make
by-laws not inconsistent with the Constitution or laws of
the United States or of this State, to discount bills,
notes or other evidences of debt, to receive deposits of
money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of
exchange, and generally to use, exercise and enjoy all
the powers, rights, privileges and franchises incident to
a corporation which are proper or necessary for the
transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or
any estate or interests therein, and to guarantee the
holder of such property, real or personal, against any
claim or claims, adverse to his interest therein, and to
prepare and give certificates of title for any lands or
premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the
receipt, collection, custody, investment and management
of funds, and the purchase, sale, management and disposal
of property of all descriptions, and to prepare and
execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds,
leases, conveyances, mortgages, bonds and legal papers of
every description, and to carry on the business of
conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money,
jewelry, plate, deeds, bonds and any and all other
personal property of every sort and kind, from executors,
administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries,
and from all other persons and individuals, and from all
corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other
receptacles for such property.
(6) To act as agent or otherwise for the purpose of
registering, issuing, certificating, countersigning,
transferring or underwriting the stock, bonds or other
obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the
two parties, and in like manner may act as Treasurer of
any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage,
bond or other
2
<PAGE> 6
instrument issued by any state, municipality, body
politic, corporation, association or person, either alone
or in conjunction with any other person or persons,
corporation or corporations.
(8) To guarantee the validity, performance or effect of
any contract or agreement, and the fidelity of persons
holding places of responsibility or trust; to become
surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations,
or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or
decree to be entered in any court of record within the
State of Delaware or elsewhere, or which may now or
hereafter be required by any law, judge, officer or court
in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as
trustee, trustee in bankruptcy, receiver, assignee,
assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and
all estates and property, real, personal or mixed, and to
be appointed as such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian or bailee by any persons,
corporations, court, officer, or authority, in the State
of Delaware or elsewhere; and whenever this Corporation
is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with
surety, but its capital stock shall be taken and held as
security for the performance of the duties devolving upon
it by such appointment.
(10) And for its care, management and trouble, and the
exercise of any of its powers hereby given, or for the
performance of any of the duties which it may undertake
or be called upon to perform, or for the assumption of
any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other
securities, obligations, contracts and evidences of
indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or
of the Government of the United States, or of any state,
territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect,
receipt for, and dispose of 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
3
<PAGE> 7
property held and owned by it, and to exercise in
respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property,
any and all the rights, powers and privileges of
individual owners thereof, including the right to vote
thereon; to invest and deal in and with any of the moneys
of the Corporation upon such securities and in such
manner as it may think fit and proper, and from time to
time to vary or realize such investments; to issue bonds
and secure the same by pledges or deeds of trust or
mortgages of or upon the whole or any part of the
property held or owned by the Corporation, and to sell
and pledge such bonds, as and when the Board of Directors
shall determine, and in the promotion of its said
corporate business of investment and to the extent
authorized by law, to lease, purchase, hold, sell,
assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate
or interest therein.
(b) In furtherance of, and not in limitation, of the powers
conferred by the laws of the State of Delaware, it is hereby
expressly provided that the said Corporation shall also have the
following powers:
(1) To do any or all of the things herein set forth, to
the same extent as natural persons might or could do, and
in any part of the world.
(2) To acquire the good will, rights, property and
franchises and to undertake the whole or any part of the
assets and liabilities of any person, firm, association
or corporation, and to pay for the same in cash, stock of
this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the
property so purchased; to conduct in any lawful manner
the whole or any part of any business so acquired, and to
exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise
lien, and to lease, sell, exchange, transfer, or in any
manner whatever dispose of property, real, personal or
mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts
of every kind with any person, firm, association or
corporation, and, without limit as to amount, to draw,
make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or 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,
4
<PAGE> 8
convey or otherwise dispose of, real and personal
property, of every class and description, in any State,
District, Territory or Colony of the United States, and
in any foreign country or place.
(6) It is the intention that the objects, purposes and
powers specified and clauses contained in this paragraph
shall (except where otherwise expressed in said
paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the
clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock
which the Corporation shall have authority to issue
is forty-one million (41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock,
par value $10.00 per share (hereinafter referred to as
"Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock,
par value $1.00 per share (hereinafter referred to as
"Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the
Board of Directors each of said series to be distinctly
designated. All shares of any one series of Preferred Stock shall
be alike in every particular, except that there may be different
dates from which dividends, if any, thereon shall be cumulative,
if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each
such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series
at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article Fourth, the Board
of Directors of the Corporation is hereby expressly granted
authority to fix by resolution or resolutions adopted prior to the
issuance of any shares of a particular series of Preferred Stock,
the voting powers and the designations, preferences and relative,
optional and other special rights, and the qualifications,
limitations and restrictions of such series, including, but
without limiting the generality of the 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,
5
<PAGE> 9
dividends, if any, on Preferred Stock of such series
shall be paid, the extent of the preference or relation,
if any, of such dividends to the dividends payable on any
other class or classes, or series of the same or other
class of stock and whether such dividends shall be
cumulative or non-cumulative;
(3) The right, if any, of the holders of Preferred Stock
of such series to convert the same into or exchange the
same for, shares of any other class or classes or of any
series of the same or any other class or classes of stock
of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall
be subject to redemption, and the redemption price or
prices and the time or times at which, and the terms and
conditions on which, Preferred Stock of such series may
be redeemed.
(5) The rights, if any, of the holders of Preferred Stock
of such series upon the voluntary or involuntary
liquidation, merger, consolidation, distribution or sale
of assets, dissolution or winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or
purchase account, if any, to be provided for the
Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such
series of Preferred Stock which may, without limiting the
generality of the foregoing include the right, voting as
a series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation
if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or
under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential
dividends on the Preferred Stock (fixed in accordance with the
provisions of section (b) of this Article 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
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<PAGE> 10
involuntary liquidation, distribution or sale of assets,
dissolution or winding-up, of the Corporation, the
holders of the Common Stock shall be entitled to receive
all of the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for
distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them
respectively.
(3) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be
adopted by the Board of Directors pursuant to section (b)
of this Article Fourth, each holder of Common Stock shall
have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock
or of options, warrants or other rights to purchase shares of any
class or series of stock or of other securities of the Corporation
shall have any preemptive right to purchase or subscribe for any
unissued stock of any class or series or any additional shares of
any class or series to be issued by reason of any increase of the
authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of the
Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued
stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for
stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to
such persons, firms, corporations or associations, whether such
holders or others, and upon such terms as may be deemed advisable
by the Board of Directors in the exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences
and rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of 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> 11
(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
8
<PAGE> 12
Corporation), any director or the entire Board of Directors of the
Corporation may be removed at any time without cause, but only by
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called
for that purpose.
(d) Nominations for the election of directors may be made by the
Board of Directors or by any stockholder entitled to vote for the
election of directors. Such nominations shall be made by notice in
writing, delivered or mailed by first class United States mail,
postage prepaid, to the Secretary of the Corporation not less than
14 days nor more than 50 days prior to any meeting of the
stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given
to stockholders, such written notice shall be delivered or mailed,
as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations
which are proposed by the Board of Directors shall be given by the
Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name,
age, business address and, if known, residence address of each
nominee proposed in such notice, (ii) the principal occupation or
employment of such nominee and (iii) the number of shares of stock
of the Corporation which are beneficially owned by each such
nominee.
(f) The Chairman of the meeting may, if the facts warrant,
determine and declare to 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, agents and
servants as may be provided in the By-Laws as they may
from time to time find necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same
powers, rights and privileges as may be conferred upon
corporations organized under the Act entitled "An Act Providing a
General Corporation Law", approved March 10, 1899, as from time to
time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a
majority of the whole Board, may designate any of their number to
constitute an Executive Committee, which Committee, to the extent
provided in said resolution, or in the By-Laws of the Company,
shall have and may exercise all of the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be
liable for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of
the world.
Thirteenth: - The Board of Directors of the Corporation is
expressly authorized to make, alter or repeal the By-Laws of the
Corporation by a vote of the majority of the entire Board. The
stockholders may make, alter or repeal any By-Law whether or not
adopted by them, provided however, that any such additional
By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside
of the State of Delaware at such places as may be from time to
time designated by the Board, and the Directors may keep the books
of the Company outside of the State of Delaware at such places as
may be from time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required
by law, and except as otherwise expressly provided in sections
(b) and (c) of this Article Fifteenth:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii)
any other corporation (whether or not itself an
Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter
defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
related transactions) to or with any Interested
Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of
$1,000,000 or more, or
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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 in 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 or By-Laws if such business combination has
been approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or
other entity.
(2) "Interested Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation or
any Subsidiary) who or which as of the record date for the
determination of stockholders entitled to notice of and to vote on
such
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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 on 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
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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 share 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
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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 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 divisions of the Company as it may deem
advisable.
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ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed
of not more than nine members who shall be selected by the Board of Directors
from its own members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the
powers of the Board of Directors when it is not in session to transact all
business for and in behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the
principal office of the Company or elsewhere in its discretion at such times to
be determined by a majority of its members, or at the call of the Chairman of
the Executive Committee or at the call of the Chairman of the Board of
Directors. The majority of its members shall be necessary to constitute a quorum
for the transaction of business. Special meetings of the Executive Committee may
be held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive
Committee shall be kept and submitted to the Board of Directors at its next
meeting.
(E) The Executive Committee shall advise and
superintend all investments that may be made of the funds of the Company, and
shall direct the disposal of the same, in accordance with such rules and
regulations as the Board of Directors from time to time make.
(F) In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs and
business of the Company by its directors and officers as contemplated by these
By-Laws any two available members of the Executive Committee as constituted
immediately prior to such disaster shall constitute a quorum of that Committee
for the full conduct and management of the affairs and business of the Company
in accordance with the provisions of Article III of these By-Laws; and if less
than three members of the Trust Committee is constituted immediately prior to
such disaster shall be available for the transaction of its business, such
Executive Committee shall also be empowered to exercise all of the powers
reserved to the Trust Committee under Article III Section 2 hereof. In the event
of the unavailability, at such time, of a minimum of two members of such
Executive Committee, any three available directors shall constitute the
Executive Committee for the full conduct and management of the affairs and
business of the Company in accordance with the foregoing
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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.
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
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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 five (5) members who shall be selected by the Board
of Directors from its own members who are not officers of the Company and who
shall hold office during the pleasure of the Board.
(B) The Compensation Committee shall in general
advise upon all matters of policy concerning the Company brought to its
attention by the management and from time to time review the management of the
Company, major organizational matters, including salaries and employee benefits
and specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may
be called at any time by the Chairman of the Compensation Committee, the
Chairman of the Board of Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may
be elected by the Board of Directors as an associate director, to serve during
the pleasure of the Board.
(B) An associate director shall be entitled to
attend all directors meetings and participate in the discussion of all matters
brought to the Board, with the exception that he would have no right to vote.
An associate director will be eligible for appointment to Committees of the
Company, with the exception of the Executive Committee, Audit Committee and
Compensation Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a
Committee
(A) In the absence or disqualification of any
member of any Committee created under Article III of the By-Laws of this
Company, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
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ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at
all meetings of the Board and shall have such further authority and powers and
shall perform such duties as the Board of Directors may from time to time confer
and direct. He shall also exercise such powers and perform such duties as may
from time to time be agreed upon between himself and the President of the
Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of
the Board of Directors shall preside at all meetings of the Board of Directors
at which the Chairman of the Board shall not be present and shall have such
further authority and powers and shall perform such duties as the Board of
Directors or the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute or assigned to him by the Board of Directors. In the absence of the
Chairman of the Board the President shall have the powers and duties of the
Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President
as designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however
denominated by the Board of Directors, who may at any time perform all the
duties of the Chairman of the Board of Directors and/or the President and such
other powers and duties as may from time to time be assigned to them by the
Board of Directors, the Executive Committee, the Chairman of the Board or the
President and by the officer in charge of the department or division to which
they are assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
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Section 7. The Treasurer shall have general supervision over all
assets and liabilities of the Company. He shall be custodian of and responsible
for all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller
officers however denominated, who may perform the duties of the Controller and
such duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be
in charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit
Officers, however denominated, who may perform all the duties of the Auditor and
such duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank
to all Vice Presidents with such functional titles as shall be determined from
time to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the
Company shall be those usually pertaining to their respective offices, subject
to the direction of the Board of Directors, the Executive Committee, Chairman of
the Board of Directors or the President and the officer in charge of the
department or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
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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. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to
fix in advance a record date for the determination of the stockholders entitled
to notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
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Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other
than salaried officers of the Company, shall be paid such reasonable honoraria
or fees for attending meetings of the Board of Directors as the Board of
Directors may from time to time determine. Directors and associate directors who
serve as members of committees, other than salaried employees of the Company,
shall be paid such reasonable honoraria or fees for services as members of
committees as the Board of Directors shall from time to time determine and
directors and associate directors may be employed by the Company for such
special services as the Board of Directors may from time to time determine and
shall be paid for such special services so performed reasonable compensation as
may be determined by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless,
to the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was 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
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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 or
officer in his capacity as a Director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Director or officer to repay all amounts advanced if it should be
ultimately determined that the Director or officer is not entitled to be
indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment
of expenses, under this Article X is not paid in full within ninety days after a
written claim therefor has been received by the Corporation the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification of payment of
expenses under applicable law.
(D) The rights conferred on any person by this
Article X shall not be exclusive of any other rights which such person may have
or hereafter acquire under any statute, provision of the Charter or Act of
Incorporation, these By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise.
(E) Any repeal or modification of the foregoing
provisions of this Article X shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in
whole or in part, and any new By-Law or By-Laws adopted at any regular or
special meeting of the Board of Directors by a vote of the majority of all the
members of the Board of Directors then in office.
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<PAGE> 29
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.
<TABLE>
<S> <C>
WILMINGTON TRUST COMPANY
Dated: November 11, 1999 By: /s/ W. Chris Sponenberg
----------------------------------------- ------------------------
Name: W. Chris Sponenberg
Title: Assistant Vice President
</TABLE>
11
<PAGE> 30
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 June 30, 1999.
ASSETS
Thousands of dollars
<TABLE>
<CAPTION>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins 207,947
Interest-bearing balances 0
<S> <C> <C>
Held-to-maturity securities 37,680
Available-for-sale securities 1,598,933
Federal funds sold and securities purchased under agreements to resell 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve 4,167,324
Assets held in trading accounts 0
Premises and fixed assets (including capitalized leases) 141,415
Other real estate owned 922
Investments in unconsolidated subsidiaries and associated companies 1,227
Customers' liability to this bank on acceptances outstanding 0
Intangible assets 5,179
Other assets 104,101
Total assets 6,445,094
</TABLE>
CONTINUED ON NEXT PAGE
12
<PAGE> 31
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C> <C>
Deposits:
In domestic offices 4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under agreements to repurchase 344,719
Demand notes issued to the U.S. Treasury 83,802
Trading liabilities (from Schedule RC-D) 0
Other borrowed money: ///////
With original maturity of one year or less 860,000
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) 80,279
Total liabilities 5,986,309
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 412,409
Net unrealized holding gains (losses) on available-for-sale securities (16,242)
Total equity capital 458,785
Total liabilities, limited-life preferred stock, and equity capital6,445,094
</TABLE>
<PAGE> 1
EXHIBIT 25.2
Registration No.:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
</TABLE>
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)
CNB FINANCIAL CORP.
CNBF CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
New York 22-3203747
Delaware Applied For
(State of incorporation) (I.R.S. employer identification no.)
24 Church Street
Canajoharie, New York 13317
(Address of principal executive offices) (Zip Code)
Series B Floating Rate Capital Securities of CNBF Capital Trust I
(Title of the indenture securities)
1
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal 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 11th day
of November, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Christopher L. Kaiser By: /s/ W. Chris Sponenberg
----------------------------- ---------------------------
Name: Christopher L. Kaiser Name: W. Chris Sponenberg
Title: Assistant Vice President Title: Assistant Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
3
<PAGE> 4
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.:
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<PAGE> 5
(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 Corporation shall require, to make by-laws not
inconsistent with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of debt, to
receive deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights, privileges
and franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real or
personal, against any claim or claims, adverse to his interest therein,
and to prepare and give certificates of title for any lands or premises
in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all descriptions,
and to prepare and execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description, and
to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds,
bonds and any and all other personal property of every sort and kind,
from executors, administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries, and from all
other persons and individuals, and from all corporations whether state,
municipal, corporate or private, and to rent boxes, safes, vaults and
other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering, issuing,
certificating, countersigning, transferring or underwriting the stock,
bonds or other obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund therefor on
such terms as may be agreed upon between the two parties, and in like
manner may act as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
2
<PAGE> 6
instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract or
agreement, and the fidelity of persons holding places of responsibility
or trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons, corporation,
or corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be entered
in any court of record within the State of Delaware or elsewhere, or
which may now or hereafter be required by any law, judge, officer or
court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons, corporations,
court, officer, or authority, in the State of Delaware or elsewhere; and
whenever this Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not be
required to give bond with surety, but its capital stock shall be taken
and held as security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the exercise of any of
its powers hereby given, or for the performance of any of the duties
which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts and
evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or country; to receive,
collect, receipt for, and dispose of 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
3
<PAGE> 7
property held and owned by it, and to exercise in respect of all such
bonds, mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property, any
and all the rights, powers and privileges of individual owners thereof,
including the right to vote thereon; to invest and deal in and with any
of the moneys of the Corporation upon such securities and in such manner
as it may think fit and proper, and from time to time to vary or realize
such investments; to issue bonds and secure the same by pledges or deeds
of trust or mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge such bonds, as
and when the Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage
and convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the
laws of the State of Delaware, it is hereby expressly provided that the said
Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent
as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so purchased;
to conduct in any lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit as
to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or 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,
4
<PAGE> 8
convey or otherwise dispose of, real and personal property, of every
class and description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers specified
and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00
per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors each
of said series to be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be cumulative, if
made cumulative. The voting powers and the preferences and relative,
participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to
the provisions of subparagraph 1 of Paragraph (c) of this Article Fourth, the
Board of Directors of the Corporation is hereby expressly granted authority
to fix by resolution or resolutions adopted prior to the issuance of any
shares of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the 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,
5
<PAGE> 9
dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other class of stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series
to convert the same into or exchange the same for, shares of any other
class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series
upon the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred
Stock which may, without limiting the generality of the foregoing include
the right, voting as a series or by itself or together with other series
of Preferred Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of section (b) of
this Article 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
6
<PAGE> 10
involuntary liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder of
Common Stock shall have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of the Corporation of
any class or series, or carrying any right to purchase stock of any class or
series, but any such unissued stock, additional authorized issue of shares of
any class or series of stock or securities convertible into or exchangeable
for stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to such persons,
firms, corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of Preferred
Stock in relation to the relative powers, preferences and rights of each
other series of Preferred Stock shall, in each case, be as fixed from time to
time by the Board of 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.
7
<PAGE> 11
(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
8
<PAGE> 12
Corporation), any director or the entire Board of Directors of the
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered or
mailed by first class United States mail, postage prepaid, to the Secretary
of the Corporation not less than 14 days nor more than 50 days prior to any
meeting of the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of
the seventh day following the day on which notice of the meeting was mailed
to stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of such nominee and
(iii) the number of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to 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, agents and servants as may
be provided in the By-Laws as they may from time to time find necessary or
proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved March
10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or in
the By-Laws of the Company, shall have and may exercise all of the powers of
the Board of Directors in the management of the business and affairs of the
Corporation, and shall have power to authorize the seal of the Corporation to
be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable for
the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a vote
of the majority of the entire Board. The stockholders may make, alter or
repeal any By-Law whether or not adopted by them, provided however, that any
such additional By-Laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class).
Fourteenth: - Meetings of the Directors may be held outside of the State of
Delaware at such places as may be from time to time designated by the Board,
and the Directors may keep the books of the Company outside of the State of
Delaware at such places as may be from time to time designated by them.
Fifteenth: - (a) (1) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
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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 in 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 or
By-Laws if such business combination has been approved by a majority of
the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who or
which as of the record date for the determination of stockholders entitled to
notice of and to vote on such
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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 on
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
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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 share 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
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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 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 divisions of the Company as it may deem
advisable.
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ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing
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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.
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
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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
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
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ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of Directors shall preside at all meetings of the Board of Directors at which
the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors. In the absence of the Chairman of the Board
the President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
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Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
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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. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the
words "Wilmington Trust Company"
within the inner circle the words
"Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
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Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was 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
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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 or officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
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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: November 11, 1999 By: /s/ W. Chris Sponenberg
-------------------------- ---------------------------
Name: W. Chris Sponenberg
Title: Assistant Vice President
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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 June 30, 1999.
----------
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins 207,947
Interest-bearing balances 0
Held-to-maturity securities 37,680
Available-for-sale securities 1,598,933
Federal funds sold and securities purchased under agreements to resell 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve 4,167,324
Assets held in trading accounts 0
Premises and fixed assets (including capitalized leases) 141,415
Other real estate owned 922
Investments in unconsolidated subsidiaries and associated companies 1,227
Customers' liability to this bank on acceptances outstanding 0
Intangible assets 5,179
Other assets 104,101
Total assets 6,445,094
CONTINUED ON NEXT PAGE
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LIABILITIES
Deposits:
In domestic offices 4,574,509
Noninterest-bearing . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold
under agreements to repurchase 344,719
Demand notes issued to the U.S. Treasury 83,802
Trading liabilities (from Schedule RC-D) 0
Other borrowed money: ///////
With original maturity of one year or less 860,000
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) 80,279
Total liabilities 5,986,309
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 412,409
Net unrealized holding gains (losses) on available-for-sale securities (16,242)
Total equity capital 458,785
Total liabilities, limited-life preferred stock, and equity capital 6,445,094
<PAGE> 1
EXHIBIT 25.3
Registration No.:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
</TABLE>
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)
CNB FINANCIAL CORP.
(Exact name of obligor as specified in its charter)
New York 22-3203747
(State of incorporation) (I.R.S. employer identification no.)
24 Church Street
Canajoharie, New York 13317
(Address of principal executive offices) (Zip Code)
CNB Financial Corp. Series B Guarantee with respect to Series B Floating Rate
Capital Securities
(Title of the indenture securities)
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 11th day
of November, 1999.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Christopher L. Kaiser By: /s/ W. Chris Sponenberg
------------------------------ ------------------------
Name: /s/ Christopher L. Kaiser Name: /s/ W. Chris Sponenberg
Title: Assistant Vice President Title: Assistant Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
3
<PAGE> 4
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.:
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(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 Corporation shall require, to make by-laws not
inconsistent with the Constitution or laws of the United States or of
this State, to discount bills, notes or other evidences of debt, to
receive deposits of money, or securities for money, to buy gold and
silver bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights, privileges
and franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real or
personal, against any claim or claims, adverse to his interest therein,
and to prepare and give certificates of title for any lands or premises
in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all descriptions,
and to prepare and execute all papers which may be necessary or proper in
such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description, and
to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate, deeds,
bonds and any and all other personal property of every sort and kind,
from executors, administrators, guardians, public officers, courts,
receivers, assignees, trustees, and from all fiduciaries, and from all
other persons and individuals, and from all corporations whether state,
municipal, corporate or private, and to rent boxes, safes, vaults and
other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering, issuing,
certificating, countersigning, transferring or underwriting the stock,
bonds or other obligations of any corporation, association, state or
municipality, and may receive and manage any sinking fund therefor on
such terms as may be agreed upon between the two parties, and in like
manner may act as Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
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<PAGE> 6
instrument issued by any state, municipality, body politic, corporation,
association or person, either alone or in conjunction with any other
person or persons, corporation or corporations.
(8) To guarantee the validity, performance or effect of any contract or
agreement, and the fidelity of persons holding places of responsibility
or trust; to become surety for any person, or persons, for the faithful
performance of any trust, office, duty, contract or agreement, either by
itself or in conjunction with any other person, or persons, corporation,
or corporations, or in like manner become surety upon any bond,
recognizance, obligation, judgment, suit, order, or decree to be entered
in any court of record within the State of Delaware or elsewhere, or
which may now or hereafter be required by any law, judge, officer or
court in the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee, trustee in
bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian or bailee by any persons, corporations,
court, officer, or authority, in the State of Delaware or elsewhere; and
whenever this Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor, administrator,
guardian, bailee, or in any other trust capacity, it shall not be
required to give bond with surety, but its capital stock shall be taken
and held as security for the performance of the duties devolving upon it
by such appointment.
(10) And for its care, management and trouble, and the exercise of any of
its powers hereby given, or for the performance of any of the duties
which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled to
receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts and
evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony, or
possession thereof, or of any foreign government or country; to receive,
collect, receipt for, and dispose of 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
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<PAGE> 7
property held and owned by it, and to exercise in respect of all such
bonds, mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property, any
and all the rights, powers and privileges of individual owners thereof,
including the right to vote thereon; to invest and deal in and with any
of the moneys of the Corporation upon such securities and in such manner
as it may think fit and proper, and from time to time to vary or realize
such investments; to issue bonds and secure the same by pledges or deeds
of trust or mortgages of or upon the whole or any part of the property
held or owned by the Corporation, and to sell and pledge such bonds, as
and when the Board of Directors shall determine, and in the promotion of
its said corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge, mortgage
and convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by the
laws of the State of Delaware, it is hereby expressly provided that the said
Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same extent
as natural persons might or could do, and in any part of the world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so purchased;
to conduct in any lawful manner the whole or any part of any business so
acquired, and to exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit as
to amount, to draw, make, accept, endorse, discount, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
and other negotiable or 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,
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<PAGE> 8
convey or otherwise dispose of, real and personal property, of every
class and description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place.
(6) It is the intention that the objects, purposes and powers specified
and clauses contained in this paragraph shall (except where otherwise
expressed in said paragraph) be nowise limited or restricted by reference
to or inference from the terms of any other clause of this or any other
paragraph in this charter, but that the objects, purposes and powers
specified in each of the clauses of this paragraph shall be regarded as
independent objects, purposes and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value $10.00
per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors each
of said series to be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular, except that there may be
different dates from which dividends, if any, thereon shall be cumulative, if
made cumulative. The voting powers and the preferences and relative,
participating, optional and other special rights of each such series, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and, subject to
the provisions of subparagraph 1 of Paragraph (c) of this Article Fourth, the
Board of Directors of the Corporation is hereby expressly granted authority
to fix by resolution or resolutions adopted prior to the issuance of any
shares of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special rights,
and the qualifications, limitations and restrictions of such series,
including, but without limiting the generality of the 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,
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<PAGE> 9
dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the
dividends payable on any other class or classes, or series of the same or
other class of stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such series
to convert the same into or exchange the same for, shares of any other
class or classes or of any series of the same or any other class or
classes of stock of the Corporation and the terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such series
upon the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of Preferred
Stock which may, without limiting the generality of the foregoing include
the right, voting as a series or by itself or together with other series
of Preferred Stock or all series of Preferred Stock as a class, to elect
one or more directors of the Corporation if there shall have been a
default in the payment of dividends on any one or more series of
Preferred Stock or under such circumstances and on such conditions as the
Board of Directors may determine.
(c) (1) After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of section (b) of
this Article 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
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<PAGE> 10
involuntary liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each holder of
Common Stock shall have one vote in respect of each share of Common Stock
held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any preemptive
right to purchase or subscribe for any unissued stock of any class or series
or any additional shares of any class or series to be issued by reason of any
increase of the authorized capital stock of the Corporation of any class or
series, or bonds, certificates of indebtedness, debentures or other
securities convertible into or exchangeable for stock of the Corporation of
any class or series, or carrying any right to purchase stock of any class or
series, but any such unissued stock, additional authorized issue of shares of
any class or series of stock or securities convertible into or exchangeable
for stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to such persons,
firms, corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of Preferred
Stock in relation to the relative powers, preferences and rights of each
other series of Preferred Stock shall, in each case, be as fixed from time to
time by the Board of Directors in the resolution or resolutions adopted
pursuant to authority granted in section (b) of this Article Fourth and the
consent, by class or series vote or otherwise, of the holders of such of the
series of Preferred Stock as are from time to time outstanding shall not be
required for the issuance by the Board of Directors of any other series of
Preferred Stock whether or not the powers, preferences and rights of such
other series shall be fixed by the Board of Directors as senior to, or on a
parity with, the powers, preferences and rights of such outstanding series,
or any of them; provided, however, that the Board of Directors may provide in
the resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein fixed)
of the outstanding shares of such series voting thereon shall be required for
the issuance of any or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors of
the Corporation shall determine and on such terms and for such consideration
as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors. (h) The authorized
amount of shares of Common Stock and of Preferred Stock may, without a class
or series vote, be increased or decreased from time to time by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be conducted
and managed by a Board of Directors. The number of directors constituting the
entire Board shall be not less than five nor more than twenty-five as fixed
from time to time by vote of a majority of the whole Board, provided,
however, that the number of directors shall not be reduced so as to shorten
the term of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be twenty-four
until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the whole
Board permits, with the term of office of one class expiring each year. At
the annual meeting of stockholders in 1982, directors of the first class
shall be elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to hold office
for a term expiring at the second succeeding annual meeting and directors of
the third class shall be elected to hold office for a term expiring at the
third succeeding annual meeting. Any vacancies in the Board of Directors for
any reason, and any newly created directorships resulting from any increase
in the directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a quorum, and
any directors so chosen shall hold office until the next annual election of
directors. At such election, the stockholders shall elect a successor to such
director to hold office until the next election of the class for which such
director shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term of
any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Charter or Act of
Incorporation or the By-Laws of the
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<PAGE> 12
Corporation), any director or the entire Board of Directors of the
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered or
mailed by first class United States mail, postage prepaid, to the Secretary
of the Corporation not less than 14 days nor more than 50 days prior to any
meeting of the stockholders called for the election of directors; provided,
however, that if less than 21 days' notice of the meeting is given to
stockholders, such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of
the seventh day following the day on which notice of the meeting was mailed
to stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of such nominee and
(iii) the number of shares of stock of the Corporation which are beneficially
owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to 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, agents and servants as may
be provided in the By-Laws as they may from time to time find necessary or
proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved March
10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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<PAGE> 13
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)(1) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with or into (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other corporation (whether or not itself
an Interested Stockholder), which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an Interested
Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to
or with any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
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<PAGE> 14
(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 in 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 or
By-Laws if such business combination has been approved by a majority of
the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual, firm, corporation or other entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who or
which as of the record date for the determination of stockholders entitled to
notice of and to vote on such
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<PAGE> 15
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> 16
(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 on
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
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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 share 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
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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 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 divisions of the Company as it may deem
advisable.
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ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing
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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.
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
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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
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
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ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of Directors shall preside at all meetings of the Board of Directors at which
the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors. In the absence of the Chairman of the Board
the President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
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Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
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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. Certificates of stock shall bear the signature of the
President or any Vice President, however denominated by the Board of Directors
and countersigned by the Secretary or Treasurer or an Assistant Secretary, and
the seal of the corporation shall be engraved thereon. Each certificate shall
recite that the stock represented thereby is transferrable only upon the books
of the Company by the holder thereof or his attorney, upon surrender of the
certificate properly endorsed. Any certificate of stock surrendered to the
Company shall be cancelled at the time of transfer, and before a new certificate
or certificates shall be issued in lieu thereof. Duplicate certificates of stock
shall be issued only upon giving such security as may be satisfactory to the
Board of Directors or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the
words "Wilmington Trust Company"
within the inner circle the words
"Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
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Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was 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
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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 or officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
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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: November 11, 1999 By: /s/ W. Chris Sponenberg
----------------------- ------------------------
Name: W. Chris Sponenberg
Title: Assistant Vice President
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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 June 30, 1999.
-----------
ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins 207,947
Interest-bearing balances 0
Held-to-maturity securities 37,680
Available-for-sale securities 1,598,933
Federal funds sold and securities purchased under agreements to resell 180,366
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . 4,237,557
LESS: Allowance for loan and lease losses. . . . . . . 70,233
LESS: Allocated transfer risk reserve. . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve 4,167,324
Assets held in trading accounts 0
Premises and fixed assets (including capitalized leases) 141,415
Other real estate owned 922
Investments in unconsolidated subsidiaries and associated companies 1,227
Customers' liability to this bank on acceptances outstanding 0
Intangible assets 5,179
Other assets 104,101
Total assets 6,445,094
CONTINUED ON NEXT PAGE
12
<PAGE> 30
LIABILITIES
Deposits:
In domestic offices 4,574,509
Noninterest-bearing . . . . . . . . . 992,436
Interest-bearing. . . . . . . . . . 3,582,073
Federal funds purchased and Securities sold under
agreements to repurchase 344,719
Demand notes issued to the U.S. Treasury 83,802
Trading liabilities (from Schedule RC-D) 0
Other borrowed money: ///////
With original maturity of one year or less 860,000
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) 80,279
Total liabilities 5,986,309
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 412,409
Net unrealized holding gains (losses) on available-for-sale securities (16,242)
Total equity capital 458,785
Total liabilities, limited-life preferred stock, and equity capital 6,445,094
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
CNBF CAPITAL TRUST I
OFFER TO EXCHANGE ITS
SERIES B FLOATING RATE CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL
SECURITY) WHICH HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
SERIES A FLOATING RATE CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED ___________, 1999
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 5:00 P.M., NEW YORK CITY TIME, ON ______________, _____,
UNLESS THE OFFER IS EXTENDED.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WILMINGTON TRUST COMPANY
<TABLE>
<CAPTION>
<S> <C>
By Registered or Certified Mail By Hand or Overnight Delivery
- ---------------------------------------------- --------------------------------------------
Wilmington Trust Company Wilmington Trust Company
1105 North Market Street 1105 North Market Street
Wilmington, DE 19890-0001 Wilmington, DE 19890-0001
Attn: Kristin F. Long Attn: Kristin F. Long
Trust Operations Trust Operations
</TABLE>
Confirm by Telephone or for
Information call:
(302) 651-1562
Facsimile Transmissions:
(Eligible Institutions Only)
(302) 651-1079
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE
THIS LETTER OF TRANSMITTAL IS COMPLETED.
CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE SAME
MEANING GIVEN THEM IN THE PROSPECTUS (AS DEFINED BELOW).
This Letter of Transmittal is to be completed by holders of Series A
Floating Rate Capital Securities of CNBF Capital Trust I (the "Original Capital
Securities") either if (i) Original Capital
<PAGE> 2
Securities are to be forwarded herewith or (ii) tenders of Original Capital
Securities are to be made by book-entry transfer to an account maintained
by Wilmington Trust Company (the "Exchange Agent") at The Depository Trust
Company ("DTC") pursuant to the procedures set forth in "The Exchange Offer
- - Procedures for Tendering Original Capital Securities" in the Prospectus.
Holders of Original Capital Securities whose certificates (the
"Certificates") for such Original Capital Securities are not immediately
available or who cannot deliver their Certificates and all other required
documents to the Exchange Agent on or prior to the expiration date (as indicated
in the Prospectus) or who cannot complete the procedures for book-entry transfer
on or prior to the expiration date, must tender their Original Capital
Securities according to the guaranteed delivery procedures set forth in "The
Exchange Offer Procedures for Tendering Original Capital Securities" in the
Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
ALL TENDERING HOLDERS COMPLETE THIS BOX:
DESCRIPTION OF ORIGINAL CAPITAL SECURITIES TENDERED
(See Instruction 4)
Name(s) and Address(es) of Registered Holder(s):
(Please fill in, if blank)
Certificate Number(s)*
Aggregate Liquidation Amount of Original Capital Securities
Liquidation Amount of Original Capital Securities Tendered**
Total Amount Tendered:
- --------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Original Capital Securities may be tendered in whole or in part in
denominations of $100,000 and integral multiples of $1,000 in excess thereof,
provided that if any Original Capital Securities are tendered for exchange in
part, the untendered principal amount thereof must be $100,000 or any integral
multiple of $1,000 in excess thereof. All Original Capital Securities held shall
be deemed tendered unless a lesser number is specified in this column.
- --------------------------------------------------------------------------------
-2-
<PAGE> 3
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED ORIGINAL CAPITAL SECURITIES ARE
BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED
BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
---------------------------------------
DTC Account Number
---------------------------------------
Transaction Code Number
---------------------------------------
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF
GUARANTEED DELIVERY IF TENDERED ORIGINAL CAPITAL SECURITIES ARE BEING
DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT
TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s)
---------------------------------------
Window Ticket Number (if any)
---------------------------------------
Date of Execution of Notice of Guaranteed Delivery
-------------------
Name of Institution which Guaranteed Delivery
------------------------
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Institution Tendering
------------------------------
DTC Account Number
---------------------------------------
Transaction Code Number
------------------------------------
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-
EXCHANGED OR NONTENDERED ORIGINAL CAPITAL SECURITIES ARE TO BE
RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE
ORIGINAL CAPITAL SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF
MARKET-MAKING OR OTHER TRADING ACTIVITIES (A "PARTICIPATING
BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name
----------------------------------------------------------------
Address
-------------------------------------------------------------
Area Code and Telephone Number
--------------------------------------
Contact Person
------------------------------------------------------
-3-
<PAGE> 4
Ladies and Gentlemen:
The undersigned hereby tenders to CNBF Capital Trust I, a trust
created under the laws of Delaware (the "Trust"), and CNB Financial Corp., a New
York corporation (the "Company"), the above-described aggregate Liquidation
Amount of the Trust's Series A Floating Rate Capital Securities (the "Original
Capital Securities") in exchange for a like aggregate Liquidation Amount of the
Trust's Series B Floating Rate Capital Securities (the "Exchange Capital
Securities") which have been registered under the Securities Act of 1933 (the
"Securities Act"), upon the terms and subject to the conditions set forth in the
Prospectus, dated , 1999 (as the same may be amended or supplemented from time
to time, the "Prospectus"), receipt of which is acknowledged, and in this Letter
of Transmittal (which, together with the Prospectus, constitute the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or
any portion of the Original Capital Securities tendered herewith in accordance
with the terms and conditions of the Exchange Offer (including, if the Exchange
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Original Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent also is acting as agent of the
Company and the Trust in connection with the Exchange Offer) with respect to the
tendered Original Capital Securities, with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest), subject only to the right of withdrawal described in the Prospectus,
to (i) deliver Certificates for Original Capital Securities to the Company or
the Trust together with all accompanying evidences of transfer and authenticity
to, or upon the order of, the Trust, upon receipt by the Exchange Agent, as the
undersigned's agent, of the Exchange Capital Securities to be issued in exchange
for such Original Capital Securities, (ii) present Certificates for such
Original Capital Securities for transfer, and to transfer the Original Capital
Securities on the books of the Trust, and (iii) receive for the account of the
Trust all benefits and otherwise exercise all rights of beneficial ownership of
such Original Capital Securities, all in accordance with the terms and
conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED
HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE
ORIGINAL CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED
FOR EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY, THE TRUST OR THE
EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, SALE,
ASSIGNMENT AND TRANSFER OF THE ORIGINAL CAPITAL SECURITIES TENDERED HEREBY, AND
THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION RIGHTS
AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE
EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the
Original Capital Securities tendered hereby should be printed above, if they are
not already set forth above, as they appear on the Certificates representing
such Original Capital Securities. The Certificate number(s) of the Original
Capital Securities that the undersigned wishes to tender should be indicated in
the appropriate boxes above.
If any tendered Original Capital Securities are not exchanged
pursuant to the Exchange Offer for any reason, or if Certificates are submitted
for more Original Capital Securities than are tendered or accepted for exchange,
Certificates for such nonexchanged or nontendered Original Capital Securities
will be returned (or, in the case of Original Capital Securities tendered by
book-entry transfer, such Original Capital Securities will be credited to an
account maintained at DTC), without expense to the tendering holder, promptly
following the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Original Capital
Securities pursuant to any one of the procedures described in "The Exchange
Offer - Procedures for Tendering Original Capital Securities" in
-4-
<PAGE> 5
the Prospectus and in the Instructions herein will, upon the Company's and the
Trust's acceptance for exchange of such tendered Original Capital Securities,
constitute a binding agreement between the undersigned, the Company and the
Trust upon the terms and subject to the conditions of the Exchange Offer. The
undersigned recognizes that, under certain circumstances set forth in the
Prospectus, the Company and the Trust may not be required to accept for exchange
any of the Original Capital Securities tendered hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the Exchange
Capital Securities be issued in the name(s) of the undersigned or, in the case
of a book-entry transfer of Original Capital Securities, that such Exchange
Capital Securities be credited to the account indicated above maintained at DTC.
If applicable, substitute Certificates representing Original Capital Securities
not exchanged or not accepted for exchange will be issued to the undersigned or,
in the case of a book-entry transfer of Original Capital Securities, will be
credited to the account indicated above maintained at DTC. Similarly, unless
otherwise indicated under "Special Delivery Instructions," please deliver
Exchange Capital Securities to the undersigned at the address shown below the
undersigned's signature.
BY TENDERING ORIGINAL CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (i) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE COMPANY OR THE TRUST WITHIN THE MEANING
OF RULE 405 UNDER THE SECURITIES ACT, (ii) ANY EXCHANGE CAPITAL SECURITIES TO BE
RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS
BUSINESS, (iii) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY
PERSON TO PARTICIPATE IN THE DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF EXCHANGE CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER AND
(iv) IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED
IN, AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH EXCHANGE CAPITAL SECURITIES. BY TENDERING ORIGINAL
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF
TRANSMITTAL, A HOLDER OF ORIGINAL CAPITAL SECURITIES WHICH IS A BROKER-DEALER
REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY
THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE
COMMISSION TO THIRD PARTIES, THAT (a) SUCH ORIGINAL CAPITAL SECURITIES HELD BY
THE BROKER-DEALER ARE HELD ONLY AS A NOMINEE OR (b) SUCH ORIGINAL CAPITAL
SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT
OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER THE
PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH
EXCHANGE CAPITAL SECURITIES (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY
DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE DEEMED TO ADMIT THAT IT
IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
THE UNDERSIGNED ACKNOWLEDGES THAT THIS EXCHANGE OFFER IS BEING MADE
BY THE COMPANY AND THE TRUST BASED UPON THE COMPANY'S AND TRUST'S UNDERSTANDING
OF AN INTERPRETATION BY THE STAFF OF THE SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION") AS SET FORTH IN NO-ACTION LETTERS ISSUED TO THIRD PARTIES, THAT
THE EXCHANGE CAPITAL SECURITIES ISSUED IN EXCHANGE FOR ORIGINAL CAPITAL
SECURITIES BY HOLDERS THEREOF (OTHER THAN TO HOLDERS THAT ARE "AFFILIATES" OF
THE COMPANY OR THE TRUST WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES
ACT), MAY BE SO ISSUED WITHOUT COMPLIANCE WITH THE REGISTRATION AND PROSPECTUS
DELIVERY PROVISIONS OF THE SECURITIES ACT, PROVIDED THAT: (i) SUCH HOLDERS ARE
NOT AFFILIATES OF THE COMPANY OR THE TRUST WITHIN THE MEANING OF RULE 405 UNDER
THE SECURITIES ACT; (ii) SUCH EXCHANGE CAPITAL SECURITIES ARE ACQUIRED IN THE
ORDINARY COURSE OF SUCH HOLDERS' BUSINESS; AND (iii) SUCH HOLDERS ARE NOT
ENGAGED IN, AND DO NOT INTEND TO ENGAGE IN, A DISTRIBUTION OF SUCH EXCHANGE
CAPITAL SECURITIES AND HAVE NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO
PARTICIPATE IN THE DISTRIBUTION OF SUCH EXCHANGE CAPITAL SECURITIES. HOWEVER,
THE STAFF OF THE COMMISSION HAS NOT CONSIDERED THE EXCHANGE OFFER IN THE CONTEXT
OF A NO-ACTION LETTER AND THERE CAN BE NO ASSURANCE THAT THE STAFF OF THE
COMMISSION WOULD MAKE A SIMILAR DETERMINATION WITH RESPECT TO THE EXCHANGE OFFER
AS IN OTHER CIRCUMSTANCES. IF A HOLDER OF ORIGINAL CAPITAL SECURITIES IS AN
AFFILIATE OF THE COMPANY, OR IS ENGAGED IN OR INTENDS TO ENGAGE IN A
DISTRIBUTION OF THE EXCHANGE CAPITAL SECURITIES OR HAS ANY ARRANGEMENT OR
UNDERSTANDING WITH RESPECT TO THE DISTRIBUTION OF THE EXCHANGE CAPITAL
SECURITIES TO BE ACQUIRED PURSUANT TO THE EXCHANGE OFFER, SUCH HOLDER COULD NOT
RELY ON THE APPLICABLE INTERPRETATIONS OF THE STAFF OF THE COMMISSION AND MUST
COMPLY WITH THE REGISTRATION AND
-5-
<PAGE> 6
PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY
SECONDARY RESALE TRANSACTION.
THE COMPANY AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS
OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED, FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING BROKER-DEALER
(AS DEFINED BELOW) IN CONNECTION WITH RESALES OF EXCHANGE CAPITAL SECURITIES
RECEIVED IN EXCHANGE FOR ORIGINAL CAPITAL SECURITIES, WHERE SUCH ORIGINAL
CAPITAL SECURITIES WERE ACQUIRED BY SUCH PARTICIPATING BROKER-DEALER FOR ITS OWN
ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, FOR
A PERIOD ENDING 90 DAYS AFTER THE EXPIRATION DATE (SUBJECT TO EXTENSION UNDER
CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN
ALL SUCH EXCHANGE CAPITAL SECURITIES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING
BROKER-DEALER. IN THAT REGARD, EACH BROKER-DEALER WHO ACQUIRED ORIGINAL CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AND AS A RESULT OF MARKET-MAKING OR OTHER TRADING
ACTIVITIES (A "PARTICIPATING BROKER-DEALER"), BY TENDERING SUCH ORIGINAL CAPITAL
SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL, AGREES THAT, UPON RECEIPT
OF NOTICE FROM THE COMPANY OR THE TRUST OF THE OCCURRENCE OF ANY EVENT OR THE
DISCOVERY OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY
REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE
REGISTRATION RIGHTS AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE
SALE OF EXCHANGE CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL THE COMPANY
AND THE TRUST HAVE AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH
MISSTATEMENT OR OMISSION AND HAS FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED
PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR THE COMPANY OR THE TRUST HAS
GIVEN NOTICE THAT THE SALE OF EXCHANGE CAPITAL SECURITIES MAY BE RESUMED, AS THE
CASE MAY BE. IF THE COMPANY OR THE TRUST GIVES SUCH NOTICE TO SUSPEND THE SALE
OF THE EXCHANGE CAPITAL SECURITIES, IT SHALL EXTEND THE 90-DAY PERIOD REFERRED
TO ABOVE DURING WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO USE THE
PROSPECTUS IN CONNECTION WITH THE RESALE OF EXCHANGE CAPITAL SECURITIES BY THE
NUMBER OF DAYS DURING THE PERIOD FROM AND INCLUDING THE DATE OF THE GIVING OF
SUCH NOTICE TO AND INCLUDING THE DATE WHEN PARTICIPATING BROKER-DEALERS SHALL
HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO
PERMIT RESALES OF THE EXCHANGE CAPITAL SECURITIES OR TO AND INCLUDING THE DATE
ON WHICH THE COMPANY OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF EXCHANGE
CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
As a result, a Participating Broker-Dealer who intends to use the
Prospectus in connection with re-sales of Exchange Capital Securities received
in exchange for Original Capital Securities pursuant to the Exchange Offer must
notify the Company and the Trust, or cause the Company and the Trust to be
notified, on or prior to the expiration date, that it is a Participating
Broker-Dealer. Such notice may be given in the space provided above and by
checking the box next thereto, or may be delivered to the Exchange Agent at the
address set forth in the Prospectus under "The Exchange Offer - Exchange Agent."
Holders of Original Capital Securities whose Original Capital
Securities are accepted for exchange will not receive accumulated Distributions
on such Original Capital Securities for any period from and after the last
Distribution Payment Date to which Distributions have been paid or duly provided
for on such Original Capital Securities prior to the original issue date of the
Exchange Capital Securities, and the undersigned waives the right to receive any
Distributions on such Original Capital Securities accumulated from and after
such Distribution Payment Date.
All authority herein conferred or agreed to be conferred in this
Letter of Transmittal shall survive the death or incapacity of the undersigned
and any obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
The undersigned, by completing the box entitled "Description of
Original Capital Securities" above and by signing this letter, will be deemed to
have tendered the Original Capital Securities as set forth in such box.
-6-
<PAGE> 7
HOLDER(S) SIGN HERE
(See Instructions 2, 5 and 6)
(Please Complete Substitute Form W-9 Below)
(Note: Signature(s) must be guaranteed if required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s)
on Certificate(s) for the Original Capital Securities hereby tendered or on a
security position listing, or by any person(s) authorized to become the
registered holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certificates and other information as may
be required by the Company, the Trust or the Exchange Agent to comply with the
restrictions on transfer applicable to the Original Capital Securities). If
signature is by an attorney-in-fact, executor, administrator, trustee, guardian,
officer of a corporation or another acting in a fiduciary capacity or
representative capacity, please set forth the signer's full title. See
Instruction 5.
- --------------------------------------------------------------------------------
(Signature(s) of Holder(s))
Date
--------------------------------, ----
Name(s)
------------------------------------------------------------------------
(Please Print)
Capacity (full title):
---------------------------------------------------------
Address
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code(s) and Telephone Number
----------------------------------------------
Tax Identification or Social Security Number(s)
---------------------------------
GUARANTEE OF SIGNATURE(S)
(See Instructions 2 and 5)
Authorized Signature
----------------------------------------------------------
Name
---------------------------------------------------------------------------
(Please Print)
Date
--------------------------------, ----
Capacity or Title
---------------------------------------------------------------
(Please Print)
Name of Firm
-------------------------------------------------------------------
Address
-----------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number
-------------------------------------------------
-7-
<PAGE> 8
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if Exchange Capital Securities and/or any
Original Capital Securities that are not tendered are to be issued in the name
of someone other than the registered holder of the Original Capital Securities
whose name(s) appear(s) above.
Issue:
[ ] Exchange Capital Securities to:
[ ] Original Capital Securities not tendered to:
Name
---------------------------------------------------------------------------
(Please Print)
Address
------------------------------------------------------------------------
(Include Zip Code)
Taxpayer Identification or Social Security No.
----------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if Exchange Capital Securities and/or any
Original Capital Securities that are not tendered are to be sent to someone
other than the registered holder of the Original Capital Securities whose
name(s) appear(s) above, or to the registered holder(s) at an address other than
that shown above.
Mail:
[ ] Exchange Capital Securities to:
[ ] Original Capital Securities not tendered to:
Name
---------------------------------------------------------------------------
(Please Print)
Address
------------------------------------------------------------------------
(Include Zip Code)
Taxpayer Identification or Social Security No.
---------------------------------
-8-
<PAGE> 9
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of Letter of Transmittal and Certificates; Guaranteed
Delivery Procedures. This Letter of Transmittal is to be completed either if (a)
tenders are to be made pursuant to the procedures for tender by book-entry
transfer set forth under "The Exchange Offer - Procedures for Tendering Original
Capital Securities" in the Prospectus and an Agent's Message is not delivered or
(b) Certificates are to be forwarded herewith. Timely confirmation of a
book-entry transfer of such Original Capital Securities into the Exchange
Agent's account at DTC, or Certificates as well as this Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at one of it addresses set
forth herein on or prior to the expiration date. Tenders by book-entry transfer
also may be made by delivering an Agent's Message in lieu of this Letter of
Transmittal. The term "book-entry confirmation" means a confirmation of
book-entry transfer of Original Capital Securities into the Exchange Agent's
account at DTC. The term "Agent's Message" means a message transmitted by DTC to
and received by the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment from
the tendering participant, which acknowledgment states that such participant has
received and agrees to be bound by this Letter of Transmittal (including the
representations contained herein) and that the Trust and the Company may enforce
this Letter of Transmittal against such participant. Original Capital Securities
may be tendered in whole or in part in the Liquidation Amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that, if any Original Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must be $100,000 (100 Capital Securities)
or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Original Capital Securities and (i)
who cannot complete the procedures for delivery by book-entry transfer on or
prior to the expiration date, (ii) who cannot deliver their Original Capital
Securities, this Letter of Transmittal and all other required documents to the
Exchange Agent on or prior to the expiration date or (iii) whose Original
Capital Securities are not immediately available, may tender their Original
Capital Securities by properly completing and duly executing a Notice of
Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth
under "The Exchange Offer - Procedures for Tendering Original Capital
Securities" in the Prospectus. Pursuant to such procedures: (a) such tender must
be made by or through an Eligible Institution (as defined below); (b) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in the
form made available by the Company, must be received by the Exchange Agent on or
prior to the expiration date; and (c) the Certificates (or a book-entry
confirmation (as defined above and in the Prospectus)) representing all tendered
Original Capital Securities, in proper form for transfer, together with a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent within three New
York Stock Exchange trading days after the date of execution of such Notice of
Guaranteed Delivery, all as provided in "The Exchange Offer - Procedures for
Tendering Original Capital Securities" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice. For
Original Capital Securities to be properly tendered pursuant to the guaranteed
delivery procedure, the Exchange Agent must receive a Notice of Guaranteed
Delivery on or prior to the expiration date. As used herein and in the
Prospectus, "Eligible Institution" means a firm or other entity identified in
Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein): (i) a bank; (ii) a broker,
dealer, municipal securities broker or dealer or government securities broker or
dealer; (iii) a credit union; (iv) a national securities exchange, registered
securities association or clearing agency; or (v) a savings association that is
a participant in a Securities Transfer Association.
-9-
<PAGE> 10
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE
AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Neither the Company nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof), waives any right to receive any
notice of the acceptance of such tender.
2. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the
registered holder (which term, for purposes of this document,shall include any
participant in DTC whose name appears on a security position listing as the
owner of the Original Capital Securities) of Original Capital Securities
tendered herewith, unless such holder(s) has completed either the box entitled
"Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" above, or
(ii) such Original Capital Securities are tendered for
the account of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned
"Description of Original Capital Securities" is inadequate, the Certificate
number(s) and/or the Liquidation Amount of Original Capital Securities and any
other required information should be listed on a separate signed schedule which
is attached to this Letter of Transmittal.
4. Partial Tenders and Withdrawal Rights. Tenders of Original Capital
Securities will be accepted only in the aggregate Liquidation Amount of $100,000
(100 Capital Securities) and integral multiples of $1,000 in excess thereof,
provided that if any Original Capital Securities are tendered for exchange in
part, the untendered aggregate Liquidation Amount thereof must be $100,000 (100
Capital Securities) or any integral multiple of $1,000 in excess thereof. If
less than all the Original Capital Securities evidenced by any Certificate
submitted are to be tendered, fill in the Liquidation Amount of Original Capital
Securities which are to be tendered in the box entitled "Liquidation Amount of
Original Capital Securities Tendered (if less than all are tendered)." In such
case, a new Certificate(s) for the remainder of the Original Capital Securities
that were evidenced by your old Certificate(s) will be sent to the holder of the
Original Capital Securities, promptly after the expiration date, unless the
appropriate boxes on this Letter of Transmittal are completed. All Original
Capital Securities represented by Certificates delivered to the Exchange Agent
will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Original Capital
Securities may be withdrawn at any time on or prior to the expiration date. In
order for a notice of withdrawal to be effective on or prior to that time, a
written or facsimile transmission of such notice of withdrawal must be received
by the Exchange Agent at one of its addresses set forth above or in the
Prospectus on or prior to the expiration date. Any such notice of withdrawal
must specify the name of the person who tendered the Original Capital Securities
to be withdrawn, the aggregate Liquidation Amount of Original Capital Securities
to be withdrawn, and (if Certificates for Original Capital Securities have been
tendered) the name of the registered holder of the Original Capital Securities
as set forth on the Certificate for the Original Capital Securities, if
different from that of the person who tendered such Original Capital Securities.
If Certificates for the Original Capital Securities have been delivered or
otherwise identified to the Exchange Agent, then
-10-
<PAGE> 11
prior to the physical release of such Certificates for the Original Capital
Securities, the tendering holder must submit the certificate numbers shown on
the particular Certificates for the Original Capital Securities to be withdrawn
and the signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Original Capital Securities tendered for the
account of an Eligible Institution. If Original Capital Securities have been
tendered pursuant to the procedures for book-entry transfer set forth under "The
Exchange Offer - Procedures for Tendering Original Capital Securities" in the
Prospectus, the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawal of Original Capital
Securities, in which case a notice of withdrawal will be effective if delivered
to the Exchange Agent by written or facsimile transmission on or prior to the
expiration date. Withdrawals of tenders of Original Capital Securities may not
be rescinded. Original Capital Securities properly withdrawn will not be deemed
tendered for purposes of the Exchange Offer, but may be retendered at any
subsequent time on or prior to the expiration date by following any of the
procedures described in the Prospectus under "The Exchange Offer - Procedures
for Tendering Original Capital Securities."
All questions as to the validity, form and eligibility (including
time of receipt) of such withdrawal notices will be determined by the Company
and the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. None of the Company, the Trust, any affiliates or
assigns of the Company and the Trust, the Exchange Agent nor any other person
shall be under any duty to give any notification of any irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Original Capital Securities which have been tendered but which
are withdrawn will be returned to the holder thereof without cost to such holder
promptly after withdrawal.
5. Signatures on Letter of Transmittal, Assignments and Endorsements.
If this Letter of Transmittal is signed by the registered holder(s) of the
Original Capital Securities tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
If any of the Original Capital Securities tendered hereby are owned
of record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If any tendered Original Capital Securities are registered in
different name(s) on several Certificates, it will be necessary to complete,
sign and submit as many separate Letters of Transmittal (or facsimiles thereof)
and there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to the Company and the Trust, in their sole discretion, of
such persons' authority to so act.
When this Letter of Transmittal is signed by the registered holder(s)
of the Original Capital Securities listed and transmitted hereby, no
endorsement(s) of Certificate(s) or separate bond power(s) are required unless
Exchange Capital Securities are to be issued in the name of a person other than
the registered holder(s). Signature(s) on such Certificate(s) or bond power(s)
must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Original Capital Securities listed, the Certificates
must be endorsed or accompanied by appropriate bond powers, signed exactly as
the name or names of the registered owner(s) appear(s) on the Certificates, and
also must be accompanied by such opinions of counsel, certifications and other
information as the Company, the Trust or the Exchange Agent may require in
accordance with the restrictions on transfer applicable to the Original Capital
Securities. Signatures on such Certificates or bond powers must be guaranteed by
an Eligible Institution.
6. Special Issuance and Delivery Instructions. If Exchange Capital
Securities are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if Exchange Capital
-11-
<PAGE> 12
Securities are to be sent to someone other than the signer of this Letter of
Transmittal or to an address other than that shown above, the appropriate boxes
on this Letter of Transmittal should be completed. Certificates for Original
Capital Securities not exchanged will be returned by mail or, if tendered by
book-entry transfer, by crediting the account indicated above maintained at DTC.
See Instruction 4.
7. Irregularities. The Company and the Trust will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Original Capital Securities, which determination shall be final and
binding on all parties. The Company and the Trust reserve the right, in their
sole and absolute discretion, to reject any and all tenders determined by either
of them not to be in proper form or the acceptance of which, or exchange for,
may, in the view of counsel to the Company and the Trust, be unlawful. The
Company and the Trust also reserve the absolute right, subject to applicable
law, to waive any of the conditions of the Exchange Offer set forth in the
Prospectus under "The Exchange Offer - Conditions to the Exchange Offer" or any
conditions or irregularity in any tender of Original Capital Securities of any
particular holder whether or not similar conditions or irregularities are waived
in the case of other holders. The Company's and the Trust's interpretation of
the terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and binding. No tender of
Original Capital Securities will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived. None of
the Company, the Trust, any affiliates or assigns of the Company, the Trust, the
Exchange Agent, or any other person shall be under any duty to give notification
of any irregularities in tenders or incur any liability for failure to give such
notification.
8. Questions; Requests for Assistance and Additional Copies.
Questions and requests for assistance may be directed to the Exchange Agent at
its address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, this Letter of Transmittal and
the Notice of Guaranteed Delivery may be obtained from the Exchange Agent or
from your broker, dealer, commercial bank, trust company or other nominee.
9. 31% Backup Withholding; Substitute Form W-9. Under U.S. Federal
income tax law, a holder whose tendered Original Capital Securities are accepted
for exchange is required to provide the Exchange Agent with such holder's
correct taxpayer identification number ("TIN") on Substitute Form W-9 below. If
the Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the holder or other payee to a $50 penalty. In
addition, payments to such holders or other payees with respect to Original
Capital Securities exchanged pursuant to the Exchange Offer may be subject to
31% backup withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-9.
If the holder furnishes the Exchange Agent with its TIN within 60-days after the
date of the Substitute Form W-9, the amounts retained during the 60-day period
will be remitted to the holder and no further amounts shall be retained or
withheld from payments made to the holder thereafter. If, however, the holder
has not provided the Exchange Agent with its TIN within such 60-day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the registered
owner of the Original Capital Securities or of the last transferee appearing on
the transfers attached to, or endorsed on, the Original Capital Securities. If
the Original Capital Securities are registered in more than one name or are not
in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
-12-
<PAGE> 13
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax.
Rather, the U.S. Federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
10. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Original Capital Securities have been lost, destroyed or stolen,
the holder should promptly notify the Exchange Agent. The holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
11. Security Transfer Taxes. Holders who tender their Original
Capital Securities for exchange will not be obligated to pay any transfer taxes
in connection therewith. If, however, Exchange Capital Securities are to be
delivered to, or are to be issued in the name of, any person other than the
registered holder of the Original Capital Securities tendered, or if a transfer
tax is imposed for any reason other than the exchange of Original Capital
Securities in connection with the Exchange Offer, then the amount of any such
transfer tax (whether imposed on the registered holder or any other persons)
will be payable by the tendering holder. If satisfactory evidence of payment of
such taxes or exemption therefrom is not submitted with this Letter of
Transmittal, the amount of such transfer taxes will be billed directly to such
tendering holder.
Important: This Letter of Transmittal (or facsimile thereof) and all
other required documents must be received by the Exchange Agent on or prior to
the expiration date.
-13-
<PAGE> 14
TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(See Instruction 9)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
PAYER'S NAME: WILMINGTON TRUST COMPANY
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Social Security Number
---------------------------------
OR
SUBSTITUTE Part 1 - PLEASE PROVIDE YOUR TIN ON THE LINE AT ---------------------------------
Form W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Employer Identification Number
----------------------------------------------------- ------------------------------------
PART 2 - CERTIFICATION - UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
Department of the Treasury Internal (1) the number show on this form is
Revenue Service my correct taxpayer
identification number (or I am
waiting for a number to be
issued to me);
(2) I am not subject to backup
withholding either because (i)
I am exempt from backup
withholding, (ii) I have not
been notified by the Internal
Revenue Service ("IRS") that I
am subject to backup
withholding as a result of a
failure to report all interest
or dividends, or (iii) the IRS
has notified me that I am no
longer subject to backup
withholding, and
(3) any other information provided
on this form is true and
correct.
----------------------------------------------------- ------------------------------------
Payer's Request for CERTIFICATION INSTRUCTIONS - You must cross out item (2) PART 3-
Taxpayer Identification Number (TIN) in Part (2) above if you have been notified by the IRS AWAITING TIN [ ]
and Certification that you are subject to backup withholding because of
underreporting interest or dividends on your tax return
and you have not been notified by the IRS that you are no
longer subject to backup withholding.
SIGNATURE
-----------------------------------
DATE , 1999
--------------------------------------------
----------------------------------------------------------
Name (Please Print)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU
PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
-14-
<PAGE> 15
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration office, or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all payments made to me on account of the Exchange Capital Securities shall
be retained until I provide a taxpayer identification number to the Exchange
Agent and that, if I do not provide my taxpayer identification number within 60
days, such retained amounts shall be remitted to the Internal Revenue Service as
backup withholding and 31% of all reportable payments made to me thereafter will
be withheld and remitted to the Internal Revenue Service until I provide a
taxpayer identification number.
Signature Date
------------------------------------ -------------------------
Name (Please Print)
--------------------------
-15-
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
SERIES A FLOATING RATE CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
CNBF CAPITAL TRUST I
UNCONDITIONALLY GUARANTEED BY CNB FINANCIAL CORP.
This Notice of Guaranteed Delivery, or one substantially equivalent
to this form, must be used to accept the Exchange Offer (as defined below) if
(i) the procedure for delivery by book-entry transfer cannot be completed on or
prior to the Expiration Date (as defined in the Prospectus referred to below),
(ii) certificates for the Trust's (as defined below) Series A Floating Rate
Capital Securities (the "Original Capital Securities") are not immediately
available or (iii) Original Capital Securities, the Letter of Transmittal and
all other required documents cannot be delivered to Wilmington Trust Company
(the "Exchange Agent") on or prior the Expiration Date. This Notice of
Guaranteed Delivery may be delivered by hand, overnight courier or mail, or
transmitted by facsimile transmission, to the Exchange Agent.See "The Exchange
Offer-Procedures for Tendering Original Capital Securities" in the Prospectus.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WILMINGTON TRUST COMPANY
<TABLE>
<CAPTION>
<S> <C>
By Registration or Certified Mail By Hand or Overnight Delivery
--------------------------------- -----------------------------
Wilmington Trust Company Wilmington Trust Company
1100 North Market Street 1105 North Market Street
Wilmington, DE 19890-0001 Wilmington, DE 19890-0001
Attn: Kristin F. Long Attn: Kristin F. Long
Trust Operations Trust Operations
</TABLE>
Confirm by
Telephone or for
Information call:
(302) 651-1562
Facsimile Transmissions:
(Eligible Institutions Only)
(302) 651-1079
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY
VIA A FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THEREFOR, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to CNBF Capital Trust I, a trust
created under the laws of Delaware (the "Trust"), upon the terms and subject to
the conditions set forth in the Prospectus dated , 1999 (as the same may be
amended or supplemented from time to time, the "Prospectus"), and the related
Letter of Transmittal (which together constitute the "Exchange Offer"), receipt
of which is hereby acknowledged, the aggregate liquidation amount of Original
Capital Securities set forth below pursuant to the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange
Offer-Procedures for Tendering Original Capital Securities."
<TABLE>
<S> <C>
Aggregate Liquidation Amount Tendered: Name(s) of Registered Holder(s):
$
-------------------------------------- --------------------------------------
Total Liquidation Amount
Certificate No(s). (if available): represented by Old Capital
Securities Certificate(s): $
- ---------------------------------------- ------
</TABLE>
If Original Capital Securities will be tendered by book-entry transfer, provide
the following information:
<TABLE>
<S> <C>
DTC Account Number: Date:
- -------------------------------------- --------------------------------------
</TABLE>
All authority herein conferred or agreed
to be conferred in this Notice of Guaranteed
Delivery shall survive the death, incapacity
or dissolution of the undersigned and any
obligation of the undersigned hereunder shall
be binding upon the heirs, executors,
administrators, personal representatives,
trustees in bankruptcy, legal representatives,
successors and assigns of the undersigned.
PLEASE SIGN HERE:
- -----------------------------------------------
- -----------------------------------------------
(Signature of Owner(s) or Authorized Signatory)
Date:
- -----------------------------------------------
Date:
- -----------------------------------------------
Area Code and Telephone Number(s):
- -----------------------------------------------
<PAGE> 3
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Original Capital Securities hereby tendered or on a
security position listing, or by any person(s) authorized to become the
registered holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certificates and other information as may
be required by CNB Financial Corp, the Trust or the Exchange Agent to comply
with the restrictions on transfer applicable to the Original Capital
Securities). If signature is by an attorney-in-fact, executor, administrator,
trustee, guardian, officer of a corporation or another acting in a fiduciary
capacity or representative capacity, please set forth the signer's full title.
Please print name(s) and address(es).
Names:
--------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Capacity (full title):
---------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Address:
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
<PAGE> 4
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a firm or other entity identified in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker or government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the Series A
Floating Rate Capital Securities ("Original Capital Securities") tendered hereby
in proper form or transfer of such Original Capital Securities to the Exchange
Agent's account at The Depository Trust Company ("DTC"), pursuant to the
procedures for book-entry transfer set forth in the Prospectus, in either case
together with one or more properly completed and duly executed Letter(s) of
Transmittal (or facsimile thereof) and any other required documents within three
business days after the date of execution of this Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of Transmittal
and the Original Capital Securities tendered hereby to the Exchange Agent within
the time period set forth above and that failure to do so could result in a
financial loss to the undersigned.
<TABLE>
<S> <C>
Name of Firm:
---------------------------------------- ----------------------------------------------------
(Authorized Signature)
Address: Title:
----------------------------------------------------
- ------------------------------------------------------ (Please type or print)
- ------------------------------------------------------
Zip Code
Name:
----------------------------------------------------
(Please type or print)
Area Code and Telephone Number: Date:
- ------------------------------------------------------ ----------------------------------------------------
</TABLE>
NOTE: DO NOT SEND ORIGINAL CAPITAL SECURITIES WITH THIS NOTICE OF
GURANTEED DELIVERY. ACTUAL SURRENDER OF ORIGINAL CAPITAL SECURITIES MUST BE
MADE PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY EXECUTED
LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
<PAGE> 1
EXHIBIT 99.3
EXCHANGE AGENCY AGREEMENT
[date]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Re: CNBF Capital Trust I
Ladies and Gentlemen:
CNB Financial Corp., a New York corporation, as Depositor (the "Company"),
and CNBF Capital Trust I, a Delaware business trust (the "Trust"), hereby
appoint Wilmington Trust Company ("Wilmington Trust") to act as exchange agent
(the "Exchange Agent") in connection with an exchange offer by the Company and
the Trust to exchange up to $18,000,000 aggregate liquidation amount Series B
Floating Rate Capital Securities of the Trust ("Exchange Capital Securities")
for a smilar amount of outstanding Series A Floating Rate Capital Securities of
the Trust ("Original Capital Securities"). The terms and conditions of the
exchange offer are set forth in a Prospectus, dated________ , ___ (as the same
may be amended or supplemented from time to time, the "Prospectus"), and in the
related Letter of Transmittal, which together constitute the "Exchange Offer."
The registered holders of the Capital Securities are hereinafter referred to as
the "Holders." Capitalized terms used herein and not defined shall have the
respective meanings described thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the
Company, the Trust and Wilmington Trust contained herein and subject to the
terms and conditions hereof, the following sets forth the agreement among the
Company, the Trust and Wilmington Trust as Exchange Agent for the Exchange
Offer:
<PAGE> 2
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
1.1. The Company and the Trust hereby authorize Wilmington Trust to act as
Exchange Agent in connection with the Exchange Offer and Wilmington Trust agrees
to act as Exchange Agent in connection with the Exchange Offer. As Exchange
Agent, Wilmington Trust will perform those services as are outlined herein,
including, but not limited to, accepting tenders of Original Capital Securities,
and communicating generally regarding the Exchange Offer with brokers, dealers,
commercial banks, trust companies and other persons, including Holders of the
Original Capital Securities.
1.2. The Company and the Trust acknowledge and agree that Wilmington Trust
has been retained pursuant to this Agreement to act solely as Exchange Agent in
connection with the Exchange Offer, and in such capacity, Wilmington Trust shall
perform such duties in good faith as are outlined herein.
1.3. Exchange Agent will examine each of the Letters of Transmittal and
certificates for Original Capital Securities and any other documents delivered
or mailed to Exchange Agent by or for Holders of the Original Capital
Securities, and any book entry confirmations received by Exchange Agent with
respect to the Original Capital Securities, to ascertain whether: (i) the
Letters of Transmittal and any such other documents are duly executed and
properly completed in accordance with the instructions set forth therein and
that such book entry confirmations are in due and proper form and contain the
information required to be set forth therein, (ii) the Original Capital
Securities have otherwise been properly tendered, (iii) Original Capital
Securities tendered in part are tendered in Liquidation Amounts of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof and that
if any Original Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof is $100,000 (100 Capital Securities) or
any integral multiple of $1,000 in excess thereof, and (iv) Holders have
provided their correct Tax Identification Number or required certification.
Determination of all questions as to validity, form, eligibility and acceptance
for exchange of any Original Capital Securities shall be made by the Company and
the Trust, which determination shall be final and binding. In each case where
the Letters of Transmittal or any other documents have been improperly completed
or executed of where book-entry conformations are not in due and proper form or
omit certain information, or any of the certificates for Original Capital
Securities are not in proper form for transfer or some other irregularity in
connection with the tender or acceptance of the Original Capital Securities
exists, Exchange Agent will endeavor, upon request of the Company or the Trust,
to advise the tendering Holders of the irregularity and to take any other action
as the Company or the Trust may request to cause such irregularity to be
corrected. Notwithstanding the above, Exchange Agent shall not be under any duty
to give any notification of any irregularities in tenders or incur any liability
for failure to give any such notification.
-2-
<PAGE> 3
1.4. With the approval of the Trust and the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer or
any Assistant Treasurer of the Company, (such approval, if given orally, to be
confirmed in writing) or any other party designated by any such officer,
Exchange Agent is authorized to waive any irregularities in connection with any
tender of Original Capital Securities pursuant to the Exchange Offer.
1.5. Tenders of Original Capital Securities may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer" and Original Capital Securities shall be considered properly
tendered only when tendered in accordance with such procedures set forth
therein. Notwithstanding the provisions of this paragraph, Original Capital
Securities which the Trust and the President, any Senior Vice President, any
Executive Vice President, any Vice President or the Treasurer, any Assistant
Treasurer or any other designated officer of the Company, shall approve (such
approval, if given orally, to be confirmed in writing) as having been properly
tendered shall be considered to be properly tendered.
1.6. Exchange Agent shall advise the Company and the Trust with respect to
any Original Capital Securities received as soon as possible after 5:00 p.m.,
New York City time, on the Expiration Date and accept its instructions with
respect to disposition of such Original Capital Securities.
1.7. Exchange Agent shall deliver certificates for Original Capital
Securities tendered in part to the Exchange Agent for split-up and shall return
any untendered Original Capital Securities or Original Capital Securities which
have not been accepted by the Company and the Trust to the Holders promptly
after the expiration or termination of the Exchange Offer.
1.8. Upon acceptance by the Company and the Trust of any Original Capital
Securities duly tendered pursuant to the Exchange Offer (such acceptance if
given orally, to be confirmed in writing), the Company and the Trust will cause
Exchange Capital Securities in exchange therefor to be issued as promptly as
practicable and Exchange Agent will deliver such Exchange Capital Securities on
behalf of the Company and the Trust at the rate of $100,000 (100 Capital
Securities) Liquidation Amount of Exchange Capital Securities for each $100,000
Liquidation Amount of Original Capital Securities tendered as promptly as
practicable after acceptance by the Company and the Trust of the Original
Capital Securities for exchange and notice (such notice if given orally, to be
confirmed in writing) of such acceptance by the Company and the Trust. Unless
otherwise instructed by the Company or the Trust, Exchange Agent shall issue
Exchange Capital Securities only in denominations of $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof.
1.9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, Original Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date
in accordance with the terms of the Exchange Offer.
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1.10. Notice of any decision by the Company and the Trust not to exchange
any Original Capital Securities tendered shall be given by the Company and the
Trust either orally (if given orally, to be confirmed in writing) or in a
written notice to Exchange Agent.
1.11. If, pursuant to the Exchange Offer, the Company and the Trust do not
accept for exchange all or part of the Original Capital Securities tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Prospectus under the caption "The Exchange Offer -- Conditions to the
Exchange Offer" or otherwise, Exchange Agent shall, upon notice from the Company
and the Trust (such notice if given orally, to be confirmed in writing),
promptly after the expiration or termination of the Exchange Offer return such
certificates for unaccepted Original Capital Securities (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in Exchange Agent's possession,
to the persons who deposited such certificates.
1.12. Certificates for reissued Original Capital Securities, unaccepted
Original Capital Securities or Exchange Capital Securities shall be forwarded by
(a) first-class certified mail, return receipt requested under a blanket surety
bond obtained by Exchange Agent protecting Wilmington Trust, the Company and the
Trust from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (b) by registered mail insured by Exchange Agent separately
for the replacement value of each such certificate.
1.13. Exchange Agent is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to solicit
tenders. 1.14. Exchange Agent:
(1) shall have no duties or obligations other than those
specifically set forth herein or in the Prospectus or in the related
Letter of Transmittal;
(2) will make no representations and will have no responsibilities
as to the validity, value or genuineness of any of the certificates for
the Original Capital Securities deposited pursuant to the Exchange Offer,
and will not be required to and will make no representation as to the
validity, value or genuineness of the Exchange Offer;
(3) shall not be obligated to take any legal action hereunder which
might in Exchange Agent's reasonable judgment involve any expense or
liability, unless Exchange Agent's shall have been furnished with
indemnity satisfactory to it and additional fees for taking of such
action;
(4) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to Exchange Agent and
reasonably believed by Exchange Agent to be genuine and to have been
signed by the proper party or parties;
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<PAGE> 5
(5) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution
and validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which Exchange Agent
believes in good faith to be genuine and to have been signed or
represented by a proper person or persons acting in a fiduciary or
representative capacity;
(6) may rely on and shall be protected in acting upon written or
oral instructions from the President, any Senior Vice President, any
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer or any other designed officer of the Company;
(7) may consult with its own counsel with respect to any questions
relating to Wilmington Trust's duties and responsibilities and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by Exchange
Agent hereunder in good faith and in accordance with the advice of such
counsel; and
(8) shall not advise any person tendering Original Capital
Securities pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of its Original Capital
Securities or as to the market value, decline or appreciation in market
value of any Original Capital Securities that may or may not occur as a
result of the Exchange Offer or as to the market value of the Exchange
Capital Securities. Exchange Agent shall furnish copies of the Prospectus,
Letter of Transmittal and the Notice of Guaranteed Delivery or such other
forms as may be approved from time to time by the Company and the Trust,
to all persons requesting such documents from Exchange Agent. The Company
and the Trust will furnish you with copies of such documents at your
request.
1.15. Exchange Agent shall advise orally and promptly thereafter confirm
in writing to the Company and the Trust and such other person or persons as the
Company and the Trust may request, daily (and more frequently during the week
immediately preceding the Expiration Date and if otherwise reasonably requested)
up to and including the Expiration Date, the aggregate principal amount of
Original Capital Securities which have been tendered pursuant to the terms of
the Exchange Offer and the items received by Exchange Agent pursuant to the
Exchange Offer and this Agreement. In addition, Exchange Agent will also
provide, and cooperate in making available to the Company and the Trust, or any
such other person or persons upon request (such request if made orally, to be
confirmed in writing) made from time to time, such other information in its
possession as the Company and the Trust may reasonably request. Such cooperation
shall include, without limitation, the granting by Exchange Agent to the Company
and the Trust, and such person or persons as the Company and the Trust may
request, access to those persons on Exchange Agent's staff who are responsible
for receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Company and the Trust shall have received adequate
information in sufficient detail to enable the Company and the Trust to decide
whether to extend the Exchange Offer. Exchange Agent shall prepare a final list
of all persons whose tenders were accepted, the aggregate principal amount of
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<PAGE> 6
Original Capital Securities tendered, the aggregate principal amount of Original
Capital Securities accepted and deliver said list to the Company and the Trust.
1.16. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by Exchange Agent as to the date and the
time of receipt thereof and shall be preserved by Exchange Agent as to the date
and the time of receipt thereof and shall be preserved by Exchange Agent for a
period of time at least equal to the period of time Exchange Agent preserves
other records pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by Exchange Agent to the Company
and the Trust. Exchange Agent shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company or the Trust.
2. COMPENSATION.
$4,500 will be payable to Wilmington Trust in its capacity as Exchange
Agent; provided, that Wilmington Trust reserves the right to receive
reimbursement from the Company for any reasonable out-of-pocket expenses
incurred as Exchange Agent in performing the services described herein.
3. INDEMNIFICATION.
3.1. The Company and the Trust hereby agree to protect, defend, indemnify
and hold harmless Wilmington Trust against and from any and all costs, losses,
liabilities, taxes, expenses (including reasonable counsel fees and
disbursements) and claims imposed upon or asserted against Wilmington Trust on
account of any action taken or omitted to be taken by Wilmington Trust in
connection with its acceptance of or performance of its duties under this
Agreement and the documents related thereto as well as the reasonable costs and
expenses of defending itself against any claim or liability arising out of or
relating to this Agreement and the documents related thereto. This
indemnification shall survive the release, discharge, termination and/or
satisfaction of this Agreement. Anything in this Agreement to the contrary
notwithstanding, neither the Company nor the Trust shall be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of Wilmington Trust's bad faith, gross negligence or willful
misconduct. In no case shall the Company or the Trust be liable under this
indemnification agreement with respect to any claim against Wilmington Trust
until the Company and the Trust shall be notified by Wilmington Trust, by
letter, of the written assertion of a claim against Wilmington Trust or of any
other action commenced against Wilmington Trust, promptly after Wilmington Trust
shall have received any such written assertion or shall have been served with a
summons in connection therewith; provided, that, Wilmington Trust's failure to
give such notice shall not excuse the Company or the Trust from its obligations
hereunder. The Company and the Trust shall be entitled to participate at their
own expense in the defense of any such claim or other action, and, if the
Company and the Trust so elect, the Company or the Trust may assume the defense
of any pending or threatened action against Wilmington Trust in respect of which
indemnification may be sought hereunder with counsel reasonably acceptable to
Wilmington Trust; provided that the Company and the Trust shall not be entitled
to
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<PAGE> 7
assume the defense of any such action if the named parties to such action
include the Company or the Trust and Wilmington Trust and representation of the
parties by the same legal counsel would, in the reasonable opinion of counsel
for Wilmington Trust , be inappropriate due to actual or potential conflicting
interests between them. In the event that the Company or the Trust shall assume
the defense of any such suit with counsel reasonably acceptable to Wilmington
Trust, the Company or the Trust, as applicable, shall not be liable for the fees
and expenses incurred by Wilmington Trust of any counsel retained by Wilmington
Trust subsequent to such assumption of defense by the Company or the Trust.
3.2. The Company agrees to indemnify and hold harmless the Trust from and
against any and all losses, claims, damages and liabilities whatsoever, as due
from the Trust under this Section.
4. TAX INFORMATION.
The Company or the Trust shall arrange to comply with all requirements
under the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company and the Trust understand that they may be required,
in certain instances, to deduct 31% with respect to interest paid on the
Exchange Capital Securities and proceeds from the sale, exchange, redemption or
retirement of the Exchange Capital Securities from Holders who have not supplied
their correct Taxpayer Identification Number or required certification. Such
funds will be turned over to the Internal Revenue Service.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
6. NOTICES. Any communication or notice provided for hereunder shall be in
writing and shall be given (and shall be deemed to have been given upon receipt)
by delivery in person, telecopy, or overnight delivery or by registered or
certified mail (postage prepaid, return receipt requested) to the applicable
party at the addresses indicated below:
If to the Company:
CNB Financial Corp.
24 Church Street
Canajoharie, New York 13317
Attn: Peter J. Corso
Telecopier No.: (518) 673-3433
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<PAGE> 8
If to the Trust:
CNBF Capital Trust I
c/o CNB Financial Corp.
24 Church Street
Canajoharie, New York 13317
Attn: Administrator
Telecopier No.: (518) 673-3433
If to Wilmington Trust:
Corporate Trust Administration
Rodney Square North
1105 North Market Street
Wilmington, Delaware 19890-0001
Telecopier No.: (302) 651-8882
Attention: Bruce Bisson
With a copy to:
Richards, Layton & Finger, P.A.
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
Telecopier No.: (302) 658-6548
Attention: Eric A. Mazie, Esquire
or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and inure solely
to the benefit of each party hereto and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement. Without
limitation to the foregoing, the parties hereto expressly agree that no holder
of Capital Securities shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which when so executed shall be deemed an original, and all of such counterparts
shall together constitute one and the same agreement. If any term or other
provision of this Agreement or the application thereof is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the agreements contained herein is
not affected in any manner adverse to any party. Upon such determination that
any term or provision or the application thereof is invalid, illegal
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<PAGE> 9
or unenforceable, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the agreements contained
herein may be performed as originally contemplated to the fullest extent
possible.
9. CAPTIONS. The descriptive headings contained in this Agreement are
included for convenience or reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended or modified nor may any provision hereof be
waived except in writing signed by each party to be bound thereby.
11. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
90th day following the expiration, withdrawal, or termination of the Exchange
Offer, (b) the close of business on the date of actual receipt of written notice
by Wilmington Trust from the Company and the Trust stating that this Agreement
is terminated, (c) one year following the date of this Agreement, or (d) the
time and date on which this Agreement shall be terminated by mutual consent of
the parties hereto.
Kindly indicate your willingness to act as Exchange Agent and Wilmington
Trust's acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to the Company a copy of this Agreement so
signed, whereupon this Agreement and Wilmington Trust's acceptance shall
constitute a binding agreement among Wilmington Trust, the Company and the
Trust.
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<PAGE> 10
Very truly yours,
[NAME]
By:
----------------------------
Name:
Title:
[NAME]
By:
----------------------------
Name:
Title:
Accepted and agreed to as of the
date first written above:
WILMINGTON TRUST COMPANY,
as Exchange Agent
By:
---------------------------------
Name:
Title:
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