<PAGE>
As filed with the Securities and Exchange Commission on February 24, 2000
Registration No. 333-30192
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
INTERWEST BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
WASHINGTON 6711 91-1691216
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER IDENTIFICATION NO.)
275 SE PIONEER WAY
OAK HARBOR, WASHINGTON 98277
(360) 679-4181
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------
Stephen M. Walden
President and Chief Executive Officer
275 SE Pioneer Way
Oak Harbor, Washington 98277
(360) 679-4181
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-----------
Copies of communications to:
Stephen M. Klein
Carmen L. Smith
Graham & Dunn PC
1420 Fifth Avenue, 33rd Floor
Seattle, Washington 98101
-----------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO
THE PUBLIC: As soon as practicable after the effective date of this
Registration Statement.
If 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 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. / /___________
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================== ======================= ========================== ====================== ====================
Title of Each Proposed Maximum Proposed Maximum Amount of
Class of Securities Amount Being Offering Price Aggregate Registration
Being Registered Registered Per Note(1) Offering Price(1) Fee(1)
=============================== ======================= ========================== ====================== ====================
<S> <C> <C> <C> <C>
9.875% Capital Securities
Series B of InterWest Capital
Trust I $40,000,000 100% $40,000,000 $10,560.00 (2)
- ------------------------------- ----------------------- -------------------------- ---------------------- --------------------
InterWest Bancorp, Inc.
Guarantee with respect to
9.875% Capital Securities,
Series B N/A N/A N/A N/A
- ------------------------------- ----------------------- -------------------------- ---------------------- --------------------
9.875% Junior Subordinated
Deferrable Interest
Debentures due November 15,
2029, Series B of InterWest
Bancorp, Inc. $41,238,000 100% $41,238,000 $10,886.83
=============================== ======================= ========================== ====================== ====================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Previously paid.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRATION
FILES A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT TILLS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a)
OF THE 1933 ACT, OR UNTIL THIS REGISTRATION STATEMENT BECOMES EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(e), MAY DETERMINE.
<PAGE>
<PAGE>
PROSPECTUS
INTERWEST CAPITAL TRUST I
OFFER TO EXCHANGE
9.875% CAPITAL SECURITIES, SERIES B
FOR ANY AND ALL OUTSTANDING
9.875% CAPITAL SECURITIES, SERIES A
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT DESCRIBED IN THIS
PROSPECTUS, BY
INTERWEST BANCORP, INC.
------------------------------------
InterWest Capital Trust I, a Delaware statutory business
trust, is offering to exchange up to $40,000,000 aggregate liquidation amount
of its 9.875% Capital Securities, Series B for a similar amount of its
outstanding 9.875% Capital Securities, Series A. The Series B capital
securities are registered under the Securities Act of 1933. There is
currently $40,000,000 aggregate liquidation amount of the Series A capital
securities outstanding.
As part of this exchange offer, InterWest Bancorp, Inc. is also
offering to exchange its guarantee of InterWest Capital Trust I's obligations
under the Series A capital securities for a similar guarantee of InterWest
Capital Trust I's obligations under the Series B capital securities, as
described in this Prospectus as the Series B guarantee. Also as part of this
exchange offer, InterWest Bancorp, Inc. is offering to exchange up to
$41,238,000 of its 9.875% Junior Subordinated Deferrable Interest Debentures,
Series B for a similar amount of its 9.875% Junior Subordinated Deferrable
Interest Debentures, Series A. The Series B guarantee and the Series B
debentures are also registered under the Securities Act.
The terms of the Series B capital securities, the Series B
debentures and the Series B guarantee are the same as the terms of the Series
A capital securities, the Series A debentures and the Series A guarantee
except that:
- each of the Series B securities are registered under the
Securities Act and do not have the same restrictions on
transfer as the Series A capital securities;
- the distribution rate on the Series B capital securities will
not have the potential to increase; and
- the Series B debentures will not be entitled to any liquidated
damages.
This Prospectus and a transmittal letter describing the procedures
for exchanging Series A securities for the Series B securities are first
being mailed to all of the holders of the Series A securities on or about
February 28, 2000.
YOU SHOULD CAREFULLY CONSIDER THE "RISK FACTORS" BEGINNING ON PAGE
9 BEFORE DECIDING WHETHER TO EXCHANGE YOUR ORIGINAL CAPITAL SECURITIES FOR
NEW CAPITAL SECURITIES.
THESE SECURITIES ARE NOT DEPOSITS OR ACCOUNTS AND ARE NOT INSURED BY
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY.
<PAGE>
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED THESE SECURITIES OR
DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. IT IS ILLEGAL FOR
ANYONE TO TELL YOU OTHERWISE.
----------------------------------
THE DATE OF THIS PROSPECTUS IS February 23, 2000.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We have filed a Registration Statement on Form S-4 under the Securities
Act of 1933, as amended, to register with the Securities and Exchange Commission
the Series B capital securities to be issued in the exchange offer. This
Prospectus is part of that Registration Statement. As allowed by Securities and
Exchange Commission rules, this Prospectus does not contain all of the
information that you can find in the Registration Statement or the exhibits to
the Registration Statement.
In addition, we are required to file annual, quarterly and current
reports, proxy statements, and other information with the Securities and
Exchange Commission. You may read and copy the Registration Statement and its
exhibits as well as any reports, statements, or other information that the
combined corporation files, at the Securities and Exchange Commission's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the Securities and Exchange Commission at 1-800-SEC-0330 for further information
on the operation of the Public Reference Room. You can request copies of the
filed documents, upon payment of a duplicating fee, by writing to the Public
Reference Section of the Securities and Exchange Commission, 450 Fifth Street,
Room 1024, Washington, D.C. 20549. Our Securities and Exchange Commission
filings are also available to the public on the Securities and Exchange
Commission Internet site (HTTP://WWW.SEC.GOV). We do not expect that the Trust
will file reports, proxy statements and other information under the Exchange Act
with the Securities and Exchange Commission.
Our common stock is traded on the Nasdaq National Market under the
symbol "IWBK." You may inspect the reports, proxy statements and other
information concerning us at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington D.C. 20006.
The following documents that we have filed with the Securities and
Exchange Commission are incorporated into this Prospectus by reference:
- InterWest Bancorp's Annual Report on Form 10-K for the year
ended September 30, 1999.
- InterWest Bancorp's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1999.
- InterWest Bancorp's Current Reports on Form 8-K filed January
27, 2000 and February 10, 2000.
All documents subsequently filed by InterWest Bancorp pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to termination of the exchange offer described in this
Prospectus shall be deemed to be incorporated by reference into this
Prospectus and to be a part of this Prospectus from the date of filing of
such document. Any statement contained in this Prospectus or in a document
incorporated or deemed to be incorporated by reference in
<PAGE>
this Prospectus shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained in this Prospectus
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference in this Prospectus modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
You may obtain a copy of our filings with the Commission at no cost, by
writing or telephoning us at the following address: InterWest Bancorp, Inc.,
Attention: Corporate Secretary, 275 SE Pioneer Way, Oak Harbor, WA 98277,
telephone number (360) 679-4181
When we refer to this Prospectus, we mean not only this Prospectus but
also any documents which are incorporated or deemed to be incorporated in this
Prospectus by reference. You should rely only on the information incorporated by
reference or provided in this Prospectus or any supplement. We have not
authorized anyone else to provide you with additional or different information.
This Prospectus is used to offer and sell the capital securities referred to in
this Prospectus, and only under circumstances and in jurisdictions where it is
lawful to do so. The information contained in this Prospectus is current only as
of the date of this Prospectus.
1
<PAGE>
SUMMARY
THIS SUMMARY PROVIDES AN OVERVIEW OF SELECTED INFORMATION CONTAINED
ELSEWHERE IN THIS PROSPECTUS AND DOES NOT CONTAIN ALL THE INFORMATION YOU
SHOULD CONSIDER. THEREFORE, YOU SHOULD ALSO READ THE MORE DETAILED
INFORMATION APPEARING ELSEWHERE IN THIS PROSPECTUS.
INTERWEST BANCORP, INC.
InterWest Bancorp is a bank holding company incorporated in the
State of Washington and regulated by the Federal Reserve Board. We are
headquartered in Oak Harbor, Washington. As of December 31, 1999, we
conducted our business through four wholly-owned bank subsidiaries:
- InterWest Bank, a Washington State-chartered savings bank with
assets of $2.2 billion as of December 31, 1999;
- Pacific Northwest Bank, a Washington State-chartered bank with
assets of $426.7 million as of December 31, 1999;
- Kittitas Valley Bank, N.A., a national banking association
with assets of $48.2 million as of December 31, 1999; and
- National Bank of Tukwila, a national banking association, with
assets of $48.2 million as of December 31, 1999.
We merged Kittitas Valley Bank, N.A. into Pacific Northwest Bank on
January 3, 2000.
We conduct our business through the 55 branch offices of our banking
subsidiaries, located in communities throughout western and central
Washington. At December 31, 1999, together with our subsidiaries, we had
consolidated assets of $2.8 billion, total loans of $1.7 billion, total
deposits of $1.6 billion and shareholders' equity of approximately $171.7
million. Our principal executive offices are located at 275 S.E. Pioneer Way,
Oak Harbor, Washington 98277 and our telephone number is (360) 679-4181.
For more information, see "- Summary Selected Consolidated Financial
Data," "- Recent Developments" and "InterWest Bancorp, Inc." Additional
information concerning InterWest Bancorp is included in the documents
incorporated by reference in this Prospectus. See "Incorporation of Certain
Documents by Reference."
INTERWEST CAPITAL TRUST I
InterWest Capital Trust I is a statutory business trust created
under Delaware law upon the filing of a certificate of trust with the
Delaware Secretary of State. The Trust's business and affairs are conducted
by the property trustee, the Delaware trustee and the three individual
administrative trustees, who are officers of InterWest Bancorp. The Trust
exists for the exclusive purposes of:
- issuing and selling the capital securities;
- using the proceeds from the sale of the capital securities and
the common securities to acquire the junior subordinated
debentures issued by InterWest Bancorp; and
- engaging in only those other activities necessary, advisable
or incidental to the above.
Accordingly, the junior subordinated debentures are the sole assets
of the Trust, and payments under the junior subordinated debentures are the
sole revenues of the Trust.
InterWest Bancorp owns all of the common securities of the Trust.
2
<PAGE>
THE EXCHANGE OFFER
WE ARE OFFERING TO EXCHANGE SERIES B CAPITAL SECURITIES FOR AN EQUAL AMOUNT
OF YOUR SERIES A CAPITAL SECURITIES.
We are offering to exchange up to $40,000,000 aggregate liquidation
amount of Series B capital securities for an equal aggregate liquidation
amount of Series A capital securities. You may exchange all of your Series A
capital securities, or less than all of them provided that they 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 Series A capital securities.
See "The Exchange Offer" for a description of the procedures for tendering
your Series A capital securities.
THE EXCHANGE OFFER EXPIRES ON MARCH 31, 2000.
The exchange offer will expire at 5:00 p.m., New York City time, on
March 31, 2000, unless we extend it. See "The Exchange Offer - Expiration
Date; Extension; Amendments."
THERE ARE 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 Series A capital securities. See "Exchange
Offer - Conditions to the Exchange Offer."
WE MAY MAKE CHANGES IN, OR IMPOSE REQUIREMENTS ON, THE EXCHANGE OFFER.
We reserve the right at any time and from time to time:
- to delay accepting the Series A capital securities for
exchange;
- to end the exchange offer if specified conditions are not
satisfied;
- to extend the exchange offer and keep the Series A capital
securities tendered pursuant to the exchange offer, subject to
your right to withdraw your tendered Series A capital
securities; or
- to waive any condition or otherwise change the terms of the
exchange offer in any way.
See "The Exchange Offer - Terms of the Exchange Offer."
If you wish to exchange your Series A capital securities for Series
B capital securities, you will be required to represent that:
- you are not an Affiliate of either InterWest Bancorp or
InterWest Capital Trust I;
- you are acquiring Series B capital securities in the
ordinary course of your business;
- you have no arrangement or understanding with any person to
participate in a "distribution" within the meaning of the
Securities Act of such Series B capital securities; and
- you are not engaged in, and do not intend to engage in, a
"distribution" within the meaning of the Securities Act of
such Series B capital securities.
See "The Exchange Offer - Resale of Series B Capital Securities."
3
<PAGE>
THE TERMS OF THE SERIES B CAPITAL SECURITIES ARE NEARLY IDENTICAL TO THE
SERIES A CAPITAL SECURITIES.
We have registered up to $40,000,000 aggregate liquidation amount of
Series B capital securities under the Securities Act. The terms of the Series
B capital securities are the same as the terms of the Series A capital
securities, except that the Series B capital securities:
- have been registered under the Securities Act;
- will not be subject to certain transfer restrictions
applicable to the Series A capital securities; and
- will not provide for any increase in the distribution rate.
See "Description of Series B Capital Securities."
YOU MAY WITHDRAW YOUR TENDER OF SERIES A CAPITAL SECURITIES AT ANY TIME
BEFORE THE EXPIRATION DATE.
You may withdraw your tender of Series A capital securities at any
time before the expiration date by delivering written notice of such
withdrawal to the exchange agent as described below under the caption "The
Exchange Offer - Withdrawal Rights."
YOU MUST FOLLOW SPECIFIED PROCEDURES FOR TENDERING SERIES A 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 Series A capital
securities or in compliance with the specified procedures for guaranteed
delivery of Series A capital securities. Certain brokers, dealers, commercial
banks, trust companies and other nominees may also effect tenders by
book-entry transfer. If your Series A capital securities are registered in
the name of a broker, dealer, commercial bank, trust company or other
nominee, you should contact such person promptly if you wish to tender your
Series A capital securities pursuant to the exchange offer. See "The Exchange
Offer - Procedures for Tendering Series A Capital Securities."
YOU MAY SELL YOUR SERIES B CAPITAL SECURITIES WITHOUT RESTRICTION EXCEPT IN
CERTAIN CASES.
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. However, we have not sought 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 InterWest
Bancorp or InterWest Capital Trust I, we believe that you may sell or
otherwise transfer Series B capital securities issued to you pursuant to this
exchange offer in exchange for your Series A capital securities without
further compliance with the registration and Prospectus delivery requirements
of the Securities Act.
Note, however, that the Series B capital securities will be issued,
and may be transferred, only in blocks having a liquidation amount of not
less than $100,000 and multiples of $1,000 in excess of $100,000.
If you are a broker-dealer or an affiliate of either InterWest
Bancorp or InterWest Capital Trust I, then you shall be subject to further
restrictions described in "The Exchange Offer - Resale of Series B Capital
Securities."
4
<PAGE>
Subject to limitations described in "The Exchange Offer - Resale of
Series B Capital Securities," we have agreed that this Prospectus, as it may
be changed or supplemented from time to time, may be used by you if you are a
participating broker-dealer in connection with resales of such Series B
capital securities. See "Plan of Distribution."
THE PROPERTY TRUSTEE WILL ACT AS EXCHANGE AGENT.
The exchange agent with respect to the exchange offer is the
property trustee of the Trust, 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.
WE WILL NOT RECEIVE ANY PROCEEDS FROM THE EXCHANGE OFFER.
Neither InterWest Bancorp nor InterWest Capital Trust I will receive
any cash proceeds from the issuance of the Series B capital securities.
YOU SHOULD REVIEW THE INFORMATION ON FEDERAL INCOME TAX CONSEQUENCES AND
ERISA CONSIDERATIONS.
You should review carefully the information contained under the
caption "Certain Federal Income Tax Considerations" and "ERISA
Considerations" before tendering your Series A capital securities in the
exchange offer.
INTERWEST BANCORP WILL GUARANTEE PAYMENTS ON THE SERIES B CAPITAL SECURITIES.
We will, on a subordinated basis, fully, irrevocably and
unconditionally guarantee:
- payment of distributions on the capital securities;
- payments on liquidation of the Trust; and
- payments on maturity or earlier redemption of the capital
securities.
If we do not make a payment on the junior subordinated debentures,
the Trust will not have sufficient funds to make payments on the capital
securities. Our guarantee does not assure the payment of distributions when
the Trust does not have sufficient funds to pay the distributions. Our
obligations under the guarantee are unsecured and are subordinated and junior
to the payment of our senior and subordinated debt and will be effectively
subordinated to all of the existing and future liabilities and obligations of
our subsidiaries.
THERE IS NO MARKET FOR THE SERIES B CAPITAL SECURITIES.
The Series B 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 Series B capital securities. We do not
intend to seek a listing of the capital securities or, if issued, the
exchange capital securities, on any national securities exchange or on the
Nasdaq Stock Market. For more information, you should read "Plan of
Distribution."
THE SERIES B CAPITAL SECURITIES HAVE BEEN RATED "BBB-".
The Series B capital securities have been rated "BBB-" by Thomson
Financial Bank Watch. If another rating agency were to rate the capital
securities, such rating agency may assign a rating different from the rating
described above. A security rating is not a recommendation to buy, sell or
hold securities and may be subject to revision or withdrawal at any time by
the assigning rating organization.
5
<PAGE>
SUMMARY SELECTED CONSOLIDATED FINANCIAL DATA
THE FOLLOWING SUMMARY INFORMATION PRESENTS SELECTED CONSOLIDATED
FINANCIAL DATA OF INTERWEST BANCORP AND OUR SUBSIDIARIES. CERTAIN FINANCIAL
DATA HAS BEEN DERIVED FROM OUR AUDITED CONSOLIDATED FINANCIAL STATEMENTS. THE
FOLLOWING INFORMATION IS ONLY A SUMMARY AND YOU SHOULD READ IT IN CONJUNCTION
WITH OUR CONSOLIDATED FINANCIAL STATEMENTS AND RELATED NOTES INCLUDED IN OUR
FORM 10-K FOR THE YEAR ENDED SEPTEMBER 30, 1999, WHICH ARE INCORPORATED IN
THIS PROSPECTUS BY REFERENCE.
<TABLE>
<CAPTION>
AS OF OR FOR THE AS OF OR FOR THE
THREE MONTHS ENDED YEAR ENDED
DECEMBER 31, SEPTEMBER 30,
------------------------- ------------------------------------------------------------------
1999 1998 1999 1998(1) 1997 1996(2) 1995
----------- ----------- ----------- ------------ ----------- ------------ --------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
Interest income $50,381 $45,076 $179,659 $180,279 $165,206 $143,827 $119,731
Interest expense 27,283 24,484 95,480 101,483 91,081 77,127 65,119
-------- -------- -- ------ --------- ---------- ---------- ----------
Net interest income before
provision for losses on loans 23,098 20,592 84,179 78,796 74,125 66,700 54,612
Provision for losses on loans 550 498 2,000 2,807 1,508 2,452 929
------ ------ ---------- ----------- ----------- ----------- ------------
Net interest income after provision
for losses on loans 22,548 20,094 82,179 75,989 72,617 64,248 53,683
Non-interest income 4,290 7,841 28,408 26,473 18,645 15,744 13,030
Non-interest expense 18,443 16,773 68,147 66,972 54,032 55,716 40,718
Income tax expense 2,933 3,794 14,585 12,848 12,681 7,785 8,721
----------- ----------- ------------ ----------- ---------- ------------ ------------
Net income $5,462 $7,368 $27,855 $22,642 $24,549 $16,491 $17,274
====== ====== ======= ======= ======= ======= =======
Basic net income per share $0.34 $0.47 $1.78 $1.45 $1.58 $1.08 $1.13
Diluted net income per share 0.34 0.46 1.74 1.40 1.54 1.05 1.11
Cash dividends declared per share 0.14 0.14 0.56 0.50 0.33 0.29 0.19
STATEMENT OF FINANCIAL CONDITION
Total assets $2,782,568 $2,601,561 $2,579,539 $2,447,848 $2,402,928 $2,016,085 $1,723,780
Total loans 1,694,712 1,454,394 1,584,722 1,452,175 1,348,681 1,170,271 1,035,099
Deposits 1,598,190 1,540,090 1,578,949 1,564,825 1,468,460 1,389,402 1,260,946
Borrowings 997,259 856,735 817,910 682,390 755,968 466,693 321,932
Shareholders' equity 171,720 175,283 165,306 171,652 160,770 137,647 128,882
Book value per share 10.87 11.18 10.71 10.97 10.26 8.93 8.45
KEY OPERATING RATIOS
Return on average assets 0.81% 1.20% 1.12% 0.95% 1.15% 0.90% 1.10%
Return on average shareholders' equity 12.25% 16.89% 16.00% 13.58% 16.64% 12.13% 14.25%
Net interest margin 3.67% 3.58% 3.64% 3.52% 3.70% 3.85% 3.70%
Efficiency ratio 67.34% 58.99% 60.53% 63.62% 58.24% 67.58% 60.20%
ASSET QUALITY RATIOS
Non-performing assets to total assets (3) 0.55% 0.76% 0.56% 0.64% 0.52% 0.49% 0.41%
Non-performing loans to loans
receivable, net 0.65% 0.92% 0.70% 0.60% 0.41% 0.33% 0.28%
Allowance for losses on loans to
total loans receivable at the end of
the period 0.90% 0.99% 0.90% 0.96% 0.82% 0.88% 0.76%
Net charge-offs to average loans
outstanding during the period 0.07% 0.05% 0.08% 0.06% 0.05% 0.01% 0.03%
CAPITAL RATIOS
Average shareholders' equity to
average assets 6.61% 7.08% 7.02% 6.99% 6.89% 7.38% 7.73%
Total capital to risk weighted
assets (4) 12.39% 10.77% 10.90% 11.96% 13.64% 13.04% 13.54%
Tier 1 capital to total average
assets (4) 7.93% 6.79% 6.83% 6.61% 6.97% 6.51% 7.19%
Tier 1 capital to risk-weighted
assets (4) 11.56% 9.96% 10.07% 11.06% 12.75% 12.40% 12.88%
Dividend pay-out ratio 41.14% 30.06% 31.62% 33.98% 21.35% 26.97% 17.04%
</TABLE>
- --------------------
6
<PAGE>
(1) 1998 results include nonrecurring merger-related charges of $4.4 million
(net of tax) and a merger-related provision for losses on loans of $0.7
million (net of tax).
(2) 1996 results include nonrecurring Savings Association Insurance Fund
assessment of $3.6 million (net of tax), merger-related charges of $2.0
million (net of tax) and a merger-related provision for losses on loans
of $0.6 million (net of tax).
(3) Non-performing assets consist of non-performing loans (including
non-accrual loans and certain other delinquent loans) and real estate
held for sale, but do not include a $3.9 million land development
project.
(4) The capital ratios indicated as of September 30, 1996 and 1995 are as
previously reported for InterWest Bank and have not been restated to
reflect pooling-of-interest acquisitions completed in 1998 and 1996.
This significantly impacts the comparability of regulatory capital
ratios in fiscal years prior to 1997.
RECENT DEVELOPMENTS
We merged Kittitas Valley Bank, N.A. into Pacific Northwest Bank on
January 3, 2000.
On February 9, 2000, InterWest Bancorp and Liberty Bay Financial
Corporation announced the termination of a definitive agreement to merge that
was entered into on September 14, 1999. Liberty Bay's commercial banking
subsidiary, North Sound Bank, operates eight offices on the Olympic Peninsula
in Washington State. InterWest Bancorp's banking subsidiaries, InterWest
Bank and Pacific Northwest Bank, also presently operate eight offices on the
Olympic Peninsula. The decision to terminate the definitive agreement was
based primarily on regulatory approval issues that would require at least one
office to be divested of loans, deposits and facilities to another financial
institution in order for the acquisition to be approved. The restrictions
proposed for the approval of the acquisition were more onerous than
originally expected and would limit InterWest's ability to serve the Olympic
Peninsula market as planned when the definitive agreement was entered.
Costs incurred to date are not material and will be expensed during the
quarter ended March 31, 2000.
InterWest completed acquistions of four commercial banks during
fiscal year 1998 and one during the quarter ended December 31, 1999. However,
the efficiencies available from eliminating duplication of administrative and
operational functions have not been realized from the acquisitions.
InterWest has selected a data processing system and is planning for a
complete integration of various policies and procedures into a common
operating platform. This is part of an overall plan to merge multiple
charters that InterWest opeates under and to be recognized and identified as
one brand within its markets. The integration process has been delayed due to
the focus of resources on Year 2000 issues and the process of selecting a
common operating platform that best meets InterWest's future needs. The
selection process has been completed and it is anticipated that data and
systems conversions will commence during the second half of fiscal year 2000.
It is the current plan to have data and systems conversions completed and to
have the banking subsidiaries consolidated under one charter in calendar year
2001.
7
<PAGE>
FORWARD LOOKING STATEMENTS
Some of the information presented or incorporated by reference into
this Prospectus contains "forward-looking" statements within the meaning of
the Private Securities Litigation Reform Act of 1995. Sentences containing
words such as "may," "will," "expect," "anticipate," "believe," "estimate,"
"should," "projected" or "contemplates" or similar words may constitute
forward-looking statements. Although we believe that the expectations
expressed in these forward-looking statements are based on reasonable
assumptions within the bounds of our knowledge of our business and
operations, it is possible that actual results may differ materially from
these expectations. We have used these statements to describe our
expectations and estimates in various areas, including:
- changes in the economy of the markets in which we operate;
- interest-rate movements;
- timely development of technology enhancements for our products
and Year 2000 operating systems;
- the impact of competitive products, services and pricing; and
- legislative, regulatory and accounting changes affecting the
banking and financial services industry.
Our actual results could vary materially from the future results
covered in our forward-looking statements. Other factors, such as Year 2000
issues, interest rate trends and loan delinquency rates, which are addressed
in the documents incorporated by reference, as well as the general state of
the economy in Washington State and the United States as a whole, 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.
8
<PAGE>
USE OF PROCEEDS
Neither InterWest Bancorp nor InterWest Capital Trust I will receive
any cash proceeds from the issuance of the Series B capital securities. The
Series A capital securities surrendered in exchange for the Series B capital
securities will be retired and canceled. The Trust invested all of the
proceeds from the sale of its Series A capital securities and common
securities in the debentures. We currently are using, or intend to use, the
net proceeds from the sale of the debentures for general corporate purposes,
such as the repurchase of our common stock and capital contributions to our
banking subsidiaries.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust is treated as our
subsidiary, and, accordingly, the accounts of the Trust are included in our
consolidated financial statements. The capital securities are included with
borrowings and presented as a separate line item in our consolidated balance
sheet under the caption "Guaranteed Preferred Beneficial Interests in
Subordinated Debt," and appropriate disclosures about the capital securities,
the guarantee and the junior subordinated debentures will be included in the
notes to consolidated financial statements. For financial reporting purposes,
we will record distributions payable on the capital securities as an interest
expense in the consolidated statements of operations.
9
<PAGE>
CAPITALIZATION
The following table sets forth our consolidated capitalization at
December 31, 1999. You should read this table in conjunction with our
consolidated financial statements and notes, which are incorporated by
reference into this Prospectus.
<TABLE>
<CAPTION>
DECEMBER 31, 1999
-----------------
(IN THOUSANDS)
<S> <C>
Long-term borrowings
FHLB advances due beyond one year (1) $561,200
Term reverse repurchase agreements due beyond one year 73,000
Guaranteed preferred beneficial interests in
subordinated debt (2) 40,000
------
Total long-term borrowings $674,200
========
Common stock, no par or stated value; 30,000,000 shares
authorized, 15,800,377 outstanding (3) $ 33,297
Accumulated other comprehensive loss (4) (20,640)
Debt related to employee stock ownership plan (2,980)
Retained earnings 162,043
Total shareholders' equity $171,720
========
Total capitalization $845,920
========
</TABLE>
(1) Certain FHLB advances and term repurchase agreements contractually due
beyond one year have an option whereby the issuer can call the long
term borrowing due at anytime prior to the expiration of the option
date. The amounts of such advances and term repurchase agreements with
option dates that expire within one year are $435 million and $73
million, respectively.
(2) As described herein, the sole asset of the Trust, which is our
subsidiary, is the aggregate principal amount of the fixed rate junior
subordinated debentures, which will mature on November 15, 2029. We
will own all of the common securities issued by the Trust. See
"Description of Series B Securities - Description of Debentures."
(3) This amount includes shares reserved for issuance in connection with
completed acquisitions, but does not include shares held by our
Employee Stock Ownership Plan that have been pledged as security for
our guarantee of Employee Stock Ownership Plan debt.
(4) Includes only net unrealized loss on securities available for sale, net
of tax.
10
<PAGE>
REGULATORY CAPITAL
Under regulations adopted by the Federal Reserve Board, InterWest
Bancorp is required to maintain Tier 1 capital and total capital (Tier 1 plus
Tier 2 capital) of 4.0% and 8.0%, respectively, of our risk weighted assets,
and Tier 1 capital of 4.0% of our average total assets (calculated quarterly).
At December 31, 1999, our Tier 1 leverage capital, Tier 1 risk-based
capital and total capital amounted to $212.6 million (7.93% of average
adjusted total assets), $212.6 million (11.56% of risk weighted assets) and
$227.8 million (12.39% of risk weighted assets), respectively, exceeding all
our minimum regulatory requirements. For additional information of the
regulatory capital requirements applicable to us, see "Regulation and
Supervision."
The following tables set forth our regulatory capital and regulatory
capital ratios. See "Regulation and Supervision."
<TABLE>
<CAPTION>
RISK BASED
-------------------------------------------
TIER 1
LEVERAGE TIER 1 TOTAL
CAPITAL CAPITAL CAPITAL
-------- ------- -------
(Dollars in thousands)
<S> <C> <C> <C>
Shareholders' equity $171,720 $171,720 $171,720
Guaranteed preferred beneficial interests in subordinated debt (1) 40,000 40,000 40,000
Unrealized losses on securities available for sale 20,640 20,640 20,640
Non-allowable capital:
Intangible assets (19,756) (19,756) (19,756)
Supplemental capital:
Allowance for loan losses --- --- 15,183
Regulatory capital $212,604 $212,604 $227,787
======== ======== ========
</TABLE>
- -----------------------
(1) Under Federal Reserve Board regulations, the guaranteed preferred
beneficial interests in subordinated debt cannot represent more than
25% of Tier 1 capital.
<TABLE>
<CAPTION>
RISK BASED
-------------------------------------------
TIER 1
LEVERAGE TIER 1 TOTAL
CAPITAL CAPITAL CAPITAL
-------- ------- -------
(Dollars in thousands)
<S> <C> <C> <C>
Regulatory capital $212,604 $212,604 $227,787
7.93% 11.56% 12.39%
Regulatory requirement $107,212 $73,553 $147,106
4.00% 4.00% 8.00%
Excess above required ratio $105,392 $139,051 $80,681
3.93% 7.56% 4.39%
</TABLE>
The amount of average adjusted total assets for the Tier 1 leverage
ratio was approximately $2.7 billion. Risk-weighted assets used for the
risk-based capital ratios amounted to approximately $1.8 billion, assuming
the proceeds from the sale of the junior subordinated debentures are invested
in assets having a risk weighting of 100%.
11
<PAGE>
INTERWEST BANCORP, INC.
GENERAL
InterWest Bancorp is a bank holding company incorporated in the
state of Washington in 1994 and regulated by the Federal Reserve Board. Our
business consists primarily of holding 100% of the capital stock of InterWest
Bank, Pacific Northwest Bank and National Bank of Tukwila. As of December
31, 1999, InterWest Bancorp and its subsidiaries had consolidated total
assets of $2.8 billion, total loans of $1.7 billion, total deposits of $1.6
billion and shareholders' equity of $171.7 million.
Presently, we conduct our business through our subsidiaries' 55
full-service branch offices in western and central Washington State. These
offices are located in towns, small cities, suburbs and metropolitan markets.
Through our banking subsidiaries, we offer a wide range of financial services
to individuals and businesses. Our financial services include the banking
activities of accepting deposits from individuals and businesses and
originating residential loans, consumer loans and certain types of commercial
real estate loans, and commercial loans. We are committed to growth in
commercial banking and expansion in Washington State.
INTERWEST BANK. InterWest Bank is a Washington State-chartered
savings bank. InterWest Bank was organized in 1956 in the community of Oak
Harbor on Whidbey Island. On July 28, 1995, InterWest Bank completed a
reorganization, in which InterWest Bank became a wholly-owned subsidiary of
InterWest Bancorp, Inc., and the shareholders of InterWest Bank became
shareholders of InterWest Bancorp, Inc. InterWest Bank is a
community-oriented bank that provides a wide range of financial services for
individual and business customers. InterWest Bank is currently in the process
of transforming from a traditional thrift to a financial institution focused
on promoting commercial banking products and services while continuing to
serve its retail banking customers. InterWest Bank conducts its business
through 40 full-service branch offices located in the northwestern and
north-central parts of the state of Washington and one lending office located
in Everett, Washington. As of December 31, 1999, InterWest Bank had total
assets of $2.1 billion and loans receivable of $1.3 billion.
PACIFIC NORTHWEST BANK. Pacific Northwest Bank is a state-chartered
bank that we acquired on June 15, 1998. Since its acquisition, three other
banks, First National Bank of Port Orchard, Pioneer National Bank and
Kittitas Valley Bank, N.A., have been merged into Pacific Northwest Bank.
Pacific Northwest Bank primarily engages in commercial banking activities,
serving individuals and small- to medium-sized businesses. Pacific Northwest
Bank conducts its business through 14 full-service branch offices located in
the metropolitan Seattle area, the Kitsap Peninsula and south-central parts
of Washington State. As of December 31, 1999, Pacific Northwest Bank had
total assets of $424.5 million and loans receivable of $349.3 million.
In keeping with our consolidation strategy, we merged Kittitas
Valley Bank, N.A. into Pacific Northwest Bank on January 3, 2000. As of
December 31, 1999, Kittitas Valley Bank had total assets of $47.0 million
and loans receivable of $29.6 million.
NATIONAL BANK OF TUKWILA. National Bank of Tukwila is a national
bank that we acquired on October 1, 1999. National Bank of Tukwila offers a
full line of commercial banking services to individuals and small- to
medium-sized businesses, with a strong emphasis on deposit services and
commercial lending. National Bank of Tukwila conducts its business through a
single full-service office in south King County, Washington. As of December
31, 1999, National Bank of Tukwila had total assets of $48.2 million and
loans receivable of $38.7 million.
Financial and other information relating to InterWest Bancorp is set
forth in our 1999 Annual Report on 10-K and Quarterly Reports on Form 10-Q,
which are incorporated in this Prospectus by
12
<PAGE>
reference. You may obtain copies of these documents as described under
"Incorporation of Certain Documents by Reference."
OUR GROWTH STRATEGY
At September 30, 1995, InterWest Bank had assets of $1.3 billion and
had net income of $11.8 million for the fiscal year then ended and did
business through 31 branch offices. In 1995 we began to implement our
strategy to increase our emphasis on commercial banking and to become a
statewide institution. We believe our growth in earnings in recent years is,
in part, attributable to our strategy of increasing our commercial banking
business and expanding operations throughout Washington State. The
acquisition of Central Bancorporation in August of 1996 was a significant
step in the implementation of this strategy. We have completed the
acquisition of seven commercial banks since 1996, which has added commercial
banking assets of approximately $668 million, measured as of each acquisition
date. Additionally, we have opened four de novo branches in western
Washington during that time period as part of increasing our presence along
the Interstate 5 corridor. We believe that our growth strategy will allow us
to:
- achieve greater diversification of our markets and products;
- enhance shareholder value by more effectively leveraging our
equity capital; and
- more effectively position ourselves to take advantage of
acquisition opportunities in the rapidly changing financial
services industry.
We recognize that our growth will have to come primarily from
expansion into new markets. In recognition of these factors, our growth
strategy emphasizes:
- increasing commercial real estate and commercial lending ;
- acquiring commercial banks;
- de novo branching;
- providing non-deposit investment products; and
- improving technology to enhance services and realizing
operational efficiencies.
We intend to seek continued controlled growth of the organization
through selective acquisitions of banks. The objectives of such acquisitions
will be to:
- increase the opportunity for quality earning asset growth,
deposit generation and fee-based income opportunities;
- diversify the earning assets portfolio and core deposit base
through expansion into new geographic markets within
Washington State;
- have an adequate capital position after the acquisition;
- improve the potential profits from our combined operations
through economies of scale; and
- enhance shareholder value measured through increasing the
return on equity and/or increasing earnings per share.
REGULATION AND SUPERVISION
Almost all of our assets consist of our investment in InterWest
Bank, Pacific Northwest Bank and National Bank of Tukwila, our principal bank
subsidiaries. Thus, our ability to pay principal of, and interest on, the
junior subordinated debentures depends almost entirely on cash dividends we
receive from our bank subsidiaries.
Our bank subsidiaries may not pay dividends to us if, after paying
those dividends, they would fail to meet the required minimum levels under
risk-based capital guidelines and the minimum leverage
13
<PAGE>
ratio requirements. The subsidiaries must have the approval of federal bank
regulators if a dividend in any year would cause the total dividends for that
year to exceed certain regulatory minimums. At September 30, 1999,
approximately $49.3 million was available for the payment of dividends to us
by subsidiaries we owned at that date without regulatory approval. Payment of
dividends by a banking subsidiary may be restricted at any time at the
discretion of the appropriate regulator if it deems the payment to constitute
an unsafe and/or unsound banking practice or necessary to maintain adequate
capital.
Federal law and regulations limit the amount of dividends that
national banks may distribute. National Bank of Tukwila, a national banking
association, is limited to paying dividends equal to the bank's total net
income for the current year combined with the bank's retained net income for
the preceding two years, less any required transfers to surplus or a fund for
the retirement of any preferred stock. Any greater dividend must be approved
by the Office of the Comptroller of the Currency.
InterWest Bank and Pacific Northwest Bank, as Washington
State-chartered banks, are subject to state limitations on dividends.
Washington State law and regulations provide that state-chartered banks and
savings banks may, without the prior approval of the Washington Department of
Financial Institutions, pay dividends equal to the amount of their retained
earnings.
If we do not receive sufficient cash dividends from our bank
subsidiaries, it is unlikely that we will have sufficient funds to make
payments on the junior subordinated debentures. See "Description of Junior
Subordinated Debentures."
The U.S. Congress recently passed legislation intended to modernize
the financial services industry by establishing a comprehensive framework to
permit affiliations among commercial banks, insurance companies and other
financial service providers. The legislation is being forwarded to the
President for his approval. Generally, the legislation would:
- repeal the historical restrictions and eliminate many federal
and state barriers to affiliations among banks and securities
firms, insurance companies and other financial service
providers,
- provide a uniform framework for the activities of banks,
savings institutions and their holding companies,
- broaden the activities that may be conducted by national banks
and banking subsidiaries of bank holding companies,
- provide an enhanced framework for protecting the privacy of
consumers' information,
- adopt a number of provisions related to the capitalization,
membership, corporate governance and other measures designed
to modernize the Federal Home Loan Bank system,
- modify the laws governing the implementation of the Community
Reinvestment Act, and
- address a variety of other legal and regulatory issues
affecting both day-to-day operations and long-term activities
of financial institutions, including the functional regulation
of bank securities activities.
Bank holding companies would be permitted to engage in a wider
variety of financial activities than permitted under current law,
particularly with respect to insurance and securities activities. In
addition, in a change from current law, bank holding companies will be in a
position to be owned, controlled or acquired by any company engaged in
financially related activities.
14
<PAGE>
We do not believe that the proposed legislation, as publicly
reported, would have a material adverse effect on our operations in the near
term. However, to the extent the legislation permits banks, securities firms
and insurance companies to affiliate, the financial services industry may
experience further consolidation. This could result in a growing number of
larger financial institutions that offer a wider variety of financial
services that we currently offer and that can aggressively compete in the
markets we currently serve.
Other statutes and regulations that affect us and the subsidiaries
are summarized in "Item 1. Business - Supervision and Regulation" of our Annual
Report on Form 10-K for the fiscal year ended September 30, 1999, which is
incorporated into this Prospectus by reference.
INTERWEST CAPITAL TRUST I
The Trust is a statutory business trust created under Delaware law
upon the filing of a certificate of trust with the Delaware Secretary of
State. The Trust exists for the exclusive purposes of:
- issuing and selling the capital securities and the common
securities;
- using the proceeds from the sale of the capital securities and
the common securities to acquire the junior subordinated
debentures issued by us; and
- engaging in only those other activities necessary, advisable
or incidental thereto, including the exchange offer.
The junior subordinated debentures are the sole assets of the Trust,
and, accordingly, payments under the junior subordinated debentures are the
sole revenues of the Trust. We own all of the common securities of the Trust.
The common securities rank PARI PASSU, and payments will be made thereon pro
rata, with the capital securities, except that upon the occurrence and
continuance of an event of default under the trust agreement resulting from a
debenture event of default, our rights as holder of the common securities to
payments in respect of distributions and payments upon liquidation,
redemption or otherwise will be subordinated to the rights of the holders of
the capital securities. See "Description of Capital Securities -
Subordination of Common Securities." We have acquired common securities in a
liquidation amount equal to at least 3% of the total capital of the Trust.
The Trust has a term of approximately 35 years, but may dissolve earlier as
provided in its Amended and Restated Declaration of Trust, referred to in
this Prospectus as the trust agreement. The Trust's business and affairs are
conducted by the issuer trustees. The issuer trustees for the Trust are
Wilmington Trust Company, as the property trustee and as the Delaware
trustee, and three administrative trustees who are our officers. Wilmington
Trust Company also acts as sole Indenture trustee under the Indenture and as
guarantee trustee under the guarantee. See "Description of Series B
Securities - Description of Guarantee" and "- Description of Debentures." The
holder of the common securities of the Trust or, if an event of default under
the trust agreement has occurred and is continuing, the holders of not less
than a majority in liquidation amount of the capital securities will be
entitled to appoint, remove or replace the property trustee and/or the
Delaware trustee. In no event will the holders of the capital securities have
the right to vote to appoint, remove or replace the administrative trustees;
such voting rights will be vested exclusively in the holder of the common
securities. The duties and obligations of each issuer trustee are governed by
the trust agreement. As issuer of the junior subordinated debentures, we will
pay all fees, expenses, debts and obligations (other than the payment of
principal of, and premium and interest on, the capital securities) related to
the Trust and the exchange offer and will pay, directly or indirectly, all
ongoing costs, expenses and liabilities of the Trust. The principal executive
office of the Trust is c/o InterWest Bancorp, Inc., 275 Southeast Pioneer
Way, Oak Harbor, WA 98277 and its telephone number is (360) 679-4181.
15
<PAGE>
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Series A capital securities,
InterWest Bancorp and InterWest Capital Trust I entered into the Registration
Rights Agreement with the initial purchasers, pursuant to which InterWest
Bancorp and InterWest Capital Trust I 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 Series A capital securities for capital securities with terms
identical in all material respects to the terms of the Series A 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 InterWest Bancorp and InterWest Capital Trust I under the
Registration Rights Agreement. The form and terms of the Series B capital
securities are the same as the form and terms of the Series A capital
securities except that the Series B 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 the distribution rate thereon. In that regard,
the Series A capital securities provide, among other things, that, if a
registration statement relating to the exchange offer has not been filed by
April 9, 2000 and declared effective by May 9, 2000, the distribution rate
borne by the Series A capital securities will increase by 0.25% per annum
until the exchange offer is consummated. Upon consummation of the exchange
offer, holders of Series A capital securities will not be entitled to any
increase in the distribution rate thereon or any further registration rights
under the Registration Rights Agreement.
The exchange offer is not being made to, nor will InterWest Capital
Trust I accept tenders for exchange from, holders of Series A 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
such jurisdiction.
Unless the context requires otherwise, the term "holder" with
respect to the exchange offer means any person in whose name the Series A
capital securities are registered on the books of InterWest Capital Trust I
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 Series A capital securities
and who desires to deliver such Series A capital securities by book-entry
transfer at DTC. In addition, the term "person" shall refer to a natural
person or any legally existing entity.
Pursuant to the exchange offer, InterWest Bancorp will exchange as
soon as practicable after the date hereof, the Series A guarantee for the
Series B guarantee and the Series A debentures, in an amount corresponding to
the Series A capital securities accepted for exchange, for a like aggregate
principal amount of the Series B debentures. The Series B guarantee and the
Series B debentures have been registered under the Securities Act.
16
<PAGE>
TERMS OF THE EXCHANGE OFFER
InterWest Capital Trust I hereby 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 $40,000,000 aggregate liquidation amount of
Series B capital securities for a like aggregate liquidation amount of Series
A capital securities properly tendered on or prior to the expiration date and
not properly withdrawn in accordance with the procedures described below.
InterWest Capital Trust I will issue, promptly after the expiration date, an
aggregate liquidation amount of up to $40,000,000 of Series B capital
securities in exchange for a like aggregate liquidation amount of outstanding
Series A capital securities tendered and accepted in connection with the
exchange offer. Holders may tender their Series A capital securities in whole
or in part in a liquidation amount of not less than $100,000 or any integral
multiple of $1,000 liquidation amount in excess thereof; provided, however,
that if any Series A 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 thereof.
The exchange offer is not conditioned upon any minimum liquidation
amount of Series A capital securities being tendered. As of the date of this
Prospectus, $40,000,000 aggregate liquidation amount of the Series A capital
securities is outstanding.
Holders of Series A capital securities do not have any appraisal or
dissenters' rights in connection with the exchange offer. Series A 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 Amended and Restated Declaration of Trust, but will not
be entitled to any further registration rights under the Registration Rights
Agreement.
If any tendered Series A 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 Series A
capital securities will be returned, without expense, to the tendering holder
thereof promptly after the expiration date.
Holders who tender Series A 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 Series A capital securities in connection
with the exchange offer. InterWest Bancorp will pay all charges and expenses,
other than certain applicable taxes described below, in connection with the
exchange offer. See "- Fees and Expenses."
Neither the Board of Directors of InterWest Bancorp nor any Trustee
of InterWest Capital Trust I makes any recommendation to holders of Series A
capital securities as to whether to tender or refrain from tendering all or
any portion of their Series A capital securities pursuant to the exchange
offer. In addition, no one has been authorized to make any such
recommendation. Holders of Series A capital securities must make their own
decision whether to tender pursuant to the exchange offer and, if so, the
aggregate amount of Series A 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 March 31,
2000, unless the exchange offer is extended by InterWest Bancorp or InterWest
Capital Trust I, in which case the expiration date shall be the latest date
and time to which the exchange offer is extended.
InterWest Bancorp and InterWest Capital Trust I expressly reserve
the right in their sole and absolute discretion, subject to applicable law,
at any time and from time to time, to:
17
<PAGE>
- delay the acceptance of the Series A capital securities for
exchange;
- terminate the exchange offer, whether or not any Series A
capital securities have been accepted for exchange, if
InterWest Bancorp and InterWest Capital Trust I determine that
any of the events or conditions referred to under "-
Conditions to the Exchange Offer" have occurred or exist;
- extend the expiration date of the exchange offer and retain
all Series A capital securities tendered pursuant to the
exchange offer, subject, however, to the right of holders of
Series A capital securities to withdraw their tendered Series
A capital securities as described under "- Withdrawal
Rights;" and
- 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 InterWest
Bancorp and InterWest Capital Trust I to constitute a material change, or if
InterWest Bancorp and InterWest Capital Trust I waive a material condition of
the exchange offer, InterWest Bancorp and InterWest Capital Trust I will
promptly disclose such amendment by means of a Prospectus supplement that
will be distributed to the registered holders of the Series A capital
securities, and InterWest Bancorp and InterWest Capital Trust I 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 InterWest Bancorp and InterWest
Capital Trust I may choose to make any public announcement and subject to
applicable law, InterWest Bancorp and InterWest Capital Trust I shall have no
obligation to publish, advertise or otherwise communicate any such public
announcement other than by issuing a release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF SERIES B CAPITAL SECURITIES
Upon the terms and subject to the conditions of the exchange offer,
InterWest Capital Trust I will exchange, and will issue to the exchange
agent, Series B capital securities for Series A capital securities validly
tendered and not withdrawn promptly after the expiration date.
In all cases, delivery of Series B capital securities in exchange
for Series A capital securities tendered and accepted for exchange pursuant
to the exchange offer will be made only after timely receipt by the exchange
agent of:
- Series A capital securities or a book-entry confirmation of a
book-entry transfer of Series A 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 a facsimile, properly completed
and duly executed, with any required signature guarantees, or,
in the case of a book-entry transfer, an Agent's Message, 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 Series A 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
18
<PAGE>
tendering participant, which acknowledgment states that such participant has
received and agrees to be bound by the letter of transmittal and that
InterWest Capital Trust I and InterWest Bancorp may enforce such letter of
transmittal against such participant.
Subject to the terms and conditions of the exchange offer, InterWest
Bancorp and InterWest Capital Trust I will be deemed to have accepted for
exchange, and thereby exchanged, Series A capital securities validly tendered
and not withdrawn as, if and when InterWest Capital Trust I gives oral or
written notice to the exchange agent of InterWest Bancorp' and InterWest
Capital Trust I's acceptance of such Series A capital securities for exchange
pursuant to the exchange offer. The exchange agent will act as agent for
InterWest Capital Trust I for the purpose of receiving tenders of Series A
capital securities, letters of transmittal and related documents, and as
agent for tendering holders for the purpose of receiving Series A capital
securities, letters of transmittal and related documents and transmitting
Series B capital securities to validly tendering holders. Such exchange will
be made promptly after the expiration date. If, for any reason whatsoever,
acceptance for exchange or the exchange of any Series A capital securities
tendered pursuant to the exchange offer is delayed, whether before or after
InterWest Capital Trust I's acceptance for exchange of Series A capital
securities, or InterWest Bancorp and InterWest Capital Trust I extend the
exchange offer or are unable to accept for exchange or exchange Series A
capital securities tendered pursuant to the exchange offer, then, without
prejudice to InterWest Bancorp' and InterWest Capital Trust I's rights set
forth herein, the exchange agent may, nevertheless, on behalf of InterWest
Bancorp and InterWest Capital Trust I and subject to Rule 14e-1(c) under the
Exchange Act, retain tendered Series A capital securities. Such Series A
capital securities may not be withdrawn except to the extent tendering
holders are entitled to withdrawal rights as described under "- Withdrawal
Rights."
Pursuant to the letter of transmittal or Agent's Message in lieu
thereof, a holder of Series A 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 Series A capital securities, that
InterWest Capital Trust I will acquire good, marketable and unencumbered
title to the tendered Series A capital securities, free and clear of all
liens, restrictions, charges and encumbrances, and the Series A 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 InterWest Bancorp,
InterWest Capital Trust I or the exchange agent to be necessary or desirable
to complete the exchange, sale, assignment and transfer of the Series A
capital securities tendered pursuant to the exchange offer.
PROCEDURES FOR TENDERING SERIES A CAPITAL SECURITIES
VALID TENDER. Except as set forth below, in order for Series A
capital securities to be validly tendered pursuant to the exchange offer, a
properly completed and duly executed letter of transmittal, or facsimile of
such letter, with any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message and any other required documents,
must be received by the exchange agent at its address set forth under "-
Exchange Agent," and, in addition, one of the following:
- tendered Series A capital securities must be received by the
exchange agent;
- such Series A 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 Series A capital securities are tendered, a
tendering holder should fill in the amount of Series A capital securities
being tendered in the appropriate box on the letter of transmittal, or
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so indicate in an Agent's Message in lieu of the letter of transmittal. The
untendered liquidation amount must be $100,000 or any integral multiple of
$1,000 in excess thereof. The entire amount of Series A 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 Series A capital securities at DTC for purposes of the
exchange offer as soon as practicable. Any financial institution that is a
participant in DTC's book-entry transfer facility system may make a
book-entry delivery of the Series A capital securities by causing DTC to
transfer such Series A capital securities into the exchange agent's account
at DTC in accordance with DTC's procedures for transfers. However, although
delivery of Series A capital securities may be effected through book-entry
transfer into the exchange agent's account at DTC, the letter of transmittal,
or facsimile of such letter, 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. If a certificate for the Series A capital
securities is registered in a name other than that of the person surrendering
the certificate or such holder completes the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in the letter of
transmittal, such certificate must be endorsed or accompanied by a properly
executed bond power, with the respective endorsement or signature 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; or
- an "Eligible Institution," which is a savings association that
is a participant in a Securities Transfer Association, unless
surrendered on behalf of such Eligible Institution. See
Instruction 1 to the letter of transmittal.
GUARANTEED DELIVERY. If a holder desires to tender Series A capital
securities pursuant to the exchange offer and the certificates for such
Series A 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, such Series A capital
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securities may nevertheless be tendered; provided, however, that all of the
following guaranteed delivery procedures are complied with:
- such tenders are made by or through an Eligible Institution;
- 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 Series A capital securities, in proper form for
transfer, together with a properly completed and duly executed
letter of transmittal, or a facsimile of such letter, or
Agent's Message 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 such
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 Series B
capital securities in exchange for Series A 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 Series A capital
securities, or of a book-entry confirmation with respect to such Series A
capital securities, and a properly completed and duly executed letter of
transmittal, or facsimile of such letter, or Agent's Message together with
any required signature guarantees and any other documents required by the
letter of transmittal. Accordingly, the delivery of Series B capital
securities might not be made to all tendering holders at the same time, and
will depend upon when Series A capital securities, book-entry confirmations
with respect to Series A capital securities and other required documents are
received by the exchange agent.
InterWest Bancorp' and InterWest Capital Trust I's acceptance for
exchange of Series A capital securities tendered pursuant to any of the
procedures described above will constitute a binding agreement between the
tendering holder, InterWest Bancorp and InterWest Capital Trust I 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 Series A capital securities will be determined
by InterWest Bancorp and InterWest Capital Trust I, in their sole discretion,
whose determination shall be final and binding on all parties. InterWest
Bancorp and InterWest Capital Trust I reserve the absolute right, in their
sole and absolute discretion, to reject any and all tenders determined by
them not to be in proper form or the acceptance of which, or exchange for,
may, in the opinion of counsel to InterWest Bancorp and InterWest Capital
Trust I, be unlawful. InterWest Bancorp and InterWest Capital Trust I 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 Series A
capital securities of any particular holder whether or not similar conditions
or irregularities are waived in the case of other holders.
The interpretation by InterWest Bancorp and InterWest Capital Trust
I 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 Series A 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 InterWest Bancorp, InterWest Capital Trust I, any affiliates
or assigns of InterWest Bancorp or InterWest Capital
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Trust I, 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 InterWest Bancorp and InterWest Capital Trust I, proper
evidence satisfactory to InterWest Bancorp and InterWest Capital Trust I, in
their sole discretion, of such person's authority to so act must be submitted.
A beneficial owner of Series A 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 SERIES B CAPITAL SECURITIES
InterWest Capital Trust I is making the exchange offer for the
Series B 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 InterWest Bancorp nor InterWest Capital Trust
I 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, and
subject to the two immediately following sentences, InterWest Bancorp and
InterWest Capital Trust I believe that Series B capital securities issued
pursuant to this exchange offer in exchange for Series A capital securities
may be offered for resale, resold and otherwise transferred by a holder
thereof without further compliance with the registration and Prospectus
delivery requirements of the Securities Act; provided, however, that such
Series B capital securities are acquired in the ordinary course of such
holder's business, that such holder is not participating, and has no
arrangement or understanding with any person to participate in, a
distribution as defined in the Securities Act of such Series B capital
securities and that such holder is not a broker-dealer. However, any holder
of Series A capital securities who is an affiliate of InterWest Bancorp or
InterWest Capital Trust I or who intends to participate in the exchange offer
for the purpose of distributing Series B capital securities, or any
broker-dealer who purchased Series A capital securities from InterWest
Capital Trust I 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 Series A
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 Series A capital securities, unless
such sale is made pursuant to an exemption from such
requirements.
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 Series B capital securities.
Each holder of Series A capital securities who wishes to exchange
Series A capital securities for Series B capital securities in the exchange
offer will be required to represent that:
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- it is not an affiliate of InterWest Bancorp or InterWest
Capital Trust I;
- any Series B 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, as defined in the Securities
Act, of such Series B capital securities; and
- if such holder is not a broker-dealer, such holder is not
engaged in, and does not intend to engage in, a distribution
of such Series B capital securities.
The letter of transmittal contains the foregoing representations. In
addition, InterWest Bancorp and InterWest Capital Trust I may require such
holder, as a condition to such holder's eligibility to participate in the
exchange offer, to furnish to InterWest Bancorp and InterWest Capital Trust I
in writing information as to the number of "beneficial owners," as defined in
Rule 13d-3 under the Exchange Act, on behalf of whom such 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 Series
A 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 Series B 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 in the interpretive
letters referred to above, InterWest Bancorp and InterWest Capital Trust I
believe that participating broker-dealers who acquired Series A 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 Series B capital securities received upon exchange of
such Series A capital securities, other than Series A capital securities
which represent an unsold allotment from the original sale of the Series A
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 Series B capital securities. Accordingly, this Prospectus,
as it may be amended or supplemented from time to time, may be used by a
participating broker-dealer during the period referred to below in connection
with resales of Series B capital securities received in exchange for Series A
capital securities where such Series A capital securities were acquired by
such 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, InterWest Bancorp and InterWest
Capital Trust I 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 Series B 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 such Series B
capital securities have been disposed of by such participating broker-dealer.
See "Plan of Distribution." However, a participating broker-dealer who
intends to use this Prospectus in connection with the resale of Series B
capital securities received in exchange for Series A capital securities
pursuant to the exchange offer must notify InterWest Bancorp or InterWest
Capital Trust I, or cause InterWest Bancorp or InterWest Capital Trust I 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 the address set forth herein under "- Exchange Agent." Any person,
including any participating broker-dealer, who is an affiliate of InterWest
Bancorp or InterWest Capital Trust I may not rely on such interpretive letters
and must comply with the registration and Prospectus delivery requirements of
the Securities Act in connection with any resale transaction.
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In that regard, each participating broker-dealer who surrenders Series
A 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 that, upon receipt of notice from InterWest Bancorp or InterWest Capital
Trust I 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, 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 Series B capital securities, or the Series B guarantee or the Series
B debentures, as applicable, pursuant to this Prospectus until InterWest Bancorp
or InterWest Capital Trust I has amended or supplemented this Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to such participating broker-dealer or InterWest Bancorp
or InterWest Capital Trust I has given notice that the sale of the Series B
capital securities, or the Series B guarantee or the Series B debentures, as
applicable, may be resumed, as the case may be. If InterWest Bancorp or
InterWest Capital Trust I gives such notice to suspend the sale of the Series B
capital securities, or the Series B guarantee or the Series B 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 Series B 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 Series B
capital securities or to and including the date on which InterWest Bancorp or
InterWest Capital Trust I has given notice that the sale of Series B capital
securities, or the Series B guarantee or the Series B debentures, as applicable,
may be resumed, as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Series A capital
securities may be withdrawn at any time on or prior to the expiration date. In
order for a withdrawal to be effective a written or facsimile transmission of
such notice of withdrawal must be timely received by the exchange agent at one
of its addresses set forth under "- Exchange Agent" on or prior to the
expiration date. Any such notice of withdrawal must specify the name of the
person who tendered the Series A capital securities to be withdrawn, the
aggregate principal amount of Series A capital securities to be withdrawn, and,
if certificates for such Series A capital securities have been tendered, the
name of the registered holder of the Series A capital securities as set forth on
the Series A capital securities, if different from that of the person who
tendered them. If Series A capital securities have been delivered or otherwise
identified to the exchange agent, then prior to their physical release, the
tendering holder must submit the certificate numbers shown on the particular
Series A 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
Series A capital securities tendered for the account of an Eligible Institution.
If Series A capital securities have been tendered pursuant to the procedures for
book-entry transfer set forth in "- Procedures for Tendering Series A Capital
Securities," the notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawal of Series A 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 Series A capital securities may not be rescinded. Series A 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 Series A Capital Securities."
All questions as to the validity, form and eligibility, including time
of receipt, of such withdrawal notices will be determined by InterWest Bancorp
and InterWest Capital Trust I, in their sole discretion, whose determination
shall be final and binding on all parties. None of InterWest Bancorp, InterWest
Capital Trust I, any affiliates or assigns of InterWest Bancorp or InterWest
Capital Trust I, the exchange
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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 Series A capital securities which
have been tendered but which are withdrawn will be returned to the holder
thereof promptly after withdrawal.
DISTRIBUTIONS ON SERIES B CAPITAL SECURITIES
Distributions on the Series B capital securities are payable
semi-annually in arrears on May 15 and November 15 of each year, commencing May
15, 2000, at the annual rate of 9.875% of the liquidation amount to the holders
of the Series B capital securities on the relevant record dates. Distributions
on the Series B capital securities will accumulate from May 15, 2000, the date
of the initial distribution on the capital securities.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the exchange offer, or any
extension of the exchange offer, InterWest Bancorp and InterWest Capital Trust I
will not be required to accept for exchange, or to exchange, any Series A
capital securities for any Series B capital securities, and, as described below,
may terminate the exchange offer, whether or not any Series A 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:
- there shall occur a change in the current interpretation by
the staff of the Securities and Exchange Commission which
permits the Series B capital securities issued pursuant to the
exchange offer to be offered for resale, resold and otherwise
transferred by their holders, other than broker-dealers and
any such holder which is an affiliate of InterWest Bancorp or
InterWest Capital Trust I, without compliance with the
registration and Prospectus delivery provisions of the
Securities Act; provided, however, that such Series B capital
securities are acquired in the ordinary course of such
holders' business and such holders have no arrangement or
understanding with any person to participate in the
distribution of such Series B capital securities;
- any law, statute, rule or regulation shall have been adopted
or enacted which, in the judgment of InterWest Bancorp or
InterWest Capital Trust I, would reasonably be expected to
impair its ability to proceed with the exchange offer;
- any action or proceeding shall have been instituted or
threatened in any court or by or before any governmental
agency or body with respect to the exchange offer which, in
InterWest Bancorp' and InterWest Capital Trust I's judgment,
would reasonably be expected to impair the ability of
InterWest Capital Trust I or InterWest Bancorp to proceed
with the exchange offer;
- a banking moratorium shall have been declared by United States
federal or Washington or New York state authorities which,
in InterWest Bancorp' and InterWest Capital Trust I's
judgment, would reasonably be expected to impair the ability
of InterWest Capital Trust I or InterWest Bancorp to proceed
with the exchange offer;
- trading on the New York Stock Exchange or generally in the
United States over-the-counter market shall have been
suspended by order of the Securities and Exchange Commission
or any other governmental authority which, in InterWest
Bancorp' and InterWest Capital Trust I's judgment, would
reasonably be expected to impair the ability of the issuer or
InterWest Bancorp to proceed with the exchange offer; or
- a stop order shall have been issued by the Securities and
Exchange Commission or any state securities authority
suspending the effectiveness of the Registration Statement or
proceedings shall have been initiated or, to the knowledge of
InterWest Bancorp or InterWest Capital Trust I,
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threatened for that purpose, or any governmental approval
which either InterWest Bancorp or InterWest Capital Trust I
shall, in its sole discretion, deem necessary for the
consummation of the exchange offer as contemplated hereby has
not been obtained.
If InterWest Bancorp and InterWest Capital Trust I determine in their
sole and absolute discretion that any of the foregoing events or conditions has
occurred or exists, they may, subject to applicable law, terminate the exchange
offer or waive any such condition or otherwise amend the terms of the exchange
offer in any respect. If such waiver or amendment constitutes a material change
to the exchange offer, InterWest Bancorp and InterWest Capital Trust I will
promptly disclose such waiver or amendment by means of a Prospectus supplement
that will be distributed to the registered holders of the Series A capital
securities and will extend the exchange offer to the extent required by Rule
14e-1 under the Exchange Act.
EXCHANGE AGENT
Wilmington Trust Company, as property trustee of Interwest Capital
Trust I, 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:
Wilmington Trust Company, as Exchange Agent
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attn: Corporate Trust Administration - InterWest Capital Trust I
Exchange Offer
Facsimile Transmission (Eligible Institutions only): (302) 651-8882
Confirm by telephone or for information call: (302) 651-1000
Delivery to other than the above addresses or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
InterWest Bancorp 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 therewith. InterWest Bancorp 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 Series A capital securities,
and in handling or tendering for their customers.
Holders who tender their Series A capital securities for exchange will
not be obligated to pay any transfer taxes in connection therewith. If, however,
Series B 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 Series A capital
securities tendered, or if a transfer tax is imposed for any reason other than
the exchange of Series A capital securities in connection with the exchange
offer, then the amount of any such 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 such taxes or exemption therefrom is not
submitted with the letter of transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
Neither InterWest Bancorp nor InterWest Capital Trust I will make any
payment to brokers, dealers or other nominees soliciting acceptances of the
exchange offer.
DESCRIPTION OF SERIES B SECURITIES
The terms of the Series B securities are identical in all material
respects to the terms of the Series A securities, except that
- the Series A capital securities have not been registered under
the Securities Act, are subject to restrictions on transfer
under federal and state securities laws and are entitled
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to certain rights under the Registration Rights Agreement
which will terminate upon consummation of the exchange offer;
- the Series B capital securities will not provide for any
increase in the distribution rate; and
- the Series B debentures will not provide for any increase in
the interest rate.
Except where otherwise indicated, the following description applies to
both the Series B capital securities and the Series A capital securities.
THIS SUMMARY DESCRIBES THE MATERIAL PROVISIONS OF THE CAPITAL
SECURITIES. IT IS NOT COMPLETE AND IS SUBJECT TO, AND QUALIFIED BY, THE TRUST
AGREEMENT, INCLUDING THE DEFINITIONS USED IN THE TRUST AGREEMENT, AND THE TRUST
INDENTURE ACT OF 1939, AS AMENDED. WE HAVE INCORPORATED THE DEFINITIONS USED IN
THE TRUST AGREEMENT IN THIS PROSPECTUS. YOU CAN RECEIVE A COMPLETE COPY OF THE
FORM OF TRUST AGREEMENT BY REQUESTING A COPY FROM INTERWEST BANCORP.
DESCRIPTION OF CAPITAL SECURITIES
The capital securities represent beneficial interests in the Trust. As
a holder of capital securities, you are entitled to a preference over the common
securities in certain circumstances with respect to distributions and amounts
payable on redemption of the capital securities or liquidation of the Trust, as
described under "- Subordination of Common Securities." The trust agreement will
not be qualified under the Trust Indenture Act of 1939, except upon
effectiveness of the exchange offer registration statement or the shelf
registration statement. By its terms, however, the trust agreement will
incorporate certain provisions of the Trust Indenture Act, and, upon
consummation of the exchange offer or effectiveness of the shelf registration
statement, the trust agreement will be subject to and governed by the Trust
Indenture Act.
The capital securities are limited to $40.0 million aggregate
liquidation amount at any one time outstanding, including any exchange capital
securities that may be issued from time to time in exchange for the capital
securities, as described under "Exchange Offer; Registration Rights." The
capital securities rank equal to, and payments will be made on a pro rata basis
with, the common securities, 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. Our guarantee for the benefit of the
holders of the capital securities will be a guarantee on a subordinated basis
with respect to the capital securities, but will not guarantee payment of
distributions or amounts payable on redemption of the capital securities or
liquidation of the Trust when the Trust does not have funds legally available
for such payments. You should read "Description of Guarantee" for more
information about our guarantee.
The capital securities have been rated "BBB-" by Thomson Financial Bank
Watch. See "Ratings."
DISTRIBUTIONS
Distributions on the capital securities will be cumulative, and will
accumulate from the date that the capital securities are first issued.
Distributions will be made at the annual rate of 9.875% of the stated
liquidation amount, payable semi-annually in arrears on the distribution dates,
which are May 15 and November 15 of each year, commencing May 15, 2000, to the
holders of the capital securities on the relevant record dates. The record dates
will be the 1st day of the month in which the relevant payment
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occurs. The amount of distributions payable for any distribution period will
be based on a 360-day year of twelve 30-day months.
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, a Sunday, or a day on which banking
institutions in Wilmington, Delaware, New York, New York are authorized or
required by law or executive order to remain closed.
The Trust's revenue available for distribution to holders of the
capital securities will be limited to our payments to the Trust under our junior
subordinated debentures. For more information, please refer to "Description of
Junior Subordinated Debentures - General." If we do not make interest payments
on the junior subordinated debentures, the property trustee will not have funds
available to pay distributions on the capital securities. Our guarantee only
covers the payment of distributions if and to the extent that the Trust has
funds legally available to pay the distributions. You should read "Description
of Guarantee" for more information about the extent of our guarantee.
OPTION TO DEFER INTEREST PAYMENTS
As long as no debenture event of default exists, we have 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 that 10
consecutive semi-annual periods, provided that no deferral period will end on a
date other than an interest payment date, or extend beyond November 15, 2029,
the stated maturity date of the junior subordinated debentures. If we defer
payments, the Trust will defer semi-annual distributions on the capital
securities during the deferral period. During any deferral period, distributions
will continue to accumulate on the capital securities and on any accumulated and
unpaid distributions, compounded semi-annually 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.
Before the end of any deferral period, we may extend the deferral
period, as long as the extension does not cause the deferral period to exceed 10
consecutive semi-annual periods, or, to end on a date other than an interest
payment date or extend beyond November 15, 2029. At the end of any deferral
period and upon the payment of all amounts then due on any interest payment
date, we may elect to begin a new deferral period, subject to the above
requirements. No interest shall be due and payable during a deferral period
until the deferral period ends. We must give the property trustee, the
administrative trustees and the debenture trustee notice of our election to
defer interest payments, or to extend a deferral period at least five business
days 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 administrative trustees are required to give
notice to any securities exchange or automated quotation
system or to holders of the capital securities of the record
date or the date such distributions are payable, but in any
event not less than five business days prior to such record
date.
There is no limitation on the number of times that we may elect to
begin a deferral period. Please refer to "Description of Junior Subordinated
Debentures - Option to Extend Interest Payment Date" and "Certain Federal Income
Tax Consequences - Interest Income and Original Issue Discount."
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During any deferral period, we may not:
- declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect
to, any of our common stock;
- make any payment of principal of, or interest or premium, if
any, on or repay, repurchase or redeem any 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 of our subsidiaries if such
guarantee ranks equal or junior to the junior subordinated
debentures.
Notwithstanding the foregoing, during a deferral period the following
is permitted:
- a payment of dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase
shares of, our common stock;
- a 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;
- a payment under the guarantee;
- a reclassification of our common stock or the exchange or
conversion of one class or series of our capital stock for
another class or series of our capital stock;
- the purchase of fractional interests in shares of our common
stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or
exchanged; and
- the purchase of common stock related to the issuance of common
stock or rights under any of our benefit plans for our
directors, officers or employees or any of our dividend
reinvestment plans.
We do not currently intend to exercise our right to defer payments of
interest on the junior subordinated debentures. Our 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 Guarantee" for more information about the extent of our
guarantee.
REDEMPTION
Upon repayment at maturity on November 15, 2029 or prepayment, in whole
or in part prior to November 15, 2029, of the junior subordinated debentures
(other than following the distribution of the junior subordinated debentures to
you as a holder of the Trust's capital securities and us, as the holder of the
Trust's 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 the applicable redemption price, capital and common
securities having an aggregate liquidation amount equal to the principal amount
of the junior subordinated debentures paid to the Trust. The Trust will give
notice of any redemption of capital securities between 30 to 60 days prior to
the redemption date.
If we prepay 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
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Trust, the junior subordinated debentures will be subject to optional prepayment
in whole, but not in part, on or after November 15, 2009.
We will have the right to prepay the junior subordinated debentures:
- in whole or in part, on or after November 15, 2009; and
- in whole but not in part, at any time prior to November 15,
2009, 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.
We may have to obtain regulatory approval, including the approval of
the Federal Reserve Board before we redeem any junior subordinated debentures.
Please refer to "Description of Debentures - Optional Prepayment" and "Special
Event Prepayment" for information on prepayment of the junior subordinated
debentures.
The redemption prices applicable to the capital securities
correspond to the maturity and prepayment prices applicable to the junior
subordinated debentures.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
We have 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, we have the right to distribute the junior subordinated
debentures to the holders of the capital securities and to us as holder of the
common securities. Our right to dissolve the Trust is subject to our receiving:
- an opinion of counsel to the effect that if we distribute the
junior subordinated debentures, the holders of the capital
securities will not experience a taxable event; and
- all required regulatory approvals.
The Trust will automatically dissolve if:
- certain bankruptcy events occur, or we dissolve or liquidate;
- we distribute junior subordinated debentures having a
principal amount equal to the liquidation amount of the
capital securities and the common securities to holders of
such securities and we, as sponsor, have given written
directions to the property trustee to dissolve the Trust
(which direction is at our option and, except as described
above, wholly within our discretion, as sponsor);
- the Trust redeems all of the capital securities and common
securities in accordance with their terms;
- 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 for any of the above reasons, except for a
redemption of all capital securities and the common securities, it will be
liquidated by the administrative trustees as quickly as they 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
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securities and the common securities, unless the property trustee determines
that this distribution is not practicable. If the property trustee determines
that this distribution is not practicable, the holders of the capital
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 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, or 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:
- the capital 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 a
registered global certificate representing the junior
subordinated debentures to be delivered upon this
distribution; and
- any certificates representing capital 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 bearing
accrued and unpaid interest in an amount equal to the
accumulated and unpaid distributions on those capital
securities until such certificates are presented to the
administrative trustees or their agent for cancellation, in
which case we will issue to those holders, and the debenture
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 may be distributed 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 we elect not to prepay the junior subordinated debentures prior to
maturity and either elect not to or we are unable to liquidate the Trust and
distribute the junior subordinated debentures to holders of the capital
securities, the capital securities will remain outstanding until the repayment
of the junior subordinated debentures on November 15, 2029.
REDEMPTION PROCEDURES
If we pay the junior subordinated debentures at maturity or earlier
prepayment, the Trust will redeem capital securities at the applicable
redemption price with the proceeds that it receives from our payment or
repayment of the junior subordinated debentures. Any redemption of capital
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
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redemption price. For more information, you should refer to
"- Form, Denomination, Book-Entry Procedures and Transfers."
- 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."
The paying agent will initially be the property trustee and any
co-paying agent chosen by the property trustee and acceptable to the
administrative trustees and us.
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 shall 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 us pursuant to the guarantee:
- distributions on the capital securities will continue to
accumulate from the redemption date originally established by
the Trust to the date such applicable redemption price is
actually paid; and
- the actual payment date will be the redemption date for
purposes of calculating the applicable redemption price.
Notice of any redemption will be mailed between 30 and 60 days before
the redemption date to each holder of capital securities at its registered
address. Unless we default 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
called for redemption.
Subject to applicable law, including, without limitation, federal
securities laws, we or our subsidiaries may at any time, and from time to time,
purchase outstanding capital securities in the open market or by private
agreement.
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SUBORDINATION OF COMMON SECURITIES
Payment of distributions on, the redemption price of, and the
liquidation distribution for, the capital securities and the common securities,
as applicable, will generally be made on a PRO RATA basis. However, if an event
of default under the junior subordinated debentures exists on any distribution,
redemption or liquidation date, no payment of any distribution on, or applicable
redemption price of, or liquidation distribution for, 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, redemption or liquidation date, or payment of the applicable
redemption price or liquidation distribution 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, or liquidation
distribution for, the capital securities then due and payable.
In the case of any event of default under the trust agreement, we, 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 or waived. 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 our 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. See "Description of Debentures - Debenture Events of
Default."
The trust agreement provides that within ten (10) business days
after a responsible officer of the property trustee has actual knowledge of
the occurance of any event of default, the property trustee will give notice
of the event of default to the holders of the capital securities, the
administrative trustees and to us, as sponsor, unless the event of default
has been cured or waived. We, as sponsor, and the administrative trustees are
required to file annually with the property trustee a certificate as to
whether we and the administrative trustees have complied with the applicable
conditions and covenants of the trust agreement.
If a debenture event of default exists, 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 require the redemption of the capital
securities.
REMOVAL OF ISSUER TRUSTEES
Unless a debenture event of default exists, we may remove the property
trustee and the Delaware trustee at any time. If a debenture event of default
exists, the property trustee and the Delaware trustee may be removed only by the
holders of a majority in liquidation amount of the outstanding capital
securities. In no event will the holders of the capital securities have the
right to vote to appoint, remove or replace the administrative trustees, because
these voting rights are vested exclusively in us 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.
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MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
If the property trustee, the Delaware trustee or any administrative
trustee that is not a natural person is merged, converted or consolidated
into another entity, or such 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 such trustee, the new
entity shall be the successor of such 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 all or 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 our request,
as sponsor, and with the consent of the administrative trustees but without the
consent of the holders of the capital securities, merge with or into,
consolidate, amalgamate or be replaced by or convey, transfer or lease all or
substantially all of its properties and assets to a trust organized as such
under the laws of any state; provided, that:
- the successor either:
- expressly assumes all of the obligations of the Trust
with respect to the capital securities; or
- substitutes securities for the capital securities
that have substantially the same terms as the capital
securities so long as the substitute securities rank
equal to or the same as the capital securities in
priority with respect to distributions and payments
upon liquidation, redemption and otherwise;
- we appoint 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 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 any such rating organization;
- the transaction does not adversely affect the rights,
preferences and privileges of the holders of the capital
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, we 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 (including any successor
securities) in any material respect (other than any
dilution of such holders' interests in the new
entity);
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- following the transaction, neither the Trust nor
the successor will be required to register as an
investment company under the Investment Company
Act; and
- the Trust continues to be, and any successor will
be, classified as a grantor trust for federal
income tax purposes; and
- we, or any permitted successor or assignee, own all of the
common securities of the successor and guarantee the
obligations of the successor under the substitute securities
at least to the extent provided by our guarantee and the
common securities guarantee.
Notwithstanding the foregoing, the Trust may not, except with the
consent of holders of 100% in liquidation amount of the capital securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease all or substantially all its properties and assets 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
not to be classified as a grantor trust for 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" and "Description of Guarantee -
Amendments and Assignment" and as otherwise required by law and the trust
agreement, the holders of the capital securities have no voting rights.
We, together with the property trustee and the administrative trustees,
may amend the trust agreement from time to time, without the consent of the
holders of the capital securities:
(1) 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; or
(2) 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
(3) to modify, eliminate or add any provisions of the trust agreement
as is necessary to enable us or the Trust to conduct an exchange offer in the
manner contemplated by the registration rights agreement;
PROVIDED, HOWEVER, that 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.
We, together with the property trustee and the administrative trustees,
may amend the trust agreement:
- with the consent of holders of a majority (in liquidation
amount) of the outstanding capital securities; and
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- upon receipt by the property trustee and the administrative
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 property trustee and the administrative
trustees in accordance with the amendment will not affect the
Trust's classification as an entity that is not taxable as a
corporation or as being 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, no
amendment may change the amount or timing of any distribution on the capital
securities or otherwise adversely affect the amount of any distribution required
to be made in respect of the capital securities as of a specified date, change
any of the prepayment provisions, or restrict the right of a holder of capital
securities to sue for the enforcement of any payment on or after the specified
date.
So long as the property trustee holds any junior subordinated
debentures, the trustees may not:
- direct the time, method and place of conducting any proceeding
for any remedy available to the debenture trustee, or execute
any trust or power conferred on the debenture 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 will 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 it receives 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 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 federal income tax purposes on account of
such 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 entitled to vote, or of any
matter upon which action by written consent of such 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 us, the Trust, the
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trustees or any affiliates thereof shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The Series B capital securities may be issued in certificated form or
as "global capital securities," which shall consist of one or more capital
securities in registered, global form.
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 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 New York, New York, 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. See "-
Exchange of Book-Entry Capital Securities for Certificated Capital Securities."
Other capital securities may be issued in registered, certificated,
i.e., non-global form. Other capital securities may not be exchanged for
beneficial interests in any global capital securities, except in the limited
circumstances described below. See "- Exchange of Certificated Capital
Securities for Book-Entry Capital Securities."
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.
DEPOSITARY PROCEDURES
DTC has advised the Trust and 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 (collectively, "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 to banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship
with a participant, either directly or indirectly (collectively, "indirect
participants"). 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 the Trust and us that, pursuant to procedures
established by it, (1) upon deposit of the global capital securities, DTC will
credit the accounts of participants designated by the initial purchasers with
the designated liquidation amount of the global capital securities and (2)
ownership of beneficial 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
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respect to participants) or by participants and indirect participants (with
respect to other owners of beneficial interests in the global capital
securities).
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 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" and "- Exchange of Certificated Capital
Securities for Book-Entry Capital Securities."
Except as described below, owners of beneficial interest in the global
capital securities will not have capital securities registered in their name,
will not receive physical delivery of capital securities in certificated form
and will not be considered the registered owners or holders thereof under the
trust agreement for any purpose.
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 the Trust and 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 us. None of the Trust,
InterWest Bancorp, Inc. 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, InterWest Bancorp,
Inc. 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.
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Transfers between participants in DTC will be effected in accordance with
DTC's procedures, and will settle in same-day funds.
DTC has advised the Trust and 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 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, InterWest Bancorp 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 will be exchanged for capital securities
in registered certificated form if:
- DTC notifies the Trust that it is unwilling or unable to
continue as depositary for the global capital security and the
Trust fails to appoint a successor depositary within 90 days
of receipt of DTC's notice, or has ceased to be a clearing
agency registered under the Exchange Act and the Trust fails
to appoint a successor depositary within 90 days of becoming
aware of this condition;
- we, in our sole discretion, elect to cause the capital
securities to be issued in certificated form; or
- an event of default, or any event which after notice or lapse
of time or both would be an event of default, exists under the
trust agreement.
In addition, beneficial interests in a global capital security will
be exchanged by or on behalf of DTC for certificated capital securities upon
request by DTC, but only upon at least 20 days' prior written notice given to
the property trustee in accordance with DTC's customary procedures. 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) and will bear the restrictive legend referred to in
"Notice to Investors," unless the property trustee determines otherwise in
compliance with applicable law.
EXCHANGE OF CERTIFICATED CAPITAL SECURITIES FOR BOOK-ENTRY CAPITAL SECURITIES
Capital securities which are issued in certificated form may not be
exchanged for beneficial interests in any global capital security unless such
exchange occurs in connection with a transfer of such other capital
securities and the transferor first delivers to the property trustee a
written certificate, in the
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form provided in the Declaration of Trust, to the effect that such transfer
will comply with the appropriate transfer restrictions applicable to such
capital securities.
PAYMENT AND PAYING AGENCY
The Trust will make payments on any global capital security 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 administrative trustees and us. The
paying agent will be permitted to resign as paying agent upon 30 days' notice
to the property trustee, the administrative trustees and us. In the event
that the property trustee is no longer the paying agent, the administrative
trustees will appoint a successor (which must be a bank or trust company
acceptable to the administrative trustees and 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 thereof. Any attempted sale, transfer or other
disposition of capital securities in a block having a liquidation amount of
less than $100,000 will be deemed to be void and of no legal effect
whatsoever. Any such purported transferee will 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 will be deemed to have no interest whatsoever in such capital
securities. You should refer to "Notice to Investors" for a detailed
description of the restrictions on transfer.
REGISTRAR AND TRANSFER AGENT
The property trustee will act as registrar and transfer agent for
the capital securities.
The Trust 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.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct
the affairs of and to operate the Trust so that:
- 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 our
indebtedness for U.S. federal income tax purposes.
We, together with the administrative trustees, are authorized to
take any action, not inconsistent with applicable law, the certificate of
trust of the Trust or the trust agreement, that we and the administrative
trustees determine in our discretion is necessary or desirable, as long as it
does not materially adversely affect the interests of the holders of the
capital securities.
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The trust agreement provides that holders of the capital securities
have no preemptive or similar rights to subscribe for any additional capital
securities and the issuance of capital securities is not subject to
preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or
pledge any of its assets.
GOVERNING LAW
The trust agreement and capital securities will be governed by and
construed in accordance with the laws of the State of Delaware, without
regard to conflict of law principles.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
Except if an event of default exists under the trust agreement, the
property trustee will undertake to perform only the duties specifically set
forth in the trust agreement. While such an event of default exists, 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, 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 or to 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 directed by us and,
if not directed, shall take such action as it deems advisable and in the best
interests of the holders of the capital securities and will have no
liability, except for its own bad faith, negligence or willful misconduct.
DESCRIPTION OF DEBENTURES
THE SERIES A DEBENTURES WERE, AND THE SERIES B DEBENTURES WILL BE,
ISSUED UNDER AN INDENTURE, AS SUPPLEMENTED FROM TIME TO TIME, BETWEEN
INTERWEST BANCORP AND THE DEBENTURE TRUSTEE. UPON EFFECTIVENESS WITH THE
SECURITIES AND EXCHANGE COMMISSION OF THE REGISTRATION STATEMENT RELATING TO
THIS EXCHANGE OFFER, THE INDENTURE WILL BE QUALIFIED UNDER THE TRUST
INDENTURE ACT. BY ITS TERMS, THE INDENTURE WILL INCORPORATE BY REFERENCE
CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT AND UPON CONSUMMATION OF THE
EXCHANGE OFFER OR EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT, THE
INDENTURE WILL BE GOVERNED BY AND SUBJECT TO THE TRUST INDENTURE ACT.
THIS SUMMARY DESCRIBES THE MATERIAL PROVISIONS OF THE JUNIOR
SUBORDINATED DEBENTURES. IT IS NOT COMPLETE AND IS SUBJECT TO, AND QUALIFIED
IN ITS ENTIRETY BY, THE INDENTURE. WE HAVE INCORPORATED THE DEFINITIONS USED
IN THE INDENTURE IN THIS PROSPECTUS. YOU CAN OBTAIN A COPY OF THE INDENTURE
BY REQUESTING IT FROM INTERWEST BANCORP. WILMINGTON TRUST COMPANY WILL ACT AS
DEBENTURE TRUSTEE UNDER THE INDENTURE.
GENERAL
Concurrently with the issuance of the Series A capital securities,
the Trust invested the proceeds from the sale of the Series A capital
securities and its common securities in junior subordinated debentures issued
by InterWest Bancorp. The junior subordinated debentures bear interest at the
annual rate of 9.875% of the principal amount of the junior subordinated
debentures, payable semi-annually in arrears on interest payment dates of May
15 and November 15 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 will be May 15, 2000. The period beginning on and
including the date the junior subordinated debentures are first issued and
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ending on but excluding May 15, 2000 and 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 a
360-day year of twelve 30-day months. In the event that any interest payment
date would otherwise fall on a day that is not a business day, the required
payment will be made on 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
rate of 9.875% per year, compounded semi-annually from the last interest
payment date for which interest was paid. The term "interest" as used in this
Prospectus includes semi-annual interest payments and interest on semi-annual
interest payments not paid on the applicable interest payment date.
Notwithstanding anything to the contrary above, if the maturity date
falls on a day that is not a business day, the payment of principal, premium,
if any, and interest will be paid on the next business day, with the same
force and effect as if made on such date, and no interest on such payments
will accrue from and after such date.
The junior subordinated debentures will be issued as a series of
junior subordinated deferrable interest debentures under the Indenture.
The junior subordinated debentures will mature on November 15, 2029,
unless redeemed prior thereto in accordance with the terms discussed below.
The junior subordinated debentures will rank equal to all of our
other subordinated debentures which have been or may be issued to other
trusts established by us, in each case similar to the Trust, and will be
unsecured and rank subordinate and junior to all of our senior indebtedness
to the extent and in the manner set forth in the Indenture. See
"Subordination."
We are a bank holding company regulated by the Federal Reserve
Board, and substantially all of our operating assets are owned by InterWest
Bank, Pacific Northwest Bank and National Bank of Tukwila. We are a legal
entity separate and distinct from our subsidiaries. Holders of junior
subordinated debentures should look only to us for payments on the junior
subordinated debentures. The principal sources of our income are dividends,
interest and fees from our bank subsidiaries. We rely primarily on dividends
from our bank subsidiaries to meet our obligations for payment of principal
and interest on our outstanding debt obligations and corporate expenses.
Dividend payments from our bank subsidiaries are subject to regulatory
limitations, generally based on current and retained earnings, imposed by the
various regulatory agencies with authority over our bank subsidiaries. See
"Regulation and Supervision." Under the Federal Deposit Insurance Act, an
insured depositary institution such as InterWest Bank, Pacific Northwest Bank
and National Bank of Tukwila is prohibited from making capital distributions,
including the payment of dividends, if, after making such distribution, the
institution would become "undercapitalized" (as such term is used in the
statute). Based on their current financial condition, we do not expect that
this provision will have any impact on our ability to obtain dividends from
InterWest Bank, Pacific Northwest Bank and National Bank of Tukwila. During
the year ended September 30, 1999, InterWest Bank declared dividends of $21.0
million payable to us. At September 30, 1999, approximately $49.3 million was
available for payment of dividends to us without prior regulatory approval by
bank subsidiaries we owned at that date. Subsequent to September 30, 1999,
InterWest Bank declared dividends of $6.0 million payable to us.
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Payment of dividends by our bank subsidiaries is also subject to
their profitability, financial condition and capital expenditures and other
cash flow requirements. The Federal Reserve Board has stated that, as a
matter of prudent banking, a bank or bank holding company should not maintain
its existing rate of cash dividends on common stock unless:
- the organization's net income available to common shareholders
over the past year has been sufficient to fund fully the
dividends, and
- the prospective rate of earnings retention appears consistent
with the organization's capital needs, asset quality, and
overall financial condition.
We cannot assure you that InterWest Bank, Pacific Northwest Bank and National
Bank of Tukwila will be able to pay dividends at past levels, or at all, in
the future.
In addition to restrictions on the payment of dividends, our bank
subsidiaries are subject to certain restrictions imposed by federal law on
any extensions of credit to, and certain other transactions with, us and
certain other affiliates, and on investments in stock or other securities
thereof. Such restrictions prevent us and such other affiliates from
borrowing from our bank subsidiaries unless the loans are secured by various
types of collateral. Furthermore, such secured loans, other transactions and
investments by our bank subsidiaries are generally limited in amount as to us
and as to each of such other affiliates to 10% of their capital and surplus
and as to us and all of such other affiliates to an aggregate of 20% of their
capital and surplus. As of September 30, 1999, approximately $16.0 million of
credit was available to us under this limitation, if adequate collateral
would have been available to secure such borrowings.
Also, as a holding company, our right to receive any distribution of
assets of any subsidiary upon such subsidiary's liquidation or reorganization
or otherwise (and thus your right to benefit indirectly from such
distribution), is subject to the prior claims of creditors of that subsidiary
(including depositors, in the case of InterWest Bank, Pacific Northwest Bank
and National Bank of Tukwila), except to the extent that we may be recognized
as a creditor of that subsidiary. At September 30, 1999, our subsidiaries had
total liabilities, including deposits, of $2.4 billion. Accordingly, the
junior subordinated debentures will be effectively subordinated to all
existing and future liabilities of our subsidiaries (including InterWest
Bank, Pacific Northwest Bank, and National Bank of Tukwila's deposit
liabilities) and all liabilities of any of our future subsidiaries. The
Indenture does not limit the incurrence or issuance of other secured or
unsecured debt by us or any subsidiary, including senior indebtedness. See "-
Subordination."
FORM, REGISTRATION AND TRANSFER
If the junior subordinated debentures are distributed to the holders
of the capital securities, the junior subordinated debentures may be
represented by one or more global certificates registered in the name of Cede
& Co., as the nominee of DTC. 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 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 Wilmington, Delaware or at the office of such
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paying agent or paying agents as we may designate from time to time, except
that, at our 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 junior 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. We may at any time
designate additional paying agents or rescind the designation of any paying
agent; however we 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 us, in trust for the payment of the principal of (or premium,
if any) or interest on any junior subordinated debenture and remaining
unclaimed for two years after such principal (or premium, if any) or interest
has become due and payable shall, at our request, be repaid to us and the
holder of the junior subordinated debenture shall thereafter look, as a
general unsecured creditor, only to us for payment.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no debenture event of default exists, we will have 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
10 consecutive semi-annual periods for each deferral period, provided that no
deferral period shall end on a date other than an interest payment date or
extend beyond November 15, 2029. At the end of a deferral period, we must pay
all interest then accrued and unpaid (together with interest thereon at the
rate of 9.875% per year, compounded semi-annually from the last interest
payment date to which interest was paid, to the extent permitted by
applicable law). During a deferral period, interest will continue to accrue,
and holders of the capital securities or, if the junior subordinated
debentures have been distributed to holders of the capital securities,
holders of junior subordinated debentures, will be required to include that
deferred interest in gross income for 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. See "Certain Federal Income Tax Consequences -
Interest Income and Original Issue Discount."
During any such deferral period, we may not:
- declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect
to, any of our capital stock;
- make any payment of principal of, or interest or premium, if
any, on or repay, repurchase or redeem any of our debt
securities that rank equal to or junior to the junior
subordinated debentures; or
- make any guarantee payments with respect to any guarantee by
us of the debt securities of any of our subsidiaries
(including our guarantee of the capital securities of the
Trust and any other guarantees) if such guarantee ranks equal
or junior to the junior subordinated debentures other than:
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(a) dividends or distributions in shares of, or options, warrants
or rights to subscribe for or purchase shares of, our common
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 rights pursuant thereto;
(c) payments under the guarantee;
(d) as a result of a reclassification of our capital stock or the
exchange or conversion of one class or series of our capital stock
for another class or series of our capital stock;
(e) the purchase of fractional interests in shares of our capital
stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged; and
(f) purchases of our common stock related to the issuance of
common stock or rights under any of our benefit plans for our
directors, officers or employees or any of our dividend
reinvestment plans.
Before the end of any deferral period, we may extend the deferral
period, as long as no event of default exists and the extension does not
cause the deferral period to exceed 10 consecutive semi-annual periods, to
end on a date other than an interest payment date or to extend beyond
November 15, 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
rate of 9.875% per year, compounded semi-annually, to the extent permitted by
applicable law), we may elect to begin a new deferral period, subject to the
requirements set forth in this Prospectus. No interest will be due and
payable during a deferral period until the deferral period ends. We must give
the property trustee, the administrative trustees and the debenture trustee
notice of our election at least five business days before the earlier of:
- the date the distributions on the capital securities would
have been payable, except for the election to begin or extend
such deferral period;
- the date the administrative trustees are required to give
notice to any securities exchange or automated quotation
system on which the capital securities are listed or quoted or
to holders of capital securities of the record date for such
distributions; or
- the date such distributions are payable, but at least five
business days prior to the record date.
The debenture trustee will notify holders of the capital securities
of our election to begin or extend a new deferral period.
There is no limit on the number of times that we may elect to begin
a deferral period.
We do not currently intend to exercise our right to defer payments
of interest on the junior subordinated debentures.
OPTIONAL PREPAYMENT
The junior subordinated debentures will be prepayable, in whole or
in part, at our option on or after November 15, 2009, subject to our receipt
of any required regulatory approval, at an optional prepayment price equal to
the percentage of the outstanding principal amount of the junior subordinated
debentures specified below, plus, in each case, accrued and unpaid interest
on the junior subordinated
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debentures, if any, to the date of prepayment if redeemed during the 12-month
period beginning November 15 of the years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
<S> <C>
2009..................................................................104.938%
2010..................................................................104.444%
2011..................................................................103.950%
2012..................................................................103.457%
2013..................................................................102.963%
2014..................................................................102.469%
2015..................................................................101.975%
2016..................................................................101.481%
2017..................................................................100.988%
2018..................................................................100.494%
2019 and thereafter...................................................100.000%
</TABLE>
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, we may, at our option and at any time,
subject to our 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. The special
event prepayment price will be an amount equal to the greater of:
- 100% of the principal amount of the junior subordinated
debentures, or
- the sum, as determined by a quotation agent referred to below,
of the present values of the remaining scheduled payments of
principal and interest on the junior subordinated debentures
from the prepayment date to the maturity date, discounted to
the prepayment date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the adjusted
treasury rate,
plus, in the case of each of the above scenarios, accrued and unpaid interest
and liquidated damages, if any, to the date of prepayment.
A change in the bank regulatory law means our 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 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 the capital securities are first issued, the
capital securities do not constitute, or within 90 days of the opinion will
not constitute, Tier 1 Capital (or its then equivalent if we were subject to
such capital requirement).
A change in the investment company law means the receipt by us and
the Trust of an opinion of independent securities counsel experienced in such
matters to the effect that, as a result of:
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- 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 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 the capital securities are first issued, the
Trust is, or within 90 days of the date of the opinion 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 us and the Trust of an
opinion of independent tax 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 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 the capital 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 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 us on the junior subordinated debentures
is not, or within 90-days of the date of such opinion will not
be, deductible by us, 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 such
opinion, subject to more than a DE MINIMIS amount of other
taxes, duties or other governmental charges.
Adjusted treasury rate means, with respect to a prepayment date, the
rate per annum equal to:
- the yield, under the heading which represents the average for
the immediately prior week, appearing in the most recently
published statistical release designated "H.15 (519)" or any
successor publication which is published weekly by the Federal
Reserve Board and which establishes yields on actively traded
United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for
the maturity corresponding to the remaining life, as defined
below (if no maturity is within three months before or three
months after the maturity corresponding to the remaining life,
yields for the two published maturities most closely
corresponding to the remaining life shall be determined, and
the adjusted treasury rate shall be interpolated or
extrapolated from such yields on a straight-line basis,
rounding to the nearest month), or
- if such release (or any successor release) is not published
during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity to the comparable
treasury issue, calculated using a price for the
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comparable treasury issue (expressed as a percentage of
its principal amount) equal to the comparable treasury
price for such prepayment date,
plus: 320 basis points.
Comparable treasury issue means the United States Treasury security
selected by the quotation agent (defined below) having a maturity comparable
to the remaining life of the junior subordinated debentures that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining life. If no United States Treasury security has a
maturity which is within a period from three months before to three months
after the remaining life, the two most closely corresponding United States
Treasury securities, as selected by the quotation agent, shall be used as the
comparable treasury issue, and the adjusted treasury rate shall be
interpolated or extrapolated on a straight-line basis, rounding to the
nearest month, using such securities.
Comparable treasury price means, with respect to a prepayment date:
- the average of three reference treasury dealer quotations for
such prepayment date, after excluding the highest and lowest
such reference treasury dealer quotations, or
- if the quotation agent obtains fewer than five such reference
treasury dealer quotations, the average of all such reference
treasury dealer quotations.
Quotation agent means the reference treasury dealer appointed by us.
Reference treasury dealer means a nationally recognized U.S. Government
securities dealer in New York, New York selected by us.
Reference treasury dealer quotations means, with respect to each
reference treasury dealer and the prepayment date, the average, as determined
by the debenture trustee, of the bid and asked prices for the comparable
treasury issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the debenture trustee by such reference treasury
dealer at 5:00 p.m., New York time, on the third business day preceding such
prepayment date.
Remaining life means the term of the junior subordinated debentures
from the prepayment date to the maturity date.
We 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 we default in payment of the
prepayment price, on the prepayment date interest shall cease to accrue on
the junior subordinated debentures called for prepayment.
If the Trust is required to pay any additional taxes, duties or
other governmental charges as a result of a change in the tax law, we 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 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 OF INTERWEST BANCORP, INC.
We have agreed that we 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 our capital stock;
- make any payment of principal of, or interest or premium, if
any, on or repay, repurchase or redeem any of our debt
securities that rank equal or junior to the junior
subordinated debentures; or
- make any guarantee payments with respect to any of our
guarantees of the debt securities of any of our subsidiaries
if such guarantee ranks equal or junior to the junior
subordinated debentures, other than:
- dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase
shares of, our common stock;
- any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or
the issuance of common stock under any such plan in
the future, or the redemption or repurchase of any
such rights pursuant thereto;
- payments under the guarantee;
- as a result of a reclassification of our common
stock or the exchange or conversion of one class or
series of our common stock for another class or
series of our common stock;
- the purchase of fractional interests in shares of
our common stock pursuant to the conversion or
exchange provisions of such common stock or the
security being converted or exchanged; and
- purchases of our common stock related to the
issuance of common stock or rights under any of our
benefit plans for its directors, officers or
employees or any of our dividend reinvestment plans,
if at such time:
- we have 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 we have not taken
reasonable steps to cure;
- we are in default with respect to our payment of any
obligations under the guarantee; or
- we have given notice of our election to exercise our 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.
So long as the capital securities remain outstanding, we also have
agreed:
- to directly or indirectly maintain 100% direct or indirect
ownership of the common securities; PROVIDED, HOWEVER, that
any of our permitted successors under the Indenture may
succeed to our 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
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securities in liquidation of the Trust, the redemption of all
of the capital securities, or certain mergers, consolidations
or amalgamations, each as permitted by the trust agreement;
- 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;
- to use commercially reasonable efforts to cause each holder of
capital securities to be treated as owning an undivided
beneficial interest in the junior subordinated debentures; and
- to not cause, as sponsor of the Trust, or permit, as holder of
the common securities, the dissolution, winding-up or
liquidation of the Trust, except as provided in the trust
agreement.
MODIFICATION OF INDENTURE
From time to time, we, together with the debenture trustee, may,
without the consent of the holders of junior subordinated debentures, amend
the Indenture for specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies or enabling us and the Trust to
conduct an exchange offer as contemplated by the registration rights
agreement, provided that such amendments do not materially adversely affect
the interest of the holders of junior subordinated debentures. We, together
with the debenture trustee, may amend the Indenture, regardless of the effect
on the interests of the holders of the junior subordinated debentures, for
specific purposes including, among other things, to qualify, or to maintain
the qualification of, the Indenture under the Trust Indenture Act.
The Indenture permits us 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:
- 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 our
right under the Indenture to defer the payment of interest.
Please refer to "Option to Extend Interest Payment Date";
- change any of the prepayment provisions;
- 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:
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- our failure for 30 days to pay any interest (including
compounded interest and additional sums, if any), or
liquidated damages, if any, on the junior subordinated
debentures or any other similar debentures 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 similar debentures as the case may be);
- our failure to pay any principal or premium, if any, on the
junior subordinated debentures or any other similar debentures
when due whether at maturity, upon prepayment, by accelerating
the maturity or otherwise;
- our failure to observe or perform any other covenant contained
in the Indenture for 90 days after written notice to us from
the debenture trustee or to us 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 our 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 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.
Prior to any declaration accelerating the maturity of the junior
subordinated debentures 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 (including compounded interest and additional sums, if any),
or liquidated damages, if any, (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.
The Indenture requires that we 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, in certain
circumstances, withhold notice of a debenture event of default from the
holders of the junior subordinated debentures, including if the debenture
trustee considers it in the interest of the holders to do so.
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ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a debenture event of default exists that is attributable to our
failure to pay the principal of (or premium, if any) or interest (including
compounded interest and additional sums, if any), or liquidated damages, if
any, on the junior subordinated debentures on the due date, a holder of
capital securities may institute a direct action against us. We 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 we make to a holder of capital securities
in connection with a direct action, we shall remain obligated to pay the
principal of (and premium, if any) and interest on the junior subordinated
debentures, and we shall be subrogated to the rights of the holder of the
capital securities with respect to payments on the capital securities to the
extent that we make any payments to a holder in 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 subordinated debentures, unless an
event of default exists under the trust agreement. See "Description of
Capital Securities - Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that we will not consolidate with or merge
into any other person or convey, transfer or lease all or substantially all
of our properties to any person, and no person shall consolidate with or
merge into us or convey, transfer or lease all or substantially all of its
properties to us, unless:
- in case we consolidate with or merge into another person or
convey or transfer all or substantially all of our 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 our obligations under the
Indenture with respect to the junior subordinated debentures;
- 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.
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 we 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 debenture trustee for cancellation have become due and
payable or will become due and payable at maturity or called
for prepayment within one year, and
- we deposit or cause to be deposited with the debenture 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
debenture trustee for cancellation, for the principal (and
premium, if any) and interest (including compounded interest
and
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additional sums, if any) to the date of the deposit or to
November 15, 2029, as the case may be,
then the Indenture will cease to be of further effect (except as to our
obligations to pay all other sums due pursuant to the Indenture and to
provide the officers' certificates and opinions of counsel), and we will be
deemed to have satisfied and discharged the Indenture.
SUBORDINATION
We have promised that any of our junior subordinated debentures
issued under the Indenture will rank junior to all of our senior indebtedness
to the extent provided in the Indenture. Upon any payment or distribution of
our assets to creditors upon our liquidation, dissolution, winding up,
reorganization, assignment for the benefit of our creditors, marshaling of
our assets or any bankruptcy, insolvency, debt restructuring or similar
proceedings in connection with any insolvency or bankruptcy proceeding
involving us, the allocable amounts in respect of the senior indebtedness
must be paid in full all allocable amounts (as defined below) 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 allocable amounts in respect of
such 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 accelerates the maturity of the senior
indebtedness
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 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 us
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 or deferred compensation.
Indebtedness for money borrowed means any of our obligations or any
obligation guaranteed by us, 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
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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 our 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 such trust, partnership or other entity
affiliated with us, that is our financing vehicle (a
"financing entity"), in connection with the issuance by the
financing entity of equity securities or other securities
guaranteed by us pursuant to an instrument that ranks equal
to, with or junior to the guarantee; and 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
our 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.
We are a bank holding company and almost all of our operating assets
are owned by InterWest Bank, Pacific Northwest Bank and National Bank of
Tukwila. We rely primarily on dividends from our bank subsidiaries to meet
our obligations for payment of principal and interest on our outstanding debt
obligations and corporate expenses. We are a legal entity separate and
distinct from our subsidiaries. Holders of junior subordinated debentures
should look only to us for payments on the junior subordinated debentures.
There are regulatory limitations on the payment of dividends directly or
indirectly to us from our bank subsidiaries. See "- General." In addition, our
bank subsidiaries are subject to certain restrictions imposed by federal law
on any extensions of credit to, and certain other transactions with, us and
certain other affiliates, and on investments in stock or other securities
thereof. See "Regulation and Supervision" for a discussion of these dividend
and borrowing restrictions. Accordingly, the junior subordinated debentures
will be effectively subordinated to all existing and future liabilities of
our subsidiaries.
Also, as a bank holding company, our right to participate in any
distribution of assets of any subsidiary upon such subsidiary's liquidation
or reorganization or otherwise (and thus the ability of holders of the
capital securities to benefit indirectly from such distribution), is subject
to the prior claims of creditors of that subsidiary (including depositors, in
the case of our bank subsidiaries), except to the extent we may be recognized
as a creditor of that subsidiary. At September 30, 1999, our subsidiaries had
total liabilities, including deposits, of $2.4 billion. Accordingly, the
junior subordinated debentures will be effectively subordinated to all
existing and future liabilities of our subsidiaries (including deposit
liabilities of our bank subsidiaries) and all liabilities of any of our
future subsidiaries. The Indenture does not limit the incurrence or issuance
of other secured or unsecured debt of us or any subsidiary, including senior
indebtedness.
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RESTRICTIONS ON TRANSFER
The junior subordinated debentures may be transferred only in blocks
having an aggregate principal amount of not less than $100,000 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 will 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 junior
subordinated debentures for any purpose, including but not limited to the
receipt of payments on such junior subordinated debentures, and such
purported transferee shall be deemed to have no interest whatsoever in such
junior subordinated debentures.
GOVERNING LAW
The Indenture and the junior subordinated debentures will be
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 qualification 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 such 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.
DESCRIPTION OF GUARANTEE
WE WILL EXECUTE AND DELIVER THE SERIES B GUARANTEE AT THE SAME TIME
THE SERIES B CAPITAL SECURITIES ARE ISSUED. THIS SUMMARY OF THE MATERIAL
PROVISIONS OF THE GUARANTEE IS NOT COMPLETE AND IS SUBJECT TO, AND QUALIFIED
IN ITS ENTIRETY BY, THE GUARANTEE AND THE TRUST INDENTURE ACT. THE GUARANTEE
TRUSTEE WILL HOLD THE SERIES B GUARANTEE FOR THE BENEFIT OF THE HOLDERS OF
THE CAPITAL SECURITIES. YOU CAN OBTAIN A COPY OF THE SERIES B GUARANTEE BY
REQUESTING IT FROM INTERWEST BANCORP. WILMINGTON TRUST COMPANY WILL ACT AS
GUARANTEE TRUSTEE UNDER THE SERIES B GUARANTEE.
GENERAL
We irrevocably agree to pay in full on a subordinated basis, to the
extent set forth in this Prospectus, 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
securities), the lesser of (a) the liquidation distribution,
to the extent the Trust has funds legally available at that
time, and (b) the amount of assets of the Trust remaining
available for distribution to holders of capital
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securities after satisfying the liabilities owed to the
Trust's creditors as required by applicable law.
The guarantee will rank subordinate and junior to all senior
indebtedness to the extent provided in the guarantee. See "- Status of the
Guarantee." Our obligation to make a guarantee payment may be satisfied by
our 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 will be 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 we do not make payments on the junior subordinated debentures
held by the Trust, then it will not be able to make the related payments to
you on the capital securities and will not have funds legally available.
Please refer to the "Relationship among the Capital Securities, the
Subordinated Debentures and the Guarantee" section of this Prospectus. The
guarantee does not limit us from incurring or issuing other secured or
unsecured debt, including senior indebtedness, whether under the Indenture,
any other Indenture that we 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 our guarantee or to direct the exercise of any trust
power conferred upon the guarantee trustee under our guarantee. If the
guarantee trustee fails to enforce the guarantee, any holder of the capital
securities may institute a legal proceeding directly against us 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 we default on our 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 our 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 us 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 such 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, we will have a right of set-off under the
Indenture to the extent that we made any payment to the holder of capital
securities in the direct action. Except as described in this Prospectus,
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 by accepting the capital securities agrees to the provisions of
the guarantee and the Indenture.
We will, through our guarantee, the trust agreement, the junior
subordinated debentures and the Indenture, taken together, fully, irrevocably
and unconditionally guarantee 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 "Relationship among the Capital
Securities, the Junior Subordinated Debentures and the Guarantee" for more
information about our guarantee.
STATUS OF THE GUARANTEE
Our guarantee will constitute an unsecured obligation and will rank
subordinate and junior to all senior indebtedness in the same manner as the
junior subordinated debentures. See "Description of
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Junior Subordinated Debentures - Subordination." In addition, because we are a
holding company, our right to participate in any distribution of the assets
of our subsidiaries upon their liquidation or reorganization or otherwise is
subject to the prior claims of their creditors (including its depositors),
except to the extent we may be recognized as their creditor. Accordingly, our
obligations under the guarantee effectively will be subordinated to all
existing and future liabilities of our present and future subsidiaries
(including depositors of InterWest Bank, Pacific Northwest Bank, and National
Bank of Tukwila). As a result, claimants should look only to our assets for
payments under the guarantee. See "Description of Junior Subordinated
Debentures - General."
Our guarantee will rank equal to all of our other guarantees with
respect to preferred beneficial interests issued by other trusts. Our
guarantee of the Trust's capital securities does not limit the amount of
secured or unsecured debt, including senior indebtedness, which we or any of
our subsidiaries may incur. We expect from time to time that we will incur
additional indebtedness and that our subsidiaries will also incur additional
liabilities. Our guarantee will constitute a guarantee of payment and not of
collection, enabling the guaranteed party to institute a legal proceeding
directly against us to enforce their rights under the guarantee without first
instituting a legal proceeding against any other person or entity. Our
guarantee will be held for the benefit of the holders of the capital
securities. Our 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 we fail to
perform any of our payment or other obligations under the guarantee; except
that with respect to a default in payment of any guarantee payment, we shall
have received notice of default and shall not have cured the default within
60 days after receipt of the notice.
We, as guarantor, will be required to file annually with the
guarantee trustee a certificate regarding our compliance with the applicable
conditions and covenants under our 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
approval 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 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 our
successors, assigns, receivers, trustees and representatives and shall inure
to the benefit of the holders of the capital securities then outstanding.
TERMINATION OF THE GUARANTEE
Our guarantee will terminate and be of no further force and effect
upon:
- full payment of the applicable redemption price of all
outstanding capital securities;
- full payment of the liquidation amount payable upon
liquidation of the Trust; or
- distribution of junior subordinated debentures to the holders
of the capital securities.
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Our 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 guarantee trustee, except if we default under the guarantee,
will undertake to perform only such duties as are specifically set forth in
the guarantee and, in case a default with respect to the guarantee has
occurred, 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 of
the capital securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that it might incur.
GOVERNING LAW
The guarantee will be 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
We irrevocably guarantee payments of distributions and other amounts
due on the capital securities to the extent the Trust has funds legally
available to pay such amounts as and to the extent set forth under
"Description of Guarantee." Taken together, our obligations under the junior
subordinated debentures, the Indenture, the trust agreement and the guarantee
will 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 we do 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. Our guarantee will 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 against
us. Our obligations under the guarantee will be subordinate and junior to all
senior indebtedness.
SUFFICIENCY OF PAYMENTS
As long as we pay 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;
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- the interest rate and interest payment dates and other payment
dates on the junior subordinated debentures will match the
distribution rate and distribution dates and other payment
dates for the capital securities;
- as sponsor, we 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 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 us to enforce your rights under our 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 we
cannot make payments in respect of the junior subordinated debentures until
we have paid the senior indebtedness in full or we have cured any payment
default or a payment default has been waived. Our 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 will represent beneficial interests in the
Trust, and the Trust exists for the sole purpose of issuing and selling the
capital securities and the common securities, using the proceeds from the
sale of the capital securities and the common securities to acquire our
junior subordinated debentures and engaging in only those other activities
necessary, advisable or incidental thereto. 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 us the principal 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 us under our guarantee) if and to the extent
the Trust has funds legally available to pay the distributions.
RIGHTS UPON DISSOLUTION
Unless the junior subordinated debentures are distributed to holders
of the capital 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 will be entitled to receive, out of assets held by the
Trust, the liquidation distribution in cash. See "Description of Capital
Securities - Liquidation of the Trust and Distribution of Junior Subordinated
Debentures."
If we are voluntarily or involuntarily liquidated or bankrupted, the
property trustee, as holder of the junior subordinated debentures, would be
one of our subordinated creditors, 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 our stockholders receive
payments or distributions. Since we will be the guarantor under the guarantee
and will agree to pay all costs, expenses and liabilities of the Trust (other
than the Trust's obligations to the holders of its capital securities), the
positions of a holder of capital
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securities and a holder of junior subordinated debentures relative to other
creditors and to our stockholders in the event of our liquidation or
bankruptcy are expected to be substantially the same.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
In the opinion of Graham & Dunn PC, special federal income tax counsel
to us and the Trust, the following describes the material U.S. federal income
tax consequences of the purchase, ownership and disposition of a capital
security.
This summary addresses only the tax consequences to a person that
acquires a capital security on its original issuance at its original price and
that holds the security as a capital asset. This summary does not address all
tax consequences that may be applicable to a beneficial owner of a capital
security and does not address the tax consequences to holders subject to special
tax regimes (like banks, thrifts, real estate investment trusts, regulated
investment companies, insurance companies, dealers in securities or currencies,
tax-exempt investors or persons that will hold a capital security as a position
in a "straddle," as part of a "synthetic security" or "hedge" or as part of a
"conversion transaction" or other integrated investment). This summary does not
include any description of any alternative minimum tax consequences or the tax
laws of any state or local government or of any foreign government that may
apply to a capital security. This discussion is addressed to a U.S. Holder,
which is defined as a beneficial owner of a capital security that, for federal
income tax purposes, is (or is treated as):
- a citizen or individual resident of the United States;
- a corporation or partnership (or entity treated for federal
income tax purposes as a corporation or partnership) created
or organized in or under the laws of the United States or any
state (including the District of Columbia) or other political
subdivision thereof;
- an estate the income of which is includible in gross income
for 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 the administration of the
trust and one or more U.S. persons have the ability to control
all substantial decisions of the trust.
This summary does not address the special consequences to a non-U.S.
Holder who acquires a capital security. For purposes of this discussion, a
"Non-U.S. Holder" generally in any corporation, individual, partnership, estate
or trust that is not a U.S. Holder for federal income tax purposes.
This summary does not address the tax consequences to any shareholder,
partner or beneficiary of a holder of a capital security. This summary is based
on the Code, Treasury regulations thereunder and the administrative and judicial
interpretations thereof, as of the date hereof, all of which are subject to
change, possibly on a retroactive basis. An opinion of Graham & Dunn PC is not
binding on the IRS or the courts. No rulings have been or are expected to be
sought from the IRS with respect to any of the matters described in this
Prospectus. We can give no assurance that the opinions expressed herein will not
be challenged by the IRS or, if challenged, that the challenge will not be
successful.
Prospective investors are advised to consult with their own tax
advisors with respect to the tax consequences to them of the purchase, ownership
and disposition of the capital securities, including the tax consequences under
state, local, foreign, and other tax laws, and possible effects of changes in
such tax laws.
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EXCHANGE OF CAPITAL SECURITIES
The exchange of Series A capital securities for Series B capital
securities should not be a taxable event to holders for United States federal
income tax purposes. The exchange of Series A capital securities for Series B
capital securities pursuant to the exchange offer should not be treated as an
"exchange" for United States federal income tax purposes because the Series B
capital securities should not be considered to differ materially in kind or
extent from the Series A capital securities and because the exchange will occur
by operation of the terms of the Series A capital securities. If, however, the
exchange of the Series A capital securities for the Series B capital securities
were treated as an exchange for U. S. federal income tax purposes, such exchange
should constitute a recapitalization for federal income tax purposes.
Accordingly, the Series B capital securities should have the same issue price as
the Series A capital securities, and a holder should have the same adjusted tax
basis and holding period in the Series B capital securities as the holder had in
the Series A capital securities immediately before the exchange.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBENTURES
We take the position that the junior subordinated debentures will be
classified for U.S. federal income tax purposes as our indebtedness. We,
together with the Trust and the holders of the capital securities (by acceptance
of a beneficial interest in a capital security) will agree to treat the junior
subordinated debentures as our indebtedness for all U.S. federal income tax
purposes. We cannot be sure that this position will not be challenged by the IRS
or, if challenged, that the challenge will not be successful. The remainder of
this discussion assumes that the junior subordinated debentures will be
classified as our indebtedness for U.S. federal income tax purposes.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the capital securities, Graham &
Dunn PC will render its opinion that, under then current law and assuming full
compliance with the terms of the trust agreement and the Indenture (and certain
other documents), and based on certain facts and assumptions contained in that
opinion, the Trust will be classified for federal income tax purposes as a
grantor trust and not as an association taxable as a corporation. Accordingly,
for federal income tax purposes, the Trust will not be subject to federal income
tax, and each holder of a capital security will be required to include in its
gross income any interest (or accrued original issue discount), with respect to
its allocable share of the junior subordinated debentures.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under the Indenture, we have the right to defer the payment of interest
on the junior subordinated debentures at any time or from time to time for one
or more deferral periods not exceeding 10 consecutive semi-annual periods each,
provided that no deferral period shall end on a date other than an interest
payment date or extend beyond November 15, 2029. By reason of that right, the
Treasury regulations will subject the junior subordinated debentures to the
rules in the Code and Treasury regulations on debt instruments issued with
original issue discount, unless the Indenture or junior subordinated debentures
contain terms or conditions that make the likelihood of exercise of the deferral
option remote. Under the Treasury regulations, a "remote" contingency that
stated interest will not be timely paid will be ignored in determining whether a
debt instrument is issued with original issue discount. Although the answer is
not clear, we believe that the likelihood that we would exercise our option to
defer payments of interest is "remote" since exercising that option would, among
other things, prevent us from declaring dividends on any class of our equity
securities. Accordingly, we intend to take the position that the junior
subordinated debentures will not be considered to be issued with original issue
discount and, accordingly, stated interest on the junior subordinated debentures
generally will be
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taxable to a holder as ordinary income at the time it is paid or accrued in
accordance with such holder's method of accounting.
Under the Treasury regulations, if we were to exercise our option to
defer payments of interest, the junior subordinated debentures would at that
time be treated as issued with original issue discount, and all stated interest
on the junior subordinated debentures would thereafter be treated as original
issue discount as long as the junior subordinated debentures remain outstanding.
If this occurred, all of a holder's interest income with respect to the junior
subordinated debentures would thereafter be accounted for on an economic accrual
basis regardless of such holder's method of tax accounting, and actual
distributions of stated interest would not be reported as taxable income.
Consequently, a holder of a capital security would be required to include in
gross income original issue discount even though we would not make actual cash
payments during a deferral period. The amount of such includible original issue
discount could be significant. Also, under the Treasury regulations, if the
option to defer the payment of interest were determined not to be "remote," the
junior subordinated debentures would be treated as having been originally issued
with original issue discount. In such event, a holder would be required to
include in gross income an amount of original issue discount each taxable year
that approximates the amount of interest that accrues on the junior subordinated
debentures at the stated interest rate, regardless of such holder's method of
tax accounting, and actual cash payments of interest on the junior subordinated
debenture would not be separately includible in gross income. It is possible
that the IRS could take a position contrary to the interpretation described in
this Prospectus.
Because income on the capital securities will constitute interest or
original issue discount, corporate holders of the capital securities will not be
entitled to a dividends-received deduction with respect to any income recognized
with respect to the capital securities.
RECEIPT OF JUNIOR SUBORDINATED DEBENTURE OR CASH UPON LIQUIDATION OF THE TRUST
We have the right at any time to liquidate the Trust and cause the
junior subordinated debentures to be distributed to the holders of the trust
securities. Under current law, the liquidation of the Trust and the distribution
of the junior subordinated debentures to trust security holders, for federal
income tax purposes, would be treated as a nontaxable event to each holder, and
the aggregate tax basis in the junior subordinated debentures received by such
holder would be equal to the holder's aggregate tax basis in its capital
securities surrendered. A holder's holding period in the junior subordinated
debentures received in liquidation of the Trust would be the same as the holding
period that the holder had in the capital securities surrendered.
The junior subordinated debentures may be prepaid in cash, and the
proceeds of that prepayment would be distributed to holders in redemption of
their capital securities. Under current law, that redemption would constitute,
for U.S. federal income tax purposes, a taxable disposition of the redeemed
capital securities, the tax consequences of which are described below under
"Sales or Redemptions of Capital Securities."
SALES OR REDEMPTIONS OF CAPITAL SECURITIES
On a sale or redemption of a capital security for cash, a holder will
recognize gain or loss equal to the difference between its adjusted tax basis in
the capital security and the amount realized on the sale or redemption of that
capital security. If the rules regarding original issue discount do not apply, a
holder's adjusted basis in a capital security generally will be its initial
purchase price, and if the holder uses an accrual method of accounting, the
holder's basis will be increased by any accrued but unpaid interest. If the
rules regarding original issue discount apply, a holder's adjusted basis in a
capital security generally will be its initial purchase price increased by any
original issue discount previously included in the holder's gross income to the
date of disposition and decreased by any payments received with respect to
original issued discount on the capital security. Gain or loss recognized on a
sale or redemption of a
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capital security will be capital gain or loss. Capital gain recognized by an
individual in respect of a capital security held for more than one year as of
the date of sale or redemption is subject to a maximum federal income tax rate
of 20 percent.
The capital securities may trade at a price that discounts any accrued
but unpaid interest on the junior subordinated debentures. Therefore, the amount
realized by a holder who disposes of a capital security between distribution
payment dates and whose adjusted basis in the capital security has been
increased by the amount of any accrued but unpaid original issue discount (or
interest) may be less than the holder's adjusted basis in the capital security.
In that case, the holder will recognize a capital loss. Subject to a limited
exception in the case of individual taxpayers, capital losses cannot be applied
to offset ordinary income for federal income tax purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest, including original issue discount, accrued on
capital securities held of record by U.S. persons (other than corporations and
other exempt holders) will be reported to the IRS. "Backup" withholding at a
rate of 31% will apply to payments of interest to non-exempt U.S. persons unless
the holder furnishes its taxpayer identification number in the manner prescribed
in applicable Treasury regulations, certifies that the number is correct,
certifies as to no loss of exemption from backup withholding and meets certain
other conditions.
Payment of the proceeds from the disposition of capital securities to
or through the United States office of a broker is subject to information
reporting and backup withholding unless the holder or beneficial owner
establishes an exemption from information reporting and backup withholding.
Any amount withheld from a holder under the backup withholding rules
will be allowed as a refund or credit against such holder's federal income tax
liability, provided the required information is furnished to the IRS.
It is anticipated that income on capital securities will be reported to
holders on Form 1099 (or any successor form) and mailed to holders of capital
securities by January 31 following each calendar year.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR
GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S
PARTICULAR SITUATION. YOU SHOULD CONSULT YOUR TAX ADVISER WITH RESPECT TO THE
TAX CONSEQUENCES TO YOU OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF A CAPITAL
SECURITY, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER
TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
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ERISA CONSIDERATIONS
GENERAL
In evaluating the purchase of capital securities, a fiduciary of a
qualified profit-sharing, pension or stock bonus plan, including a plan for
self-employed individuals and their employees or any other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), a collective investment fund or separate account in which such plans
invest and any other investor using assets that are treated as assets of an
employee benefit plan subject to ERISA (each, a "Plan" and collectively,
"Plans") should consider:
- whether the ownership of capital securities is in accordance
with the documents and instruments governing such Plan;
- whether the ownership of capital securities is solely in the
interest of Plan participants and beneficiaries and otherwise
consistent with the fiduciary's responsibilities and in
compliance with the requirements of Part 4 of Title I of
ERISA, including, in particular, the diversification, prudence
and liquidity requirements of Section 404 of ERISA and the
prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code;
- whether the assets of the Trust are treated as assets of the
Plan; and
- the need to value the assets of the Plan annually.
In addition, the fiduciary of an individual retirement arrangement under 408 of
the Code (an "IRA") considering the purchase of capital securities should
consider whether the ownership of the capital securities would result in a
non-exempt prohibited transaction under Section 4975 of the Code.
Governmental plans and certain church plans (each as defined under
ERISA) are not subject to the prohibited transaction rules. Such plans may,
however, be subject to federal, state or local laws or regulations which may
affect their investment in the capital securities. Any fiduciary of such a
governmental or church plan considering an investment in the capital securities
should determine the need for, and the availability, if necessary, of any
exemptive relief under such laws or regulations.
The fiduciary investment considerations summarized below provide a
general discussion that does not include all of the fiduciary investment
considerations relevant to Plans and, where indicated, IRAs. This summary is
based on the current provisions of ERISA and the Code and regulations and
rulings thereunder, and may be changed (perhaps adversely and with retroactive
effect) by future legislative, administrative or judicial action.
Plans and IRAs that are prospective purchasers of capital securities
should consult with and rely upon their own advisors in evaluating these matters
in light of their own particular circumstances.
PLAN ASSET REGULATION
Under Department of Labor regulations governing what constitutes the
assets of a Plan or IRA ("Plan Assets") for purposes of ERISA and the related
prohibited transaction provisions of the Code (the "Plan Asset Regulation," 29
C.F.R. Sec. 2510.3-101), when a Plan or IRA acquires an equity interest in
another entity, and such interest does not represent a "publicly offered
security" nor a security issued by an investment company registered under the
1940 Act, the Plan's assets include both the equity interest and an undivided
interest in each of the underlying assets of the entity, unless it is
established either that the entity is an operating company or that equity
participation in the entity by "benefit plan investors," as
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defined in the Plan Assets Regulation, is not "significant." For purposes of
the Plan Asset Regulation, the Trust will be neither an investment company nor
an operating company.
Under the Plan Asset Regulation, equity participation by benefit plan
investors will not be considered "significant" on any date only if immediately
after the most recent acquisition of the capital securities, the aggregate
interest in the capital securities held by benefit plan investors will be less
than 25% of the aggregate outstanding principal amount of the capital
securities. Although it is possible that the equity participation by benefit
plan investors on any date will not be "significant" for purposes of the Plan
Asset Regulation, such a result cannot be assured. Consequently, if Plans, IRAs
or investors using assets of Plans purchase the capital securities, the Trust's
assets could be deemed to be "plan assets" of such Plans and/or IRAs for
purposes of the fiduciary responsibility provisions of ERISA and the prohibited
transactions rules of ERISA and the Code. Under ERISA and the Code, any person
who exercises any authority or control respecting the management or disposition
of the assets of a Plan or IRA is considered to be a fiduciary of such Plan or
IRA. The property trustee of the Trust could therefore become a fiduciary of the
Plans and IRAs that invest in the capital securities and be subject to the
general fiduciary requirements of ERISA in exercising its authority with respect
to the management of the assets of the Trust. However, the property trustee will
have only limited discretionary authority with respect to the Trust assets and
the remaining functions and responsibilities performed by the property trustee
will be for the most part custodial and ministerial in nature.
PROHIBITED TRANSACTIONS
Each of the Trust, InterWest Bancorp (the obligor with respect to the
junior subordinated debentures held by the Trust) and their affiliates or the
property trustee may be a party in interest or a disqualified person with
respect to a Plan or IRA investing in the capital securities. Therefore, such
investment by a Plan or IRA may give rise to a prohibited transaction.
Consequently, before investing in the capital securities or acquiring junior
subordinated debentures, any person who is, or who is acquiring such securities
for, or on behalf of, a Plan or IRA should determine that either a statutory or
an administrative exemption from the prohibited transaction rules discussed
below or otherwise available is applicable to such investment in the capital
securities, or that such investment in, or acquisition of, such securities will
not result in a non-exempt prohibited transaction.
The statutory or administrative exemptions from the prohibited
transaction rules under ERISA and the Code which may be available to a Plan or
IRA, which is investing in the capital securities include the following
(collectively referred to as the "ERISA Investor Exemptions"):
- Prohibited Transaction Class Exemption ("PTCE") 90-1,
regarding investments by insurance company pooled separate
accounts;
- PTCE 91-38, regarding investments by bank collective
investment funds;
- PTCE 84-14, regarding transactions effected by qualified
professional asset managers;
- PTCE 96-23, regarding transactions effected by in-house asset
managers; and
- PTCE 95-60, regarding investments by insurance company general
accounts.
No person who is, or who in acquiring capital securities is using the
assets of, a Plan or IRA may acquire capital securities unless one of the ERISA
Investor Exemptions or another applicable exemption is available to the Plan or
IRA, or such acquisition or holding of the capital securities will not result in
a non-exempt Prohibited Transaction. The acquisition of the capital securities
by any person who is, or who in acquiring such capital securities is using the
assets of, a Plan or IRA shall be deemed to constitute
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a representation by such person to the trustee of the Trust, InterWest Bancorp
and the initial purchasers either that:
- it is not a Plan, IRA, trustee or other person acting on
behalf of a Plan or IRA or other person or entity using the
assets of any Plan or IRA to finance such purchase; or
- such acquisition will not result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code for
which there is no applicable statutory or administrative
exemption.
In the case of capital securities delivered in certificated form, the
purchaser will be required to make such representation, in writing, to the
property trustee of the Trust, InterWest Bancorp and the initial purchasers.
The discussion of ERISA in this Prospectus is general in nature and is
not intended to be all inclusive. Any fiduciary of a plan, IRA, governmental
plan or church plan considering an investment in the capital securities should
consult with its legal advisors regarding the consequences of such investment
and consider whether the Plan or IRA can make the representations noted above.
Further, the sale of investments to Plans and IRAs is in no respect a
representation by the Trust, InterWest Bancorp, the property trustee, the
initial purchasers or any other person associated with the sale of the capital
securities that such securities meet all relevant legal requirements with
respect to investments by Plans and IRAs generally or any particular Plan, or
that such securities are otherwise appropriate for Plans and IRAs generally or
any particular Plan.
Any purchaser proposing to acquire capital securities with assets of
any Plan or IRA should consult with its counsel.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives Series B 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 Series B 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 Series B capital securities received in
exchange for Series A capital securities if such Series A capital securities
were acquired by such participating broker-dealers for their own accounts as a
result of market-making activities or other trading activities. InterWest
Bancorp and InterWest Capital Trust I 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 Series B 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
Series B 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 Series B capital securities received
in exchange for Series A capital securities pursuant to the exchange offer must
notify InterWest Bancorp or InterWest Capital Trust I, or cause InterWest
Bancorp or InterWest Capital Trust I 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." See "The Exchange Offer - Resales
of Series B Capital Securities."
InterWest Bancorp or InterWest Capital Trust I will not receive any
cash proceeds from the issuance of the Series B capital securities offered
hereby. Series B 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 Series B 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 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 Series B capital securities.
Any broker-dealer that resells Series B 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 Series B capital
securities may be deemed to be an "underwriter" within the meaning of the
Securities Act, and any profit on any such resale of Series B 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.
LEGAL MATTERS
Certain matters relating to (1) the validity of the Series B
guarantee and the Series B debentures and (2) United States federal income tax
considerations will be passed upon for us by Graham & Dunn PC. Certain matters
of Delaware law relating to the validity of the Series B capital securities will
be passed upon on behalf of us and the Trust by Morris, James, Hitchens &
Williams LLP, special Delaware counsel to the Trust and us.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our
consolidated financial statements included in our Annual Report on Form 10-K
for the year ended September 30, 1999, as set forth in their report, which is
incorporated by reference in this Prospectus and elsewhere in the
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Registration Statement. Our consolidated financial statements are incorporated
by reference in reliance on Ernst & Young LLP's report, given on their
authority as experts in accounting and auditing.
RATINGS
The capital securities have been rated "BBB-" by Thomson Financial Bank
Watch. The rating of Thomson Financial assigned to the capital securities
address the likelihood of your receipt of all payments to which such capital
securities are entitled. The rating process addresses the structural and legal
aspects associated with the capital securities. In the event that the ratings
initially assigned to the capital securities are subsequently lowered for any
reason, no person or entity is obligated to provide any additional credit
support or credit enhancement with respect to the capital securities.
If another rating agency were to rate the capital securities, such rating agency
may assign a rating different from the rating described above. A security rating
is not a recommendation to buy, sell or hold securities and may be subject to
revision or withdrawal at any time by the assigning rating organization.
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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 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.................. 1
Summary.............................................. 2
Summary Selected Consolidated
Financial Data................................... 6
Recent Developments.................................. 7
Forward Looking Statements........................... 8
Use of Proceeds...................................... 9
Accounting Treatment................................. 9
Capitalization....................................... 10
Regulatory Capital................................... 11
InterWest Bancorp, Inc............................... 12
Regulation and Supervision........................... 13
InterWest Capital Trust I............................ 15
Exchange Offer....................................... 16
Description of Series B Securities................... 26
Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee........ 58
Certain Federal Income Tax Consequences.............. 61
ERISA Considerations................................. 65
Plan of Distribution................................. 68
Legal Matters........................................ 68
Experts.............................................. 68
Ratings.............................................. 69
</TABLE>
==========================================================
==========================================================
INTERWEST CAPITAL TRUST I
OFFER TO EXCHANGE
9.875% CAPITAL SECURITIES, SERIES B
FOR ANY AND ALL OF ITS OUTSTANDING
9.875% CAPITAL SECURITIES, SERIES A
FULLY AND UNCONDITIONALLY
GUARANTEED, AS DESCRIBED
IN THIS PROSPECTUS, BY
[LOGO]
INTERWEST BANCORP, INC.
______________________________
PROSPECTUS
______________________________
February 23, 2000
==========================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to InterWest's articles of incorporation, InterWest will,
to the fullest extent permitted by the WBCA, indemnify the officers,
directors, agents and employees of InterWest with respect to expenses,
settlements, judgments and fines in suits in which such person was made a
party by reason of the fact that he or she is or was an agent of InterWest.
No such indemnification may be given if the acts or omissions of the person
are adjudged to be in violation of law, if such person is liable to the
corporation for an unlawful distribution, or if such person personally
received a benefit to which he or she was not entitled. In addition,
InterWest's articles of incorporation provide that the directors of InterWest
shall not be personally liable for monetary damages to InterWest for certain
breaches of their fiduciary duty as directors, except for liabilities that
involve intentional misconduct by the director, the authorization or illegal
distributions or receipt of an improper personal benefit from their actions
as directors. This provision might, in certain instances, discourage or deter
stockholders or management from bringing a lawsuit against directors for a
breach of their duties even though such an action, if successful, might have
benefited InterWest.
In addition to the indemnification provisions set forth in
InterWest's Articles, InterWest has entered into separate Indemnity
Agreements with each of the directors of InterWest and InterWest Bank that
provide for the indemnification of such directors by InterWest to the fullest
extent allowed by the WBCA. The Indemnity Agreements indemnify each director
and hold such director harmless against any loss arising from a claim or
action relating to his or her services as a director. The Indemnity
Agreements further provide that InterWest will advance sufficient funds as
may be necessary to investigate or defend claims against a director, and to
reimburse funds that may be incurred by the director, with the proviso that
the director will reimburse InterWest any expenses paid to such director in
the event it is later determined that the payment of such sums were not
allowable under Washington law.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The exhibits are listed on the accompanying "Exhibit Index."
(b) Financial Statement Schedules. None.
ITEM 22. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or
sells securities, a post-effective amendment to this
registration statement to;
(i) Include any Prospectus required by Section
10(a)(3) of the 1933 Act;
(ii) Reflect in the Prospectus any facts or events
which, individually or together, represent a fundamental change in the
information 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 SEC 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
<PAGE>
(iii) Include any additional or changed information on
the plan of distribution;
(2) For determining liability under the 1933 Act, to treat
each such post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time shall be
deemed to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
(b) To advise all directors and officers that insofar as
indemnification for liabilities arising under the 1933 Act may be permitted to
directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable.
(c) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the Prospectus
pursuant to Item 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.
(d) The undersigned registrant 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the 1933 Act, the Registrant has
duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Oak Harbor,
Washington on February 23, 2000.
INTERWEST BANCORP, INC.
By: /s/ Stephen M. Walden
------------------------------------
Stephen M. Walden
President and Chief Executive Officer
Pursuant to the requirements of the 1933 Act, this Amendment to the
Registration Statement has been signed by the following persons in the
capacities indicated, on the 23rd day of February, 2000.
SIGNATURE TITLE
President, Chief Executive
/s/ Stephen M. Walden Officer and
- -------------------------------------------- Director (Principal Executive
Stephen M. Walden Officer)
/s/ H. Glenn Mouw Executive Vice President
- -------------------------------------------- (Principal Financial Officer)
H. Glenn Mouw
/s/ Eric D. Jensen Chief Accounting Officer
- -------------------------------------------- (Principal Accounting Officer)
Eric D. Jensen
/s/ Barney R. Beeksma Chairman of the Board
- --------------------------------------------
Barney R. Beeksma
* Director
- --------------------------------------------
Gary M. Bolyard
* Director
- --------------------------------------------
Larry Carlson
* Director
- --------------------------------------------
Michael T. Crawford
* Director
- --------------------------------------------
Patrick M. Fahey
<PAGE>
* Director
- --------------------------------------------
Jean Gorton
* Director
- --------------------------------------------
Stephen Lewis
* Director
- --------------------------------------------
Clark H. Mock
* Director
- --------------------------------------------
Russel E. Olson
* Director
- --------------------------------------------
Vern Sims
* By: /s/ Stephen M. Walden
--------------------------------
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
<S> <S>
3.1 Restated Articles of Incorporation of InterWest Bancorp (1)
3.2 First Amendment to Articles of Incorporation of InterWest
Bancorp, Inc. (2)
3.3 Bylaws of InterWest Bancorp (3)
*4.1 Indenture of InterWest Bancorp relating to the Debentures
*4.2 Form of Certificate of Series B Debenture (4)
*4.3 Certificate of Trust of InterWest Capital Trust I
*4.4 Amended and Restated Declaration of Trust of InterWest Capital Trust I
*4.5 Form of Series B Capital Security Certificate (5)
*4.6 Form of Series B Guarantee of InterWest Bancorp relating to the Series B Capital Securities
*4.7 Registration Rights Agreement among InterWest Bancorp, InterWest Capital Trust I, Sandler O'Neill &
Partners, L.P. and Keefe, Bruyette & Woods, Inc.
5.1 Opinion of Morris, James, Hitchens & Williams LLP as to the legality of securities.
5.2 Opinion of Graham & Dunn, P.C. as to federal income tax consequences.
23.1 Consent of Morris, James, Hitchens & Williams LLP, as to its legal opinion (contained in
its opinion filed as Exhibit 5.1)
23.2 Consent of Graham & Dunn, P.C. as to its legal opinion (contained in its opinion filed as Exhibit 5.2)
23.3 Consent of Independent Auditors
*24.1 Power of Attorney
25.1 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Amended and Restated
Declaration of Trust of InterWest Capital Trust I
25.2 Form T-1 Statement of Eligibility of Wilmington Trust Company under the Series B guarantee for the benefit of
the holders of Series B Capital securities of InterWest Capital Trust I
25.3 Form T-1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Indenture
99.1 Letter of Transmittal
99.2 Notice of Guaranteed Delivery
</TABLE>
- -------------------
* Previously filed as an exhibit to this Registration Statement on Form S-4
on February 11, 2000
(1) Previously filed as Exhibit 3.1 to the Registrant's Annual Report on Form
10-K for the year ended September 30, 1998.
(2) Previously filed as Exhibit 3.2 to the Registrant's Annual Report on Form
10-K for the year ended September 30, 1998.
(3) Previously filed as Exhibit 3.3 to the Registrant's Annual Report on Form
10-K for the year ended September 30, 1998.
(4) Included in Exhibit 4.1 as Exhibit A thereto.
(5) Included in Exhibit 4.4 as Exhibit A-1 thereto.
<PAGE>
Exhibit 5.1
February 24, 2000
Interwest Capital Trust I
c/o InterWest Bancorp, Inc.
275 Southeast Pioneer Way
Oak Harbor, Washington 98277
Re: INTERWEST CAPITAL TRUST I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Interwest Capital Trust I,
a Delaware business trust (the "Trust"), for purposes of giving the opinions
set forth herein. This opinion letter is being furnished to you at your
request.
For purposes of giving the opinions set forth below, our examination of
documents has been limited to the examination of originals or copies
furnished to us of the following:
(a) The Declaration of Trust of the Trust, dated as of November 3,
2000, between Astoria Financial Corporation (the "Company") and the trustee
of the Trust named therein;
(b) The Certificate of Trust of the Trust, as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
November 3, 2000 (the "Certificate");
(c) The Amended and Restated Declaration of Trust of the Trust, dated
as of November 15, 2000 (the "Declaration"), among the Company, as Sponsor,
the trustees of the Trust named therein (the "Trustees") and the holders,
from time to time, of undivided beneficial interests in the assets of the
Trust;
<PAGE>
Interwest Capital Trust
February 24, 2000
Page 2
(d) A Registration Statement (the "Initial Registration Statement") on
Form S-4 (Registration No. 333-30192) filed with the Securities and Exchange
Commission on February 11, 2000, as amended by Amendment No. 1 to the Initial
Registration Statement, including a prospectus (the "Prospectus"), to be filed
with the Securities and Exchange Commission on or about February 24, 2000
("Amendment No. 1") (the Initial Registration Statement as amended by
Amendment No. 1 is hereinafter referred to as the "Registration Statement")
relating to the 9.875% Capital Securities, Series B (Liquidation Amount $1,000
per Capital Security) of the Trust representing undivided preferred beneficial
interests in the assets of the Trust (each, an "Exchange Capital Security" and
collectively, the "Exchange Capital Securities"); and
(e) A Certificate of Good Standing for the Trust, dated February 24,
2000, obtained from the Secretary of State.
Unless otherwise defined herein, all capitalized terms used in this
opinion letter shall have the respective meanings provided in the
Declaration, except that reference herein to any document shall mean such
document as in effect on the date hereof.
For the purposes of this opinion letter, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e)
above. In particular, we have not reviewed any document (other than the
documents listed in paragraphs (a) through (e) above) that is referred to in
or incorporated by reference into the documents reviewed by us. We have
assumed that there exists no provision in any document that we have not
reviewed that bears upon or is inconsistent with or contrary to the opinions
stated herein. We have conducted no 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 letter, we have assumed (i) that the
Declaration 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 Declaration
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,
due formation or due organization, 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, formation or organization, (iii) the
legal capacity of each natural person who is a party to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has all requisite power and authority to execute and deliver, and to perform
its obligations under, such documents, (v) that each of the parties to the
documents examined by us has duly authorized, executed and delivered such
documents, (vi) the receipt by each Person to whom an Exchange
<PAGE>
Interwest Capital Trust
February 24, 2000
Page 3
Capital Security is to be issued by the Trust (the "Exchange Capital Security
Holders") of an appropriate certificate for such Exchange Capital Security
and the exchange by each Exchange Capital Security Holder of its validly
issued Series A Capital Securities accepted for exchange for the Exchange
Capital Securities to be issued to it, in accordance with the Declaration and
the Registration Statement, and (vii) that the Exchange Capital Securities
are issued to the Exchange Capital Security Holders in accordance with the
Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for
its contents.
The opinions in this letter are limited to the laws of the State of
Delaware (other than the securities laws of the State of Delaware) and we
have not considered and express no opinion on the effect of or concerning
matters involving the laws of any other jurisdiction, or rules, regulations,
orders and judicial and administrative decisions relating to such laws,
including, without limitation, the federal laws of the United States of
America.
Based upon the foregoing, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act 12 DEL. C.
SECTIONS 3801, ET SEQ.
2. The Exchange 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 Exchange 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 Exchange
Capital Security Holders may be obligated to make payments and provide
indemnity and/or security as set forth in the Declaration.
We consent to the filing of this opinion letter with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In giving
the foregoing consent, 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
<PAGE>
Interwest Capital Trust
February 24, 2000
Page 4
Securities and Exchange Commission thereunder. Except as stated above,
without our prior written consent, this opinion letter may not be furnished
or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
Morris, James, Hitchens & Williams LLP
<PAGE>
EXHIBIT 5.2
[LETTERHEAD OF GRAHAM & DUNN PC]
February 22, 1999
InterWest Bancorp, Inc.
InterWest Capital Trust I
275 Southeast Pioneer Way
Oak Harbor, Washington 98277
RE: INTERWEST CAPITAL TRUST I
9.875% CAPITAL SECURITIES, SERIES A
Ladies and Gentlemen:
We have acted as special counsel to InterWest Bancorp, a Washington
corporation (the "Corporation"), and InterWest Capital Trust I, a Delaware
statutory business trust (the "Trust"), in connection with the registration and
offering of (i) up to 40,000 of the Trust's 9.875% Capital Securities, Series B
(liquidation amount of $1,000 per capital security) (the "Series B Capital
Securities"); (ii) the Series B Capital Securities Guarantee Agreement, dated as
of November 15, 1999 (the "Series B Capital Securities Guarantee"), between the
Corporation and Wilmington Trust Company, as Guarantee Trustee, and (iii) up to
$41,238,000 aggregate principal amount of the Corporation's 9.875% Junior
Subordinated Deferrable Interest Debentures due November 15, 2029, Series B (the
"Series B Subordinated Debentures"). The Series B Capital Securities, the Series
B Capital Securities Guarantee and the Series B Subordinated Debentures
(collectively, the "Series B Securities") are being offered pursuant to the
Registration Rights Agreement, dated as of November 9, 1999 (the "Registration
Rights Agreement"), by and among the Trust, the Corporation and the Initial
Purchasers named therein. The Registration Rights Agreement relates, in part, to
the offer to exchange (the "Exchange Offer") (i) the Series B Capital Securities
for all of the issued and outstanding 9.875% Capital Securities, Series A
(liquidation amount of $1,000 per capital security), of the Trust and (ii) the
Series B Subordinated Debentures for all of the issued and outstanding 9.875%
Junior Subordinated Deferrable Interest Debentures due November 15, 2029, Series
A of the Corporation (the "Series A Subordinated Debentures").
The Series B Capital Securities represent preferred beneficial
interests in the assets of the Trust under the Amended and Restated Declaration
of Trust, dated as of November 15, 1999 (the "Amended Declaration"), by and
among the Corporation, Wilmington Trust Company, as Property Trustee (the
"Property Trustee"), Wilmington Trust Company, as Delaware Trustee (the
"Delaware Trustee"), and the Administrative Trustees named therein.
<PAGE>
The Series B Subordinated Debentures will be issued pursuant to the
Indenture, dated as of November 15, 1999 (the "Indenture"), between the
Corporation and Wilmington Trust Company, as Debenture Trustee.
A. TRANSACTION DOCUMENTS AND MATTERS EXAMINED
1. In rendering the opinions expressed in this letter, we have examined
such records, documents, instruments, agreements, certificates of public
officials and certificates of the Corporation and the Trust as we have deemed
appropriate, including: (i) the Articles of Incorporation of the Corporation;
(ii) the Bylaws of the Corporation; (iii) certain resolutions duly adopted by
the Board of Directors of the Corporation relating to the Exchange Offer; (iv)
the Registration Statement on Form S-4 (the "Registration Statement"), prepared
by the Corporation and the Trust in connection with the Exchange Offer; (v) the
Declaration of Trust, dated as of November 3, 1999, by and between the
Corporation and the Delaware Trustee, as amended (the "Declaration; (vi) the
Series B Capital Securities Guarantee Agreement; (vii) the Indenture; and (viii)
the Registration Rights Agreement.
The Indenture, the Declaration, the Amended Declaration, the
Registration Rights Agreement, and the Series B Capital Securities Guarantee
Agreement are collectively referred to in this letter as the "Operative
Documents." We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents, certificates and
records as we have deemed necessary or appropriate as a basis for the opinions
set forth herein.
B. ASSUMPTIONS
For purposes of this opinion letter, we have relied, without
investigation, on the assumptions contained in Section 4 of the Legal Opinion
Accord of the ABA Section of Business Law (1991) (the "Accord").
C. OPINIONS
Based on the foregoing examinations and assumptions and subject to the
qualifications and exclusions stated below, we are of the opinion that:
1. The Series B Guarantee has been duly authorized, and when executed
and delivered by the Corporation, will constitute a valid and binding agreement
of the Corporation.
2. The Series B Subordinated Debentures have been duly authorized for
issuance by the Corporation pursuant to the Indenture. The Series B Subordinated
Debentures, when executed and authenticated in accordance with the provisions of
the Indenture, and delivered in exchange for the Series A Subordinated
Debentures in the manner provided for in the Exchange Offer as contemplated in
the Registration Rights Agreement, will constitute valid and binding obligations
of the Corporation.
<PAGE>
D. QUALIFICATIONS
The opinions expressed in this letter are subject to the following
limitations and qualifications:
A. Our opinion is limited to the laws of the State of Washington and
the federal laws of the United States. The Declaration and the Amended
Declaration each state that it is governed by the law of the State of Delaware;
each of the remaining Operative Documents state that it is governed by the law
of the State of New York. Consequently, we have not examined the question of
what law would govern the interpretation or enforcement of such document, and
our opinion, to the extent it relates to any of the Operative Documents, is
based upon the assumption that the laws of the States of Delaware and New York,
as applicable, are identical to the laws of the State of Washington. To the
extent that our opinion otherwise relates to the laws of any jurisdictions other
than the State of Washington and the federal laws of the United States, we have
assumed that such laws are in all relevant respects identical to the laws of the
State of Washington. We note that if an Operative Document is not, in fact,
valid, binding, and enforceable under the laws of the State of Delaware or the
State of New York, as applicable, we give no opinion as to whether the Operative
Document would be enforced by a State of Washington court under applicable
conflict of law principles. We express no opinion as to whether a court located
in the State of Washington would hold that the State of Washington is a proper
forum in which to enforce an Operative Document.
B. Our opinion in paragraph 1 with respect to the Series B Guarantee,
and in paragraph 2 with respect to the Series B Subordinated Debentures, being
valid and binding obligations of the Corporation is limited as follows:
(1) The enforceability of indemnification provisions in
such documents may be limited by federal or state
securities laws.
(2) We express no opinion regarding the effect, if any,
of any matter which may be (i) limited by bankruptcy,
insolvency, or similar laws relating to or affecting
creditors' rights generally or general equitable
principles or (ii) subject to judicial discretion or
general principles of public policy.
(3) A Washington court, or federal court applying
Washington law, may consider extrinsic evidence of
the circumstances surrounding the making of such
document to ascertain the intent of the parties using
the language employed in such documents, regardless
of whether or not the language used is plain and
unambiguous on its face, and may incorporate
additional or supplementary terms into such
documents. In addition, oral agreements or oral
commitments to loan money, extend credit or to
forbear from
<PAGE>
enforcing repayment of debt are enforceable under
Washington law absent delivery of a notice pursuant
to RCW 19.36.140.
(4) In addition, the enforceability of the Guarantee may
be subject to the laws of the State of Washington to
the effect that a guarantor may be exonerated if the
beneficiary of the guaranty alters the terms of the
senior debt, fails to inform the guarantor of
material information pertinent to the senior debt or
any collateral securing the senior debt, elects
remedies that may impair the subrogation rights of
the guarantor against the principal or that may
impair the value of any collateral, fails to accord
the guarantor the protections accorded a debtor under
Article 9 of the Washington UCC or otherwise takes
any action that materially prejudices the guarantor,
unless in any such case the guarantor validly waives
such rights or the consequences of any such action.
While express and specific waivers of exoneration
defenses available to a guarantor, such as those
contained in the Guarantee, should be generally
enforceable under the laws of the State of
Washington, we express no opinion as to whether the
Guarantee contains an express and specific waiver of
each exoneration defense a guarantor might assert or
as to whether each of the waivers contained in the
Guarantee is fully enforceable.
C. Our opinions are limited to matters expressly stated herein,
and no other opinions may be implied or inferred.
D. The "Other Common Qualifications" set forth in Section 14 of
the Accord.
EXCLUSIONS
We express no opinion as to the effect, if any, of the laws,
regulations and requirements identified in Section 19 of the Accord except to
the extent expressly noted to the contrary in this opinion letter.
<PAGE>
CONSENT
Consent is hereby given to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to this firm under the caption
"Legal Matters" as having passed upon the validity of the Series B Capital
Securities Guarantee and the Series B Subordinated Debentures. In giving this
consent, we do not admit that we are experts within the meaning of the
Securities Act of 1933, as amended.
Very truly yours,
GRAHAM & DUNN PC
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to Registration Statement (Form S-4, No. 333-30192) and
related Prospectus of InterWest Bancorp, Inc. for the registration of
$40,000,000 aggregate liquidation amount of its 9.875% Capital Securities,
Series B and to the incorporation by reference therein of our report dated
November 8, 1999, except for Note 24 as to which the date is November 16,
1999, with respect to the consolidated financial statements of InterWest
Bancorp, Inc. included in its Annual Report (Form 10-K) for the year ended
September 30, 1999, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Seattle, Washington
February 23, 2000
<PAGE>
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
INTERWEST CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
Delaware
(State of incorporation) (I.R.S. employer identification no.)
Interwest Bancorp, Inc.
275 SE Pioneer Way
Oak Harbor, Washington 98277
(Address of principal executive offices) (Zip Code)
$40.0 Million 9.875% Capital Securities, Series B
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes
the certificate of authority of Wilmington Trust Company to
commence business and the authorization of Wilmington Trust
Company to exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust
Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 24th day
of February, 2000.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Denise M. Geran By: /s/ Mary C. St. Amand
------------------------ -------------------------------
Assistant Secretary Name: Mary C. St. Amand
Title: Assistant Vice President
2
<PAGE>
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
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AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware
is at Rodney Square North, in the City of Wilmington, County of New
Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose
address is Rodney Square North, in said City. In addition to such
principal office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware, the Town of
Newport, New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at Milford Cross
Roads, New Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley Streets, 418
Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time by
the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal at
pleasure, to hold, 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,
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notes or other evidences of debt, to receive deposits of money, or
securities for money, to buy gold and silver bullion and foreign
coins, to buy and sell bills of exchange, and generally to use,
exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or necessary
for the transaction of the business of the Corporation hereby
created.
(2) To insure titles to real and personal property, or any estate
or interests therein, and to guarantee the holder of such
property, real or personal, against any claim or claims, adverse
to his interest therein, and to prepare and give certificates of
title for any lands or premises in the State of Delaware, or
elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every
description, and to carry on the business of conveyancing in all
its branches.
(5) To receive upon deposit for safekeeping money, jewelry,
plate, deeds, bonds and any and all other personal property of
every sort and kind, from executors, administrators, guardians,
public officers, courts, receivers, assignees, trustees, and from
all fiduciaries, and from all other persons and individuals, and
from all corporations whether state, municipal, corporate or
private, and to rent boxes, safes, vaults and other receptacles
for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or
underwriting the stock, bonds or other obligations of any
corporation, association, state or municipality, and may receive
and manage any sinking fund therefor on such terms as may be
agreed upon between the two parties, and in like manner may act as
Treasurer of any corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
(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
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manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in
the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian or bailee by any persons, corporations, court, officer,
or authority, in the State of Delaware or elsewhere; and whenever
this Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity,
it shall not be required to give bond with surety, but its capital
stock shall be taken and held as security for the performance of
the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to perform,
or for the assumption of any responsibility the said Corporation
may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for,
and dispose of interest, dividends and income upon and from any of
the bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and other property, any and all the rights, powers
and privileges of individual 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,
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hold, sell, assign, transfer, pledge, mortgage and convey real and
personal property of any name and nature and any estate or
interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of
the world.
(2) To acquire the good will, rights, property and franchises and
to undertake the whole or any part of the assets and liabilities
of any person, firm, association or corporation, and to pay for
the same in cash, stock of this Corporation, bonds or otherwise;
to hold or in any manner to dispose of the whole or any part of
the property so purchased; to conduct in any lawful manner the
whole or any part of any business so acquired, and to exercise all
the powers necessary or convenient in and about the conduct and
management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and
to lease, sell, exchange, transfer, or in any manner whatever
dispose of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and,
without limit as to amount, to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, and other negotiable or
transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent
as natural persons might or could do, to purchase or otherwise
acquire, to hold, own, to mortgage, sell, convey or otherwise
dispose of, real and personal property, of every class and
description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place.
(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,
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consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock");
and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and
the preferences and relative, participating, optional and other special
rights of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding; and, subject to the provisions of
subparagraph 1 of Paragraph (c) of this Article FOURTH, the Board of
Directors of the Corporation is hereby expressly granted authority to fix
by resolution or resolutions adopted prior to the issuance of any shares
of a particular series of Preferred Stock, the voting powers and the
designations, preferences and relative, optional and other special
rights, and the qualifications, limitations and restrictions of such
series, including, but without limiting the generality of the foregoing,
the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number
may be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of the
Board of Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall
be paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes,
or series of the same or other class of 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
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the voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up, of the
Corporation.
(6) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such
series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under
such circumstances and on such conditions as the Board of
Directors may determine.
(c) (1) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions of
section (b) of this Article FOURTH), if any, shall have been met and
after the Corporation shall have complied with all the requirements, if
any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts (fixed in accordance with the provisions
of section (b) of this Article FOURTH), and subject further to any
conditions which may be fixed in accordance with the provisions of
section (b) of this Article FOURTH, then and not otherwise the holders of
Common Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(2) After distribution in full of the preferential amount, if
any, (fixed in accordance with the provisions of section (b) of
this Article FOURTH), to be distributed to the holders of
Preferred Stock in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to 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
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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.
(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.
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(b) The Board of Directors shall be divided into three classes, as
nearly equal in number as the then total number of directors constituting
the whole Board permits, with the term of office of one class expiring
each year. At the annual meeting of stockholders in 1982, directors of
the first class shall be elected to hold office for a term expiring at
the next succeeding annual meeting, directors of the second class shall
be elected to hold office for a term expiring at the second succeeding
annual meeting and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting. Any
vacancies in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such
election, the stockholders shall elect a successor to such director to
hold office until the next election of the class for which such director
shall have been chosen and until his successor shall be elected and
qualified. No decrease in the number of directors shall shorten the term
of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the 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.
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(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.
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
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Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated
by them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by
law, and except as otherwise expressly provided in sections (b) and (c)
of this Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any other
corporation (whether or not itself an Interested Stockholder),
which, after such merger or consolidation, would be an Affiliate
(as hereinafter defined) of an Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
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)
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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 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,
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holding, voting or disposing of any shares of capital stock of the
Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement, or
upon exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect
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.
12
<PAGE>
(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."
13
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each 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 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.
<PAGE>
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.
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
2
<PAGE>
that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than 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.
4
<PAGE>
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of 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
5
<PAGE>
the President conferred or imposed upon him by statute or assigned to him by the
Board of Directors. In the absence of the Chairman of the Board the President
shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
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.
6
<PAGE>
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. 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.
7
<PAGE>
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
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.
8
<PAGE>
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED, HOWEVER,
that the payment of expenses incurred by a Director 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
9
<PAGE>
Directors by a vote of the majority of all the members of the Board of
Directors then in office.
10
<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 24, 2000 By: /s/ Mary C. St. Amand
----------------------------
Name: Mary C. St. Amand
Title: Assistant Vice President
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and
savings banks with state publication requirements. It has
not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- --------------------------------------------------------- ---------------
Name of Bank City
in the State of DELAWARE, at the close of business on September 30, 1999.
---------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins. . . . . . . . . . . . . .182,666
Interest-bearing balances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,128
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . . . . . . . .1,644,067
Federal funds sold and securities purchased under agreements to resell . . . . . . .259,962
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . .4,251,934
LESS: Allowance for loan and lease losses . . . . . . . 71,014
LESS: Allocated transfer risk reserve . . . . . . . . . . . .0
Loans and leases, net of unearned income, allowance, and
reserve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,180,920
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . .138,196
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .976
Investments in unconsolidated subsidiaries and associated companies. . . . . . . . . .1,452
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . .0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,092
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142,444
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,589,903
CONTINUED ON NEXT PAGE
<PAGE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,886,770
Noninterest-bearing. . . . . . . . . . . . . . . . 1,084,581
Interest-bearing . . . . . . . . . . . . . . . . . 3,802,189
Federal funds purchased and Securities sold under agreements to
repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .387,343
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . 69,491
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . .0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .///////
With original maturity of one year or less . . . . . . . . . . . . . . . . . .655,000
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) . . . . . . . . . . . . . . . . . . . . . . . 84,722
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,126,326
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . .0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . .417,321
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . (16,362)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .463,577
Total liabilities, limited-life preferred stock, and equity capital. . . . . . . .6,589,903
</TABLE>
2
<PAGE>
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
INTERWEST BANCORP, INC.
(Exact name of obligor as specified in its charter)
(State of incorporation) (I.R.S. employer identification no.)
Interwest Bancorp, Inc.
275 SE Pioneer Way
Oak Harbor, Washington 98277
(Address of principal executive offices) (Zip Code)
Series B Capital Securities Guarantee
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, 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 24th day of February, 2000.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Denise M. Geran By: /s/ Mary C. St. Amand
---------------------- -------------------------
Assistant Secretary Name: Mary C. St. Amand
Title: Assistant Vice President
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EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE>
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware
is at Rodney Square North, in the City of Wilmington, County of New
Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose
address is Rodney Square North, in said City. In addition to such
principal office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware, the Town of
Newport, New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at Milford Cross
Roads, New Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley Streets, 418
Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time by
the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and
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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 instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places
of responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in
the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian or bailee by any persons, corporations, court, officer,
or authority, in the State of Delaware or elsewhere; and whenever
this Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity,
it shall not be required to give bond with surety, but its capital
stock shall be taken and held as security for the performance of
the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to perform,
or for the assumption of any responsibility the said Corporation
may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for,
and dispose of interest, dividends and income upon and from any of
the bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and
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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, 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,
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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, dividends, if any, on Preferred Stock of such series shall
be paid, the extent of
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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 involuntary
liquidation, distribution or sale of assets, dissolution or
winding-
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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 Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class)
cast at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the Corporation not less than 14 days nor more than
50 days prior to any meeting of the stockholders called for the election
of directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of
such nominee and (iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, 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
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$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
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
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date for the determination of stockholders entitled to notice of and to
vote on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
(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.
12
<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect
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."
13
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each 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 by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company
<PAGE>
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.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
2
<PAGE>
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors. In the absence of the Chairman of the Board
the President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. 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
7
<PAGE>
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.
8
<PAGE>
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
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
9
<PAGE>
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED, HOWEVER,
that the payment of expenses incurred by a Director 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.
10
<PAGE>
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.
11
<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, 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 Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 24, 2000 By: /s/ Mary C. St. Amand
-----------------------------
Name: Mary C. St. Amand
Title: Assistant Vice President
12
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking authorities.
Refer to your appropriate state banking authorities for
your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------------------------- ------------------
Name of Bank City
in the State of DELAWARE, at the close of business on September 30, 1999.
---------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . .182,666
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,128
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . . . . . . . . .1,644,067
Federal funds sold and securities purchased under agreements to resell . . . . . . . .259,962
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . 4,251,934
LESS: Allowance for loan and lease losses. . . . 71,014
LESS: Allocated transfer risk reserve. . . . . . . . . 0
Loans and leases, net of unearned income, allowance, and reserve. . . . . . .4,180,920
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . .138,196
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976
Investments in unconsolidated subsidiaries and associated companies. . . . . . . . . . .1,452
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . .0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,092
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142,444
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,589,903
CONTINUED ON NEXT PAGE
13
<PAGE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,886,770
Noninterest-bearing . . . . . . . . . . . .1,084,581
Interest-bearing. . . . . . . . . . . . . . 3,802,189
Federal funds purchased and Securities sold under agreements to
repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387,343
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . 69,491
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . . .0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .///////
With original maturity of one year or less. . . . . . . . . . . . . . . . . . .655,000
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) . . . . . . . . . . . . . . . . . . . . . . . . 84,722
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,126,326
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . . .0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . .417,321
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . (16,362)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .463,577
Total liabilities, limited-life preferred stock, and equity capital. . . . . . . . .6,589,903
</TABLE>
14
<PAGE>
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
INTERWEST BANCORP, INC.
(Exact name of obligor as specified in its charter)
(State of incorporation) (I.R.S. employer identification no.)
Interwest Bancorp, Inc.
275 SE Pioneer Way
Oak Harbor, Washington 98277
(Address of principal executive offices) (Zip Code)
$41,238,000 of 9.875% Junior Subordinated Deferrable Interest
Debentures, Series B
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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, 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 24th day of February, 2000.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Denise M. Geran By: /s/ Mary C. St. Amand
------------------------- -----------------------------
Assistant Secretary Name: Mary C. St. Amand
Title: Assistant Vice President
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EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
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AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the
General Assembly of the State of Delaware, entitled "An Act to Incorporate the
Delaware Guarantee and Trust Company", approved March 2, A.D. 1901, and the name
of which company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed
in the Office of the Secretary of State on March 18, A.D. 1903, and the Charter
or Act of Incorporation of which company has been from time to time amended and
changed by merger agreements pursuant to the corporation law for state banks and
trust companies of the State of Delaware, does hereby alter and amend its
Charter or Act of Incorporation so that the same as so altered and amended shall
in its entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware
is at Rodney Square North, in the City of Wilmington, County of New
Castle; the name of its resident agent is WILMINGTON TRUST COMPANY whose
address is Rodney Square North, in said City. In addition to such
principal office, the said corporation maintains and operates branch
offices in the City of Newark, New Castle County, Delaware, the Town of
Newport, New Castle County, Delaware, at Claymont, New Castle County,
Delaware, at Greenville, New Castle County Delaware, and at Milford Cross
Roads, New Castle County, Delaware, and shall be empowered to open,
maintain and operate branch offices at Ninth and Shipley Streets, 418
Delaware Avenue, 2120 Market Street, and 3605 Market Street, all in the
City of Wilmington, New Castle County, Delaware, and such other branch
offices or places of business as may be authorized from time to time by
the agency or agencies of the government of the State of Delaware
empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law
or equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and
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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 instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
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(8) To guarantee the validity, performance or effect of any
contract or agreement, and the fidelity of persons holding places
of responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in
the State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator,
guardian or bailee by any persons, corporations, court, officer,
or authority, in the State of Delaware or elsewhere; and whenever
this Corporation is so appointed by any person, corporation,
court, officer or authority such trustee, trustee in bankruptcy,
receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity,
it shall not be required to give bond with surety, but its capital
stock shall be taken and held as security for the performance of
the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise
of any of its powers hereby given, or for the performance of any
of the duties which it may undertake or be called upon to perform,
or for the assumption of any responsibility the said Corporation
may be entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or
of any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for,
and dispose of interest, dividends and income upon and from any of
the bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of
indebtedness and
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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, 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,
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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, dividends, if any, on Preferred Stock of such series shall
be paid, the extent of
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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 involuntary
liquidation, distribution or sale of assets, dissolution or
winding-
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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 Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board
of Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing,
delivered or mailed by first class United States mail, postage prepaid,
to the Secretary of the Corporation not less than 14 days nor more than
50 days prior to any meeting of the stockholders called for the election
of directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of
the meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee
proposed in such notice, (ii) the principal occupation or employment of
such nominee and (iii) the number of shares of stock of the Corporation
which are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual
or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing,
without a meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, 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
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$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any Interested
Stockholder, or any Affiliate of any Interested Stockholder,
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
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date for the determination of stockholders entitled to notice of and to
vote on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities
Act of 1933.
(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.
12
<PAGE>
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect
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."
13
<PAGE>
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 1997
<PAGE>
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any
time by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each 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 by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company
<PAGE>
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.
ARTICLE III
COMMITTEES
Section 1. Executive Committee
2
<PAGE>
(A) The Executive Committee shall be composed of not more than
nine members who shall be selected by the Board of Directors from its own
members and who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the
Board of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office
of the Company or elsewhere in its discretion at such times to be determined by
a majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The
majority of its members shall be necessary to constitute a quorum for the
transaction of business. Special meetings of the Executive Committee may be
held at any time when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be
kept and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of the Company
by its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE>
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than
thirteen members who shall be selected by the Board of Directors, a majority of
whom shall be members of the Board of Directors and who shall hold office during
the pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be
kept and promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint
Committees and/or designate officers or employees of the Company to whom
supervision over the investment of trust funds may be delegated when the Trust
Committee is not in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who
shall be selected by the Board of Directors from its own members, none of whom
shall be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more
than
4
<PAGE>
five (5) members who shall be selected by the Board of Directors from its
own members who are not officers of the Company and who shall hold office during
the pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any
time by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by
the Board of Directors as an associate director, to serve during the pleasure of
the Board.
(B) An associate director shall be entitled to attend all
directors meetings and participate in the discussion of all matters brought to
the Board, with the exception that he would have no right to vote. An associate
director will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the
Board of
5
<PAGE>
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors. In the absence of the Chairman of the Board
the President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of
meetings of the stockholders and the Board of Directors, as well as the
Committees thereof, to the keeping of accurate minutes of all such meetings and
to recording the same in the minute books of the Company. In addition to the
other notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for
all monies, funds and valuables of the Company and for the keeping of proper
records of the evidence of property or indebtedness and of all the transactions
of the Company. He shall have general supervision of the expenditures of the
Company and shall report to the Board of Directors at each regular meeting of
the condition of the Company, and perform such other duties as may be assigned
to him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE>
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to
all Vice Presidents with such functional titles as shall be determined from time
to time by the Board of Directors, who shall ex officio hold the office
Assistant Secretary of this Company and who may perform such duties as may be
prescribed by the officer in charge of the department or division to whom they
are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. 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
7
<PAGE>
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.
8
<PAGE>
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice
President, however denominated by the Board of Directors, shall have full power
and authority to enter into, make, sign, execute, acknowledge and/or deliver and
the Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
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
9
<PAGE>
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in
defending any proceeding in advance of its final disposition, PROVIDED, HOWEVER,
that the payment of expenses incurred by a Director 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.
10
<PAGE>
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.
11
<PAGE>
EXHIBIT C
SECTION 321(b) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, 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 Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: February 24, 2000 By: /s/ Mary C. St. Amand
-----------------------------
Name: Mary C. St. Amand
Title: Assistant Vice President
12
<PAGE>
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks
and savings banks with state publication requirements.
It has not been approved by any state banking authorities.
Refer to your appropriate state banking authorities for
your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------- -------------------
Name of Bank City
in the State of DELAWARE, at the close of business on September 30, 1999.
---------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins . . . . . . . . . . . . . .182,666
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0
Held-to-maturity securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,128
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . . . . . . . . .1,644,067
Federal funds sold and securities purchased under agreements to
resell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .259,962
Loans and lease financing receivables:
Loans and leases, net of unearned income. . . . . . . .4,251,934
LESS: Allowance for loan and lease losses. . . . . . . . 71,014
LESS: Allocated transfer risk reserve. . . . . . . . . . . . .0
Loans and leases, net of unearned income, allowance, and
reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,180,920
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . .138,196
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .976
Investments in unconsolidated subsidiaries and associated companies. . . . . . . . . . .1,452
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . .0
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,092
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142,444
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,589,903
CONTINUED ON NEXT PAGE
13
<PAGE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,886,770
Noninterest-bearing . . . . . . . . . . .1,084,581
Interest-bearing. . . . . . . . . . . . 3,802,189
Federal funds purchased and Securities sold under agreements to
repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .387,343
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . 69,491
Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . . . . . . . . . .0
Other borrowed money:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .///////
With original maturity of one year or less. . . . . . . . . . . . . . . . . . .655,000
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) . . . . . . . . . . . . . . . . . . . . . . . . 84,722
Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,126,326
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . . .0
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .500
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . . . . . 62,118
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . .417,321
Net unrealized holding gains (losses) on available-for-sale securities . . . . . . . (16,362)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .463,577
Total liabilities, limited-life preferred stock, and equity capital. . . . . . . . .6,589,903
</TABLE>
14
<PAGE>
LETTER OF TRANSMITTAL
INTERWEST CAPITAL TRUST I
OFFER TO EXCHANGE ALL OF ITS OUTSTANDING
9.875% CAPITAL SECURITIES, SERIES A
FOR UP TO $40,000,000 AGGREGATE LIQUIDATION AMOUNT OF ITS
9.875% CAPITAL SECURITIES, SERIES B
---------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON MARCH 31, 2000,
UNLESS EXTENDED (THE "EXPIRATION DATE").
---------------------------------------------------------------------
The Exchange Agent for the Exchange Offer is: Wilmington Trust Company, as
Property Trustee of InterWest Capital Trust I
BY HAND OR OVERNIGHT DELIVERY, OR BY FACSIMILE TRANSMISSIONS:
REGISTERED OR CERTIFIED MAIL: (ELIGIBLE INSTITUTIONS ONLY)
Wilmington Trust Company, as Exchange
Agent (302) 651-8882
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001 To confirm by telephone or for
Attention: Corporate Trust Administration information call:
- InterWest Capital Trust I
Exchange Offer (302) 651-1000
DELIVERY OF THIS LETTER OF TRANSMITTAL (THE "LETTER OF TRANSMITTAL")
TO AN ADDRESS, OR TRANSMISSION VIA FACSIMILE TO A NUMBER, OTHER THAN AS SET
FORTH ABOVE, WILL NOT CONSTITUTE A VALID TENDER OF 9.875% CAPITAL SECURITIES,
SERIES A (THE "SERIES A CAPITAL SECURITIES") OF INTERWEST CAPITAL TRUST I.
The Instructions contained herein should be read carefully before
this Letter of Transmittal is completed and signed. All capitalized terms
used herein and not defined herein shall have the meaning ascribed to them in
the Prospectus dated February 23, 2000 (the "Prospectus") of InterWest
Capital Trust I (the "Trust").
This Letter of Transmittal is to be used by registered holders of
Series A capital securities ("Holders") if: (i) certificates representing
Series A capital securities are to be physically delivered to the Exchange
Agent by such Holders; (ii) tender of Series A capital securities is to be
made by book-entry transfer to the Exchange Agent's account at The Depository
Trust Company ("DTC" or the "Book-Entry Transfer Facility") pursuant to the
procedures set forth in the Prospectus under the caption "The Exchange Offer
- - Procedures for Tendering Series A Capital Securities - Book-Entry Transfer"
by any financial institution that is a participant in DTC and whose name
appears on a security position listing as the owner of Series A capital
securities or (iii) delivery of Series A capital securities is to be made
according to the guaranteed delivery procedures set forth in the Prospectus
under the caption "The Exchange Offer - Procedures for Tendering Series A
Capital Securities Guaranteed Delivery," and, in each case, instructions are
NOT being transmitted through the DTC's Automated Tender Program ("ATOP").
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH
SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY
TO THE EXCHANGE AGENT.
1
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
By execution hereof, the undersigned acknowledges receipt of the
Prospectus and this Letter of Transmittal and the instructions hereto, which
together constitute Trust's offer to exchange (the "Exchange Offer") $1,000
liquidation amount of its 9.875% Capital Securities, Series B (the "Series B
capital securities"), upon the terms of and subject to the conditions set
forth in the Exchange Offer, for each $1,000 liquidation amount of its
outstanding 9.875% Capital Securities, Series A (the "Series A capital
securities"). Upon the terms and subject to the conditions of the Exchange
Offer, the undersigned hereby tenders to the Trust the liquidation amount of
Series A capital securities indicated below. Subject to, and effective upon,
the acceptance for exchange of the Series A capital securities tendered
herewith, the undersigned hereby exchanges, assigns and transfers to, or upon
the order of, the Trust all right, title and interest in and to such Series A
capital securities.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent as the true and lawful agent and attorney-in-fact of the undersigned
(with full knowledge that the Exchange Agent also acts as the agent of the
Trust) with respect to such Series A capital securities with full power of
substitution (such power-of-attorney being deemed to be an irrevocable power
coupled with an interest) to (i) present such Series A capital securities and
all evidences of transfer and authenticity to, or transfer ownership of, such
Series A capital securities on the account books maintained by the Book-Entry
Transfer Facility to, or upon the order of, the Trust, (ii) present such
Series A capital securities for transfer of ownership on the books of the
Trust or the trustee under the Indenture (the "Trustee") and (iii) receive
all benefits and otherwise exercise all rights of beneficial ownership of
such Series A capital securities, all in accordance with the terms and
conditions of the Exchange Offer as described in the Prospectus.
The undersigned represents and warrants that it has full power and
authority to tender, exchange, assign and transfer the Series A capital
securities tendered hereby and to acquire Series B capital securities
issuable upon the exchange of such tendered Series A capital securities, and
that, when the same are accepted for exchange, the Trust will acquire good
and unencumbered title to the tendered Series A capital securities, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim or right. The undersigned also warrants that it will, upon
request, execute and deliver any additional documents deemed by the Exchange
Agent or the Trust to be necessary or desirable to complete the exchange,
assignment and transfer of the Series A capital securities tendered hereby or
transfer ownership of such Series A capital securities on the account books
maintained by the book-entry transfer facility.
The Exchange Offer is subject to certain conditions as set forth in
the Prospectus under the caption "The Exchange Offer - Certain Conditions to
the Exchange Offer." The undersigned recognizes that as a result of these
conditions (which may be waived by the Trust, in whole or in part, in the
reasonable discretion of the Trust), as more particularly set forth in the
Prospectus, the Trust may not be required to exchange any of the Series A
capital securities tendered hereby and, in such event, the Series A capital
securities not exchanged will be returned to the undersigned at the address
shown above.
THE EXCHANGE OFFER IS NOT BEING MADE TO ANY BROKER-DEALER WHO
PURCHASED SERIES A CAPITAL SECURITIES DIRECTLY FROM THE TRUST FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT OR ANY PERSON THAT IS AN
"AFFILIATE" OF THE TRUST WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES
ACT. THE UNDERSIGNED UNDERSTANDS AND AGREES THAT THE TRUST RESERVES THE RIGHT
NOT TO ACCEPT TENDERED SERIES A CAPITAL SECURITIES FROM ANY TENDERING HOLDER
IF THE TRUST DETERMINES, IN ITS REASONABLE DISCRETION, THAT SUCH ACCEPTANCE
COULD RESULT IN A VIOLATION OF APPLICABLE SECURITIES LAWS.
The undersigned, if the undersigned is a beneficial holder, or if the
undersigned is a broker, dealer, commercial bank, trust company or other
nominee, represents that it has received representations from the beneficial
owners of the Series A capital securities (the "Beneficial Owner") stating)
that, (i) the Series B capital securities to be acquired in connection with the
Exchange Offer by the Holder and each Beneficial Owner of the Series A capital
securities are being acquired by the Holder and each such Beneficial Owner in
the ordinary course of their business, (ii) the Holder and each such Beneficial
Owner are not engaged in, do not intend to engage in, and have no arrangement or
understanding with any person to participate in, a distribution (as defined in
the Securities Act) of the Series B capital securities, (iii) the Holder and
each Beneficial Owner acknowledge and agree that any person
2
<PAGE>
participating in the Exchange Offer for the purpose of distributing the
Series B capital securities cannot rely on the interpretations of the staff
of the Commission discussed in the Prospectus under the caption "The Exchange
Offer -Effect of the Exchange Offer" and may only sell the Series B capital
securities acquired by such person pursuant to a registration statement
containing the selling security holder information required by Item 507 of
Regulation S-K under the Securities Act, (iv) if the Holder is a
broker-dealer that acquired Series A capital securities as a result of
market-making activities or other trading activities, it will deliver a
prospectus in connection with any resale of Series B capital securities
acquired in the Exchange Offer (but by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act) and (v) neither the
Holder nor any such Beneficial Owner is an "affiliate," as defined under Rule
405 of the Securities Act, of the Trust or of Parent or is a broker-dealer
who purchased Series A capital securities directly from the Trust for resale
pursuant to Rule 144A under the Securities Act.
Each broker-dealer who acquired Series A capital securities for its
own account as a result of market-making activities or other trading
activities (a "participating broker-dealer"), by tendering such Series A
capital securities and executing this Letter of Transmittal, agrees that,
upon receipt of notice from the Trust of the occurrence of any event or the
discovery of any fact which makes any statement contained or incorporated by
reference in the prospectus untrue in any material respect or which causes
the prospectus to omit to state a material fact necessary in order to make
the statements 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 Series B
capital securities pursuant to the prospectus until the Trust has 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 Trust has given notice that the sale of
the Series B capital securities may be resumed, as the case may be. Each
participating broker-dealer should check the box herein under the caption
"for participating broker-dealers only" in order to receive additional copies
of the prospectus, and any amendments and supplements thereto, for use in
connection with resales of the Series B capital securities, as well as any
notices from the Trust to suspend and resume use of the prospectus. By
tendering its Series A capital securities and executing this Letter of
Transmittal, each participating broker-dealer agrees to use its reasonable
best efforts to notify the Trust or the Exchange Agent when it has sold all
of its Series B capital securities. If no participating broker-dealers check
such box, or if all participating broker-dealers who have checked such box
subsequently notify the Trust or the Exchange Agent that all their Series B
capital securities have been sold, the Trust will not be required to maintain
the effectiveness of the Exchange Offer registration statement or to update
the prospectus and will not provide any holders with any notices to suspend
or resume use of the prospectus.
The undersigned understands that tenders of the Series A capital
securities pursuant to any one of the procedures described under "The
Exchange Offer - Procedures for Tendering Series A Capital Securities" in the
Prospectus and in the instructions hereto will constitute a binding agreement
between the undersigned and the Trust in accordance with the terms and
subject to the conditions of the Exchange Offer. All authority herein
conferred or agreed to be conferred by this Letter of Transmittal and every
obligation of the undersigned hereunder shall be binding upon the heirs,
legal representatives, successors and assigns, executors, administrators and
trustees in bankruptcy of the undersigned and shall survive the death or
incapacity of the undersigned. Tendered Series A capital securities may be
withdrawn at any time prior to 5:00 p.m. on the Expiration Date in accordance
with the terms of the Exchange Offer.
The undersigned understands that by tendering Series A capital
securities pursuant to one of the procedures described under "The Exchange
Offer - Procedures for Tendering Series A Capital Securities" in the
Prospectus and the instructions hereto, the tendering Holder will be deemed
to have waived the right to receive any payment in respect of interest on the
Series A capital securities accrued up to the date of issuance of the Series
B capital securities. The undersigned also understands and acknowledges that
the Trust reserves the right in its sole discretion to purchase or make
offers for any Series A capital securities that remain outstanding subsequent
to the Expiration Date in the open market, in privately negotiated
transactions, through subsequent exchange offers or otherwise. The terms of
any such purchases or offers could differ from the terms of the Exchange
Offer.
The undersigned understands that the delivery and surrender of the
Series A capital securities is not effective, and the risk of loss of the
Series A capital securities does not pass to the Exchange Agent, until
receipt by the Exchange Agent of this Letter of Transmittal, or a manually
signed facsimile hereof, properly completed and duly executed, with any
required signature guarantees, together with all accompanying evidences of
authority and any
3
<PAGE>
other required documents in form satisfactory to the Trust. All questions as
to form of all documents and the validity (including time of receipt) and
acceptance of tenders and withdrawals of Series A capital securities will be
determined by the Trust, in its sole discretion, which determination shall be
final and binding.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions," the undersigned hereby requests that any Series A
capital securities representing liquidation amounts not tendered or not
accepted for exchange be issued in the name(s) of the undersigned and that
Series B capital securities be issued in the name(s) of the undersigned (or,
in the case of Series A capital securities delivered by book-entry transfer,
by credit to the account at the Book-Entry Transfer Facility). Similarly,
unless otherwise indicated herein in the box entitled "Special Delivery
Instructions," the undersigned hereby requests that any Series A capital
securities representing liquidation amounts not tendered or not accepted for
exchange and Series B capital securities be delivered to the undersigned at
the address(es) shown above. The undersigned recognizes that the Trust has no
obligation pursuant to the "Special Issuance Instructions" box or "Special
Delivery Instructions" box to transfer any Series A capital securities from
the name of the registered Holder(s) thereof if the Trust does not accept for
exchange any of the principal amount of such Series A capital securities so
tendered.
In order to properly complete this Letter of Transmittal, a Holder
must (i) complete the box entitled "Method of Delivery" by checking one of
the three boxes therein and supplying the appropriate information, (ii)
complete the box entitled "Description of Series A capital securities," (iii)
if such Holder is a Participating Broker-Dealer (as defined below) and wishes
to receive additional copies of the Prospectus for delivery in connection
with resales of Series B capital securities (as defined below), check the
applicable box, (iv) sign this Letter of Transmittal by completing the box
entitled "Please Sign Here," (v) if appropriate, check and complete the boxes
relating to the "Special Issuance Instructions" and "Special Delivery
Instructions" and (vi) complete the Substitute Form W-9. Each Holder should
carefully read the detailed Instructions below prior to the completing this
Letter of Transmittal. See "The Exchange Offer - Procedures for Tendering
Series A Capital Securities" in the Prospectus.
Holders of Series A capital securities that are tendering by
book-entry transfer to the Exchange Agent's account at DTC can execute the
tender through ATOP, for which the transaction will be eligible. DTC
participants that are accepting the Exchange Offer should transmit their
acceptance to DTC, which will edit and verify the acceptance and execute a
book-entry delivery to the Exchange Agent's account at DTC. DTC will then
send an Agent's Message to the Exchange Agent for its acceptance. Delivery of
the Agent's Message by DTC will satisfy the terms of the Exchange Offer as to
execution and delivery of a Letter of Transmittal by the participant
identified in the Agent's Message. DTC participants may also accept the
Exchange Offer by submitting a Notice of Guaranteed Delivery through ATOP.
If Holders desire to tender Series A capital securities pursuant to
the Exchange Offer and (i) certificates representing such Series A capital
securities are not lost but are not immediately available, (ii) time will not
permit this Letter of Transmittal, certificates representing such Holder's
Series A capital securities and all other required documents to reach the
Exchange Agent prior to the Expiration Date or (iii) the procedures for
book-entry transfer cannot be completed prior to the Expiration Date, such
Holders may effect a tender of such Series A capital securities in accordance
with the guaranteed delivery procedures set forth in the Prospectus under the
caption "The Exchange Offer - Guaranteed Delivery Procedures." See
Instruction 2 below. A Holder having Series A capital securities registered
in the name of a broker, dealer, commercial bank, trust company or other
nominee must contact such broker, dealer, commercial bank, trust company or
other nominee if they desire to accept the Exchange Offer with respect to the
Series A capital securities so registered.
THE EXCHANGE OFFER IS NOT BEING MADE TO (NOR WILL TENDERS OF SERIES
A CAPITAL SECURITIES BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS IN ANY
JURISDICTION IN WHICH THE MAKING OR ACCEPTANCE OF THE EXCHANGE OFFER WOULD
NOT BE IN COMPLIANCE WITH THE LAWS OF SUCH JURISDICTION.
4
<PAGE>
Your bank or broker can assist you in completing this form. The
instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the
Prospectus, this Letter of Transmittal and the Notice of Guaranteed Delivery
maybe directed to the Exchange Agent, whose address and telephone number
appear on the front cover of this Letter of Transmittal. See Instruction 11
below.
List below the Series A capital securities to which this Letter of
Transmittal relates. If the space provided below is inadequate, list the
certificate numbers and principal amounts on a separately signed schedule and
affix the schedule to this Letter of Transmittal.
<TABLE>
<S><C>
DESCRIPTION OF SERIES A CAPITAL SECURITIES
Name(s) and Address(es) of
Holder(s) CERTIFICATE NUMBERS AGGREGATE LIQUIDATION AGGREGATE LIQUIDATION
(PLEASE FILL IN IF BLANK) AMOUNT REPRESENTED AMOUNT TENDERED
---------------- -------------------- --------------------
---------------- -------------------- --------------------
---------------- -------------------- --------------------
---------------- -------------------- --------------------
Total -------------------- --------------------
</TABLE>
METHOD OF DELIVERY
[ ] CHECK HERE IF CERTIFICATES FOR TENDERED SERIES A CAPITAL SECURITIES ARE
BEING DELIVERED HEREWITH.
[ ] CHECK HERE IF TENDERED SERIES A CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH A BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
--------------------------------------------
Account Number: Transaction Code Number:
---------- --------------------------
[ ] CHECK HERE IF TENDERED SERIES A CAPITAL SECURITIES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE
EXCHANGE AGENT PURSUANT TO INSTRUCTION 2 BELOW AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s):
---------------------------------------------
Window ticket No. (if any):
-----------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
-----------------------
Name of Eligible Institution that Guaranteed Delivery:
--------------------
If Delivered by Book-Entry Transfer (yes or no):
--------------------------
Account Number: Transaction Code Number:
---------
FOR PARTICIPATING BROKER-DEALERS ONLY
[ ] Check here and provide the information requested below if you are a
Participating Broker-Dealer (as defined below) and wish to receive 10
additional copies of the Prospectus and, during the nine-month period
following the consummation of the Exchange Offer, 10 copies of any
amendments or supplements thereto, as well as any notices from the Trust to
suspend and resume use of the Prospectus. By tendering its Series A capital
securities and executing this Letter of Transmittal, each Participating
Broker-Dealer agrees to use its reasonable best
5
<PAGE>
efforts to notify the Trust or the Exchange Agent when it has sold all of
its Series B capital securities. (If no Participating Broker-Dealers check
this box, or if all Participating Broker-Dealers who have checked this box
subsequently notify the Trust or the Exchange Agent that all their Series B
capital securities have been sold, the Trust will not be required to
maintain the effectiveness of the Exchange Offer Registration Statement or
to update the Prospectus and will not provide any notices to any holders to
suspend or resume use of the Prospectus.)
Provide the name of the individual who should receive, on behalf of the
holder, additional copies of the Prospectus, and amendments and supplements
thereto, and any notices to suspend and resume use of the Prospectus:
Name:
-------------------------------------------------------------------
Address:
----------------------------------------------------------------
Telephone No.:
----------------------------------------------------------
Facsimile No.:
----------------------------------------------------------
PLEASE SIGN HERE (TO BE COMPLETED BY ALL HOLDERS OF SERIES A CAPITAL
SECURITIES REGARDLESS OF WHETHER SERIES A CAPITAL SECURITIES ARE BEING
PHYSICALLY DELIVERED HEREWITH)
This Letter of Transmittal must be signed by the Holder(s) of Series A
capital securities exactly as their name(s) appear(s) on certificate(s) for
Series A capital securities or, if delivered by a participant in the
Book-Entry Transfer Facility, exactly as such participant's name appears on a
security position listing as the owner of Series A capital securities, or by
person(s) authorized to become Holder(s) by endorsements and documents
transmitted with this Letter of Transmittal. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer or other person
acting in a fiduciary or representative capacity, such person must set forth
his or her full title below under "Capacity" and submit evidence satisfactory
to the Trust of such person's authority so to act. See Instruction 4 below.
If the signature appearing below is not of the record holder(s) of the Series
A capital securities, then the record holder(s) must sign a valid bond power.
X
---------------------------------------------------------------------------
X
---------------------------------------------------------------------------
Signature(s) of Registered Holder(s) or Authorized Signatory
Date:
-----------------------------------------------------------------------
Name:
-----------------------------------------------------------------------
Capacity:
-------------------------------------------------------------------
Address:
--------------------------------------------------------------------
(include Zip Code)
Area Code and Telephone No.:
------------------------------------------------
PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN
- ------------------------------------------------------------------------------
[ ] Check here if you are a Broker Dealer who acquired the Series A capital
securities for its own account as a result of market-making or other
trading activities and wish to receive additional copies of the Prospectus
and copies of any amendments or supplements thereto.
Name:
-----------------------------------------------------------------------
Address:
--------------------------------------------------------------------
6
<PAGE>
MEDALLION SIGNATURE GUARANTEE (SEE INSTRUCTION 4 BELOW)
(CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION)
Name of Eligible Institution Guaranteeing Signatures:
- -----------------------------------------------------------------------
Address (including Zip Code) and Telephone Number (including Area Code) of Firm:
- -----------------------------------------------------------------------
Authorized Signature:
- -----------------------------------------------------------------------
Printed Name:
- -----------------------------------------------------------------------
Title:
- -----------------------------------------------------------------------
Date:
7
<PAGE>
<TABLE>
<S><C>
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3, 4, 5 AND 7) (SEE INSTRUCTIONS 4 AND 9)
To be completed ONLY if Series A capital securities in To be completed ONLY if Series A capital securities in
a liquidation amount not tendered or not accepted for a liquidation amount not tendered or not accepted for
exchange are to be issued in the name of, or Series B exchange or Series B capital securities are to be sent to
capital securities are to be issued in the name of, someone other than the person or persons whose signature(s)
someone other than the persons whose signature(s) appear(s) within this Letter of Transmittal or to an address
appear(s) within this Letter of Transmittal. different from that shown in the box entitled "Description of
Series A Capital Securities" within this Letter of Transmittal.
Issue [ ] Series A capital securities Issue [ ] Series A capital securities
[ ] Series B capital securities [ ] Series B capital securities
(check as applicable) (check as applicable)
Name Name
----------------------- ----------------------
(Please Print) (Please Print)
Address Address
--------------------- --------------------
- ---------------------------- ---------------------------
(Include Zip Code) (Include Zip Code)
- ------------------------------
(Tax Identification or Social Security Number)
(SEE SUBSTITUTE FORM W-9 HEREIN)
Credit Series A capital securities not tendered or not exchanged by book-entry
transfer to the Book-Entry Transfer Facility account set below:
- ----------------------------------
(Book-Entry Transfer Facility Account Number)
Credit Series B capital securities to the Book-Entry Transfer Facility account
set below:
- ---------------------------------
(Book-Entry Transfer Facility Account Number)
- -------------------------------------------------------------------
</TABLE>
8
<PAGE>
INSTRUCTIONS TO LETTER OF TRANSMITTAL
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR SERIES A
CAPITAL SECURITIES OR BOOK-ENTRY CONFIRMATION; WITHDRAWAL OF TENDERS.
To tender Series A capital securities in the Exchange Offer,
physical delivery of certificates for Series A capital securities or
confirmation of a book-entry transfer into the Exchange Agent's account with
a Book-Entry Transfer Facility of Series A capital securities tendered
electronically, as well as a properly completed and duly executed copy or
manually signed facsimile of this Letter of Transmittal, or in the case of a
book-entry transfer, an Agent's Message, and any other documents required by
this Letter of Transmittal, must be received by the Exchange Agent at its
address set forth herein prior to 5:00 p.m. New York time on the Expiration
Date. Tenders of Series A capital securities in the Exchange Offer may be
made prior to the Expiration Date in the manner described in the preceding
sentence and otherwise in compliance with this Letter of Transmittal.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, CERTIFICATES
FOR SERIES A CAPITAL SECURITIES AND ALL OTHER REQUIRED DOCUMENTS TO THE
EXCHANGE AGENT, INCLUDING DELIVERY THROUGH DTC AND ANY ACCEPTANCE OF AN
AGENT'S MESSAGE TRANSMITTED THROUGH ATOP, IS AT THE ELECTION AND RISK OF THE
HOLDER TENDERING SERIES A CAPITAL SECURITIES. IF SUCH DELIVERY IS MADE BY
MAIL, IT IS SUGGESTED THAT THE HOLDER USE PROPERLY INSURED, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED AND THAT SUFFICIENT TIME SHOULD BE ALLOWED TO
ASSURE TIMELY DELIVERY. NO ALTERNATIVE, CONDITIONAL OR CONTINGENT TENDERS OF
SERIES A CAPITAL SECURITIES WILL BE ACCEPTED.
Except as otherwise provided below, the delivery will be made when
actually received by the Exchange Agent. THIS LETTER OF TRANSMITTAL,
CERTIFICATES FOR THE SERIES A CAPITAL SECURITIES AND ANY OTHER REQUIRED
DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE AGENT, NOT TO THE TRUST, THE
TRUSTEE OR DTC. Series A capital securities tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to 5:00 p.m. New York time on the
Expiration Date. In order to be valid, notice of withdrawal of tendered
Series A capital securities must comply with the requirements set forth in
the Prospectus under the caption "The Exchange Offer - Withdrawal of Tenders."
2. GUARANTEED DELIVERY PROCEDURES.
If Holders desire to tender Series A capital securities pursuant to
the Exchange Offer and (i) certificates representing such Series A capital
securities are not lost but are not immediately available, (ii) time will not
permit this Letter of Transmittal, certificates representing such Holder's
Series A capital securities and all other required documents to reach the
Exchange Agent prior to the Expiration Date or (iii) the procedures for
book-entry transfer cannot be completed prior to the Expiration Date, such
Holders may effect a tender of Series A capital securities in accordance with
the guaranteed delivery procedures set forth in the Prospectus under the
caption "The Exchange Offer - Guaranteed Delivery Procedures."
Pursuant to the guaranteed delivery procedures: (i) such tender must
be made by or through an Eligible Institution; (ii) prior to the Expiration
Date the Exchange Agent must have received from such Eligible Institution at
one of the addresses set forth on the cover of this Letter of Transmittal a
properly completed and validly executed Notice of Guaranteed Delivery (by
manually signed facsimile transmission, mail or hand delivery) in
substantially the form provided with the Prospectus, setting forth the
name(s) and address(es) of the registered Holder(s) and the liquidation
amount of Series A capital securities being tendered and stating that the
tender is being made thereby and guaranteeing that, within three New York
Stock Exchange ("NYSE") trading days from the date of the Notice of
Guaranteed Delivery, the Letter of Transmittal (or a manually signed
facsimile thereof) properly completed and duly executed, or, in the case of a
book-entry transfer an Agent's Message together with certificates
representing the Series A capital securities (or confirmation of book-entry
transfer of such Series A capital securities into the Exchange Agent's
account at a Book-Entry Transfer Facility), and any other documents required
by this Letter of Transmittal and the instructions thereto, will be deposited
by such Eligible Institution with the Exchange Agent; and (iii) this Letter
of Transmittal (or a manually signed facsimile thereof), properly completed
and validly executed with any required signature guarantees, or, in the case
of a book-entry transfer, an Agent's Message, together with certificates for
all Series A capital securities in proper form for transfer (or a Book-Entry
Confirmation with respect
9
<PAGE>
to all tendered Series A capital securities), and any other required documents
must be received by the Exchange Agent within three NYSE trading days after the
date of such Notice of Guaranteed Delivery.
3. PARTIAL TENDERS.
If less than the entire liquidation amount of any Series A capital
securities evidenced by a submitted certificate is tendered, the tendering
Holder must fill in the liquidation amount tendered in the last column of the
box entitled "Description of Series A capital securities" herein. The entire
liquidation amount represented by the certificates for all Series A capital
securities delivered to the Exchange Agent will be deemed to have been
tendered, unless otherwise indicated. The entire liquidation amount of all
Series A capital securities not tendered or not accepted for exchange will be
sent (or, if tendered by book-entry transfer, returned by credit to the
account at the Book-Entry Transfer Facility designated herein) to the Holder
unless otherwise provided in the "Special Issuance Instructions" or "Special
Delivery Instructions" boxes of this Letter of Transmittal.
4. SIGNATURES ON THE LETTER OF TRANSMITTAL, BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the Holder(s) of the Series
A capital securities tendered hereby the signature(s) must correspond with the
name(s) as written on the face of the certificate(s) without alteration,
enlargement or any change whatsoever. If this Letter of Transmittal is signed by
a participant in one of the Book-Entry Transfer Facilities whose name is shown
as the owner of the Series A capital securities tendered hereby, the signature
must correspond with the name shown on the security position listing as the
owner of the Series A capital securities. If any of the Series A capital
securities tendered hereby are registered in the name of two or more Holders,
all such Holders must sign this Letter of Transmittal. If any tendered Series A
capital securities are registered in client names on several certificates, it
will be necessary to complete, sign and submit as many separate copies of this
Letter of Transmittal and any necessary accompanying documents as there are
different names in which certificates are held. If this Letter of Transmittal or
any certificates for Series A capital securities 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, unless waived by the Trust, proper
evidence satisfactory to the Trust of their authority so to act must be
submitted with this Letter of Transmittal.
IF THIS LETTER OF TRANSMITTAL IS EXECUTED BY A PERSON OR ENTITY WHO IS
NOT THE REGISTERED HOLDER, THEN THE REGISTERED HOLDER MUST SIGN A VALID BOND
POWER WITH THE SIGNATURE OF SUCH REGISTERED HOLDER GUARANTEED BY A PARTICIPANT
IN A RECOGNIZED MEDALLION SIGNATURE PROGRAM (A "MEDALLION SIGNATURE GUARANTOR").
No signature guarantee is required if (i) this Letter of Transmittal is signed
by the registered Holder(s) of the Series A capital securities tendered herewith
(or by a participant in one of the Book-Entry Transfer Facilities whose name
appears on a security position listing as the owner of Series A capital
securities) and certificates for Series B capital securities or for any Series A
capital securities for liquidation amounts not tendered or not accepted for
exchange are to be issued directly to such Holder(s) or, if tendered by a
participant in one of the Book-Entry Transfer Facilities, any Series A capital
securities for liquidation amounts not tendered or not accepted for exchange are
to be credited to such participant's account at such Book-Entry Transfer
Facility and neither the "Special Issuance Instructions" box nor the "Special
Delivery Instructions" box of this Letter of Transmittal has been completed or
(ii) such Series A capital securities are tendered for the account of an
Eligible Institution. IN ALL OTHER CASES ALL SIGNATURES ON LETTERS OF
TRANSMITTAL ACCOMPANYING SERIES A CAPITAL SECURITIES MUST BE GUARANTEED BY A
MEDALLION SIGNATURE GUARANTOR. In all such other cases (including if this Letter
of Transmittal is not signed by the Holder), the Holder must either properly
endorse the certificates for Series A capital securities tendered or transmit a
separate, properly completed bond power with this Letter of Transmittal (in
either case, executed exactly as the name(s) of the registered Holder(s)
appear(s) on such Series A capital securities, and, with respect to a
participant in a Book-Entry Transfer Facility whose name appears on a security
position listing as the owner of Series A capital securities, exactly as the
name(s) of the participant(s) appear(s) on such security position listing), with
the signature on the endorsement or bond power guaranteed by a Medallion
Signature Guarantor, unless such certificates or bond powers are executed by an
Eligible Institution. Endorsements on certificates for Series A capital
securities and signatures on bond powers provided in accordance with this
Instruction 4 by registered Holders not executing this Letter of Transmittal
must be guaranteed by a Medallion Signature Guarantor.
10
<PAGE>
5. SPECIAL ISSUANCE AND SPECIAL DELIVERY INSTRUCTIONS.
Tendering Holders should indicate in the applicable box or boxes the
name and address to which Series A capital securities for principal amounts not
tendered or not accepted for exchange or certificates for Series B capital
securities, if applicable, are to be issued or sent, if different from the name
and address of the Holder signing this Letter of Transmittal. In the case of
payment to a different name, the taxpayer identification or social security
number of the person named must also be indicated.
6. TAXPAYER IDENTIFICATION NUMBER.
Each tendering Holder is required to provide the Exchange Agent with
the Holder's social security or Federal employer identification number, on
Substitute Form W-9 which is provided under "Important Tax Information" below,
or alternatively to establish another basis for exemption from backup
withholding. A Holder must cross out Item (2) in the Certification box in Part
III of Substitute Form W-9 if such Holder is subject to backup withholding.
Failure to provide the information on the form may subject such Holder to 31%
Federal backup withholding tax on any payment made to the Holder with respect to
the Exchange Offer. The appropriate box in Part I of Substitute Form W-9 should
be checked if the tendering or consenting Holder has not been issued a Taxpayer
Identification Number ("TIN") and has either applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part I of Substitute Form W-9
is checked, the Holder should also sign the attached Certification of Awaiting
Taxpayer Identification Number. If the Exchange Agent is not provided with a TIN
within 60 days thereafter, the Exchange Agent will withhold 31% on all such
payments of the Series B capital securities until a TIN is provided to the
Exchange Agent.
7. TRANSFER TAXES.
The Trust will pay all transfer taxes applicable to the exchange and
transfer of Series A capital securities pursuant to the Exchange Offer, except
if (i) deliveries of certificates for Series A capital securities for principal
amounts not tendered or not accepted for exchange are registered or issued in
the name of any person other than the Holder of Series A capital securities
tendered thereby, (ii) tendered certificates are registered in the name of any
person other than the person signing this Letter of Transmittal or (iii) a
transfer tax is imposed for any reason other than the exchange of Series A
capital securities pursuant to the Exchange Offer, in which case the amount of
any 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 such taxes or exemption therefrom is not submitted herewith the
amount of taxes will be billed directly to such tendering Holder.
8. IRREGULARITIES.
All questions as to the form of all documents and the validity
(including time of receipt) and acceptance of all tenders and withdrawals of
Series A capital securities will be determined by the Trust, in its sole
discretion which determination shall be final and binding. ALTERNATIVE,
CONDITIONAL OR CONTINGENT TENDERS OF SERIES A CAPITAL SECURITIES WILL NOT BE
CONSIDERED VALID. The Trust reserves the absolute right to reject any and all
tenders of Series A capital securities that are not in proper form or the
acceptance of which, in the Trust's opinion, would be unlawful. The Trust also
reserves the right to waive any defects, irregularities or conditions of tender
as to particular Series A capital securities. The Trust's interpretations of the
terms and conditions of the Exchange Offer (including the instructions in this
Letter of Transmittal) will be final and binding. Any defect or irregularity in
connection with tenders of Series A capital securities must be cured within such
time as the Trust determines, unless waived by the Trust. Tenders of Series A
capital securities shall not be deemed to have been made until all defects or
irregularities have been waived by the Trust or cured. A defective tender (which
defect is not waived by the Trust or cured by the Holder) will not constitute a
valid tender of Series A capital securities and will not entitle the Holder to
Series B capital securities. None of the Trust, the Trustee, the Exchange Agent
or any other person will be under any duty to give notice of any defect or
irregularity in any tender or withdrawal of any Series A capital securities, or
incur any liability to Holders for failure to give any such notice.
11
<PAGE>
9. WAIVER OF CONDITIONS.
The Trust reserves the right, in its reasonable discretion, to amend or
waive any of the conditions to the Exchange Offer.
10. MUTILATED, LOST, STOLEN OR DESTROYED CERTIFICATES FOR SERIES A CAPITAL
SECURITIES.
Any Holder whose certificates for Series A capital securities have been
mutilated, lost, stolen or destroyed should write to or telephone the Trustee at
the address or telephone number set forth on the cover of this Letter of
Transmittal for the Exchange Agent.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering Series A capital
securities and requests for assistance or additional copies of the Prospectus,
this Letter of Transmittal, the Notice of Guaranteed Delivery or other documents
may be directed to the Exchange Agent, whose address and telephone number appear
on the cover of this Letter of Transmittal.
IMPORTANT TAX INFORMATION
Under Federal income tax laws, a Holder who tenders Series A capital
securities prior to receipt of the Series B capital securities is required to
provide the Exchange Agent with such Holder's correct TIN on the Substitute Form
W-9 below or otherwise establish a basis for exemption from backup withholding.
If such Holder is an individual, the TIN is his or her social security number.
If the Exchange Agent is not provided with the correct TIN, a $50 penalty may be
imposed by the Internal Revenue Service ("IRS") and payments, including any
Series B capital securities, made to such Holder with respect to Series A
capital securities exchanged pursuant to the Exchange Offer may be subject to
backup withholding.
Certain Holders (including among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on the
Substitute Form W-9. A foreign person may qualify as an exempt recipient by
submitting to the Exchange Agent a properly completed IRS Form W-8 signed under
penalties of perjury, attesting to that Holder's exempt status. A Form W-8 can
be obtained from the Exchange Agent. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional instructions. Holders are urged to consult their own tax advisors to
determine whether they are exempt. If backup withholding applies, the Exchange
Agent is required to withhold 31% of any payments made to the Holder or other
payee. Backup withholding is not an additional Federal income tax. Rather, the
Federal income tax liability of persons 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 from the IRS.
PURPOSE OF SUBSTITUTE FORM W-9. To prevent backup withholding on
payments, including any Series B capital securities, made with respect to Series
A capital securities exchanged pursuant to the Exchange Offer, the Holder is
required to provide the Exchange Agent with (i) the Holder's correct TIN by
completing the form below, certifying that the TIN provided on the Substitute
Form W-9 is correct (or that such Holder is awaiting a TIN) and that (A) such
Holder is exempt from backup withholding, (B) the Holder has not been notified
by the IRS that the Holder is subject to backup withholding as a result of
failure to report all interest or dividends or (C) the IRS has notified the
Holder that the Holder is no longer subject to backup withholding, and (ii) if
applicable, an adequate basis for exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT. The Holder is required to give
the Exchange Agent the TIN (e.g., social security number or employer
identification number) of the registered Holder. If the Series A capital
securities are held in more than one name or are held 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.
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<PAGE>
SUBSTITUTE FORM W-9
SUBSTITUTE
Form W-9
Department Of The Treasury
Internal Revenue Service
Payor's Request For
Taxpayer
Identification Number
("TIN")
and Certification
PART 1 - PLEASE PROVIDE YOUR TIN ON THE LINE AT RIGHT AND CERTIFY BY SIGNING AND
DATING BELOW
TIN: ______________________________________
Social Security Number or
Employer Identification Number
PART 2 - TIN Applied For [ ]
CERTIFICATION - UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) the number shown on this form is 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.
Signature______________________ Date ______________________, 2000
You must cross out item (iii) in Part (2) above if you have been notified by the
IRS 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.
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.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 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 Series B capital securities shall be
retained until I provide a taxpayer
13
<PAGE>
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 ______________________, 1999
14
<PAGE>
NOTICE OF GUARANTEED DELIVERY OF
9.875% CAPITAL SECURITIES, SERIES A
OF INTERWEST CAPITAL TRUST I
This form, or one substantially equivalent hereto, must be used to
accept the Exchange Offer of InterWest Capital Trust I (the "Trust") made
pursuant to the Prospectus, dated February 23, 2000 (the "Prospectus"), if
certificates for Series A capital securities are not immediately available or
if the procedure for book-entry transfer cannot be completed on a timely
basis or time will not permit all required documents to reach the Trust prior
to 5:00 p.m., New York City time, on the Expiration Date. This form may be
delivered or transmitted by facsimile transmission, mail or hand delivery to
Wilmington Trust Company, Property Trustee of the Trust, as Exchange Agent
(the "Exchange Agent") as set forth below. Capitalized terms not defined
herein are defined in the Prospectus.
Delivery to: Wilmington Trust Company, as Exchange Agent:
BY HAND OR OVERNIGHT DELIVERY, OR BY FACSIMILE TRANSMISSIONS:
REGISTERED OR CERTIFIED MAIL: (ELIGIBLE INSTITUTIONS ONLY)
Wilmington Trust Company, as Exchange
Agent (302) 651-8882
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001 To confirm by telephone or
Attention: Corporate Trust Administration for information call:
- InterWest Capital Trust I
Exchange Offer (302) 651-1000
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION VIA A FACSIMILE NUMBER OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
Ladies and Gentlemen:
Upon the terms and conditions set forth in the Prospectus and the
accompanying Letter of Transmittal, the undersigned hereby tenders to the
Company the aggregate liquidation amount of Series A capital securities
specified below pursuant to the guaranteed delivery procedures set forth
under the caption "The Exchange Offer - Procedures for Tendering Series A
Securities - Guaranteed Delivery" in the Prospectus. By so tendering, the
undersigned does hereby make, at and as of the date hereof, the
representations and warranties of a tendering Holder of Series A capital
securities set forth in the Letter of Transmittal. The undersigned hereby
tenders the Series A capital securities listed below:
<TABLE>
<S><C>
Certificate Number(s) (if available) Aggregate liquidation Amount Tendered
--------------------------------------- -----------------------------------
--------------------------------------- -----------------------------------
--------------------------------------- ----------------------------------
</TABLE>
If Series A capital securities will be tendered by book-entry transfer, please
provide the following information:
Name of Tendering Institution: Depository Trust Company Account Number:
- ---------------------------- ----------------------------------------
<PAGE>
<TABLE>
<S><C>
PLEASE SIGN HERE
X
------------------------------------------------ ----------------------------
Signature(s) of Owner(s) or Authorized Signatory Date
Area Code and Telephone Number:
------------------------------------------------
</TABLE>
Must be signed by the holder(s) of Series A capital securities as their
Name(s)appear(s) on certificates for Series A capital securities or on a
security position listing, or by person(s) authorized to become registered
holder(s) by endorsement and documents transmitted with this Notice of
Guaranteed Delivery. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title
below.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
Capacity:
-------------------------------------------------------------------
Address(es):
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
2
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a financial institution (including most banks,
savings and loan associations and brokerage houses) that is a participant in
the Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Program or the Stock Exchanges Medallion Program,
guarantees that the certificates representing the principal amount of Series
A capital securities tendered hereby in proper form for transfer, or timely
confirmation of the book-entry transfer of such Series A capital securities
into the Exchange Agent's account at The Depository Trust Company pursuant to
the procedures set forth in "The Exchange Offer - Procedures for Tendering
Series A Securities -Guaranteed Delivery" section of the Prospectus, together
with one or more properly completed and duly executed Letters of Transmittal
(or facsimile thereof or Agent's Message in lieu thereof), and any required
signature guarantee and any other documents required by the Letter of
Transmittal, will be received by the Exchange Agent at the address set forth
above, no later than three New York Stock Exchange trading days after the
date of execution of the Notice of Guaranteed Delivery.
<TABLE>
<S><C>
- --------------------------------------------- --------------------------------
Name of Firm Authorized Signature
- --------------------------------------------- --------------------------------
Street Address Name (please print)
- --------------------------------------------- --------------------------------
City, State and Zip Code Title
- --------------------------------------------- --------------------------------
Area Code and Telephone Number Date
</TABLE>
DO NOT SEND CERTIFICATES FOR SERIES A CAPITAL SECURITIES WITH THIS FORM. ACTUAL
SURRENDER OR CERTIFICATES FOR SERIES A CAPITAL SECURITIES MUST BE MADE PURSUANT
TO, AND BE ACCOMPANIED BY, THE EXECUTED LETTER OF TRANSMITTAL.
3
