EXHIBIT 25.4
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)
Wintrust Financial Corporation
(Exact name of obligor as specified in its charter)
Illinois 36-3873352
(State of incorporation) (I.R.S. employer
identification no.)
727 North Bank Lane
Lake Forest, Illinois 60045-1951
(Address of principal executive offices) (Zip Code)
Guarantee of Trust Preferred Securities
(Title of the indenture securities)
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 16. 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 6th day
of October, 2004.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Anita Dallago By: /s/ Donald G. MacKelcan
------------------------ -----------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
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, 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 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
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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, 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, 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").
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(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 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
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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 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.
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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 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-
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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 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
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(E) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with
or into or otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this
Article FIFTEENTH shall mean any transaction which is
referred to in any one or more of clauses (A) through
(E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH
shall not be applicable to any particular business combination
and such business combination shall require only such
affirmative vote as is required by law and any other
provisions of the Charter or Act of Incorporation or By-Laws
if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary)
who or which as of the record date for the determination of
stockholders entitled to notice of and to vote on such 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
8
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.
(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."
9
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 16, 2003
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
----------------------
Section 1. Annual Meeting. 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. Special meetings of stockholders may be
called at any time by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the President.
Section 3. Notice. 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. Quorum. 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 smaller 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 2
DIRECTORS
---------
Section 1. Management. The affairs and business of the Company shall be
managed by or under the direction of the Board of Directors.
Section 2. Number. The authorized number of directors that shall
constitute the Board of Directors shall be fixed from time to time by or
pursuant to a resolution passed by a majority of the Board of Directors within
the parameters set by the Charter of the Company. No more than two directors may
also be employees of the Company or any affiliate thereof.
Section 3. Qualification. In addition to any other provisions of these
Bylaws, to be qualified for nomination for election or appointment to the Board
of Directors, a person must have not attained the age of sixty-nine years at the
time of such election or appointment, provided however, the Nominating and
Corporate Governance Committee may waive such qualification as to a particular
candidate otherwise qualified to serve as a director upon a good faith
determination by such committee that such a waiver is in the best interests of
the Company and its stockholders. The Chairman of the Board and the Chief
Executive Officer shall not be
qualified to continue to serve as directors upon the termination of their
service in those offices for any reason.
Section 4. Meetings. 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, the Chief Executive Officer or the President.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called at any time by the Chairman of the Board, the Chief Executive
Officer or the President, and shall be called upon the written request of a
majority of the directors.
Section 6. Quorum. 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 7. Notice. 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 8. Vacancies. 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 9. Organization Meeting. The Board of Directors at its first
meeting after its election by the stockholders shall appoint an Executive
Committee, an Audit Committee, a Compensation Committee and a Nominating and
Corporate Governance Committee, and shall elect from its own members a Chairman
of the Board, a Chief Executive Officer and a President, who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Chief Financial Officer, who may be the same person, and may appoint at any
time such committees as it may deem advisable. The Board of Directors may also
elect at such meeting one or more Associate Directors. The Board of Directors,
the Executive Committee or another committee designated by the Board of
Directors may elect or appoint such other officers as they may deem advisable.
Section 10. Removal. 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 11. Responsibility of Officers. The Board of Directors may
designate an officer to be in charge of such departments or divisions of the
Company as it may deem advisable.
2
Section 12. Participation in Meetings. The Board of Directors or any
committee of the Board of Directors may participate in a meeting of the Board of
Directors or such committee, as the case may be, by conference telephone, video
facilities or other communications equipment. Any action required or permitted
to be taken at any meeting of the Board of Directors or any committee thereof
may be taken without a meeting if all of the members of the Board of Directors
or the committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the Board of Directors or such
committee.
ARTICLE 3
COMMITTEES OF THE BOARD OF DIRECTORS
------------------------------------
Section 1. Executive Committee.
(A) The Executive Committee shall be composed of not more than
nine (9) members, who shall be selected by the Board of Directors from its own
members, and who shall hold office at the pleasure of the Board of Directors.
(B) The Executive Committee shall have and may exercise, to
the fullest extent permitted by law, all of the powers of the Board of Directors
when it is not in session to transact all business for and on 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, the Chairman of the Board, the Chief Executive Officer or the
President. 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) In the event of an emergency 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 Bylaws, any two available
members of the Executive Committee as constituted immediately prior to such
emergency 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 3 of these Bylaws. In the event of the unavailability, at
such time, of a minimum of two members of the 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 Bylaw 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
3
Bylaws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementing
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 Bylaws.
Section 2. Audit Committee.
(A) The Audit Committee shall be composed of not more than
five (5) members, who shall be selected by the Board of Directors from its own
members, none of whom shall be an officer or employee of the Company, and shall
hold office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over
the Audit Services 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 Services 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 its
Chairperson, the Chairman of the Board, the Chief Executive Officer, the
President or a majority of the Committee's members shall deem it to be proper
for the transaction of its business. A majority of the Committee's members shall
constitute a quorum for the transaction of business. The acts of the majority at
a meeting at which a quorum is present shall constitute action by the Committee.
Section 3. 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, none of whom shall be an officer or employee of the Company, and
shall hold office at the pleasure of the Board of Directors.
(B) The Compensation Committee shall in general advise upon
all matters of policy concerning compensation, including salaries and employee
benefits.
(C) The Compensation Committee shall meet whenever and
wherever its Chairperson, the Chairman of the Board, the Chief Executive
Officer, the President or a majority of the Committee's members shall deem it to
be proper for the transaction of its business. A majority of the Committee's
members shall constitute a quorum for the transaction of business. The acts of
the majority at a meeting at which a quorum is present shall constitute action
by the Committee.
4
Section 4. Nominating and Corporate Governance Committee.
(A) The Nominating and Corporate Governance Committee shall be
composed of not more than five members, who shall be selected by the Board of
Directors from its own members, none of whom shall be an officer or employee of
the Company, and shall hold office at the pleasure of the Board of Directors.
(B) The Nominating and Corporate Governance Committee shall
provide counsel and make recommendations to the Chairman of the Board and the
full Board with respect to the performance of the Chairman of the Board and the
Chief Executive Officer, candidates for membership on the Board of Directors and
its committees, matters of corporate governance, succession planning for the
Company's executive management and significant shareholder relations issues.
(C) The Nominating and Corporate Governance Committee shall
meet whenever and wherever its Chairperson, the Chairman of the Board, the Chief
Executive Officer, the President, or a majority of the Committee's members shall
deem it to be proper for the transaction of its business. A majority of the
Committee's members shall constitute a quorum for the transaction of business.
The acts of the majority at a meeting at which a quorum is present shall
constitute action by the Committee.
Section 5. Other Committees. The Company may have such other committees
with such powers as the Board may designate from time to time by resolution or
by an amendment to these Bylaws.
Section 6. 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 at the pleasure of the
Board of Directors.
(B) Associate directors shall be entitled to attend all
meetings of directors and participate in the discussion of all matters brought
to the Board of Directors, but will not have a right to vote.
Section 7. Absence or Disqualification of Any Member of a Committee. In
the absence or disqualification of any member of any committee created under
Article III of these Bylaws, 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 4
OFFICERS
--------
Section 1. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors and shall have such further
authority and powers and shall perform such duties the Board of Directors may
assign to him from time to time.
5
Section 2. Chief Executive Officer. The Chief Executive Officer shall
have the powers and duties pertaining to the office of Chief Executive Officer
conferred or imposed upon him by statute, incident to his office or as the Board
of Directors may assign to him from time to time. In the absence of the Chairman
of the Board, the Chief Executive Officer shall have the powers and duties of
the Chairman of the Board.
Section 3. President. The President shall have the powers and duties
pertaining to the office of the President conferred or imposed upon him by
statute, incident to his office or as the Board of Directors may assign to him
from time to time. In the absence of the Chairman of the Board and the Chief
Executive Officer, the President shall have the powers and duties of the
Chairman of the Board.
Section 4. Duties. The Chairman of the Board, the Chief Executive
Officer 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. Vice Presidents. There may be one or more Vice Presidents,
however denominated by the Board of Directors, who may at any time perform all
of the duties of the Chairman of the Board, the Chief Executive Officer and/or
the President and such other powers and duties incident to their respective
offices or as the Board of Directors, the Executive Committee, the Chairman of
the Board, the Chief Executive Officer or the President or the officer in charge
of the department or division to which they are assigned may assign to them from
time to time.
Section 6. Secretary. 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,
recording the same in the minute books of the Company and in general notifying
the Board of Directors of material matters affecting the Company on a timely
basis. In addition to the other notice requirements of these Bylaws 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 such meeting. He shall have
custody of the corporate seal, affix the same to any documents requiring such
corporate seal, attest the same and perform other duties incident to his office.
Section 7. Chief Financial Officer. The Chief Financial Officer 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 transactions of the Company. He shall have general
supervision of the expenditures of the Company and periodically shall report to
the Board of Directors the condition of the Company, and perform such other
duties incident to his office or as the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or the
President may assign to him from time to time.
6
Section 8. Controller. 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 or the Audit Committee at
appropriate times a report relating to the general condition and internal
operations of the Company and perform other duties incident to his office.
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. Audit Officers. The officer designated by the Board of
Directors to be in charge of the Audit Services Division of the Company, with
such title as the Board of Directors shall prescribe, shall report to and be
directly responsible to the Audit Committee and 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 Services
Division.
Section 10. Other Officers. 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 of Assistant Secretary of the Company and who may perform such
duties as may be prescribed by the officer in charge of the department or
division to which they are assigned.
Section 11. Powers and Duties of Other Officers. 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, the Chairman of the Board, the Chief Executive Officer or
the President and the officer in charge of the department or division to which
they are assigned.
Section 12. Number of Offices. Any one or more offices of the Company
may be held by the same person, except that (A) no individual may hold more than
one of the offices of Chief Financial Officer, Controller or Audit Officer and
(B) none of the Chairman of the Board, the Chief Executive Officer or the
President may hold any office mentioned in Section 12(A).
ARTICLE 5
STOCK AND STOCK CERTIFICATES
----------------------------
Section 1. Transfer. Shares of stock shall be transferable on the books
of the Company and a transfer book shall be kept in which all transfers of stock
shall be recorded.
7
Section 2. Certificates. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Company by the Chairman of
the Board, the Chief Executive Officer or the President or a Vice President, and
by the Secretary or an Assistant Secretary, of the Company, certifying the
number of shares owned by him in the Company. The corporate seal affixed
thereto, and any of or all the signatures on the certificate, may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Company with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. 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. Record Date. The Board of Directors 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 of
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days preceding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE 6
SEAL
----
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 7
FISCAL YEAR
-----------
The fiscal year of the Company shall be the calendar year.
ARTICLE 8
EXECUTION OF INSTRUMENTS OF THE COMPANY
---------------------------------------
The Chairman of the Board, the Chief Executive Officer, the President
or any Vice President, however denominated by the Board of Directors, shall have
full power and authority
8
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 9
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
---------------------------------------------------
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 authorized by the Company to perform such special services as
the Board of Directors may from time to time determine in accordance with any
guidelines the Board of Directors may adopt for such services, and shall be paid
for such special services so performed reasonable compensation as may be
determined by the Board of Directors.
ARTICLE 10
INDEMNIFICATION
---------------
Section 1. Persons Covered. The Company 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 of the Company or is or was serving
at the request of the Company as a director, officer, employee, fiduciary or
agent of another corporation, partnership, limited liability company, joint
venture, trust, enterprise or non-profit entity that is not a subsidiary or
affiliate of the Company, including service with respect to employee benefit
plans, against all liability and loss suffered and expenses reasonably incurred
by such person. The Company shall be required to indemnify such a person in
connection with a proceeding initiated by such person only if the proceeding was
authorized by the Board of Directors.
9
The Company may 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 threatened to be made a party or is otherwise
involved in any proceeding by reason of the fact that he, or a person for whom
he is the legal representative, is or was an officer, employee or agent of the
Company or a director, officer, employee or agent of a subsidiary or affiliate
of the Company, against all liability and loss suffered and expenses reasonably
incurred by such person. The Company may indemnify any such person in connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of Directors.
Section 2. Advance of Expenses. The Company shall pay the expenses
incurred in defending any proceeding involving a person who is or may be
indemnified pursuant to Section 1 in advance of its final disposition, provided,
however, that the payment of expenses incurred by such a person in advance of
the final disposition of the proceeding shall be made only upon receipt of an
undertaking by that person to repay all amounts advanced if it should be
ultimately determined that the person is not entitled to be indemnified under
this Article 10 or otherwise.
Section 3. Certain Rights. If a claim under this Article 10 for (A)
payment of expenses or (B) indemnification by a director or person who is or was
serving at the request of the Company as a director, officer, employee,
fiduciary or agent of another corporation, partnership, limited liability
company, joint venture, trust, enterprise or nonprofit entity that is not a
subsidiary or affiliate of the Company, including service with respect to
employee benefit plans, is not paid in full within sixty days after a written
claim therefor has been received by the Company, 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 Company shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under
applicable law.
Section 4. Non-Exclusive. The rights conferred on any person by this
Article 10 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 Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 5. Reduction of Amount. The Company's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit entity.
Section 6. Effect of Modification. Any amendment, repeal or
modification of the foregoing provisions of this Article 10 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 amendment, repeal or modification.
10
ARTICLE 11
AMENDMENTS TO THE BYLAWS
------------------------
These Bylaws may be altered, amended or repealed, in whole or in part,
and any new Bylaw or Bylaws adopted at any regular or special meeting of the
Board of Directors by a vote of a majority of all the members of the Board of
Directors then in office.
ARTICLE 12
MISCELLANEOUS
-------------
Whenever used in these Bylaws, the singular shall include the plural,
the plural shall include the singular unless the context requires otherwise and
the use of either gender shall include both genders.
11
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: By:
---------------------
Name: Donald G. MacKelcan
Title: Vice President
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 March 31, 2004.
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ASSETS
Thousands of dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................................173,842
Interest-bearing balances.............................................................................. 0
Held-to-maturity securities.................................................................................. 3,355
Available-for-sale securities.............................................................................1,624,384
Federal funds sold in domestic offices......................................................................485,666
Securities purchased under agreements to resell..............................................................13,700
Loans and lease financing receivables:
Loans and leases held for sale...........................................................................0
Loans and leases, net of unearned income.........................................................5,839,156
LESS: Allowance for loan and lease losses..........................................................80,750
Loans and leases, net of unearned income, allowance, and reserve.................................5,758,406
Assets held in trading accounts...................................................................................0
Premises and fixed assets (including capitalized leases)....................................................141,663
Other real estate owned.................................................................................... 1,061
Investments in unconsolidated subsidiaries and associated companies...........................................1,755
Customers' liability to this bank on acceptances outstanding......................................................0
Intangible assets:
a. Goodwill.......................................................................................... 157
b. Other intangible assets........................................................................ 11,615
Other assets............................................................................................... 151,998
Total assets..............................................................................................8,367,602
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LIABILITIES
Deposits:
In domestic offices.......................................................................................6,716,153
Noninterest-bearing .............................................................................1,056,474
Interest-bearing.................................................................................5,659,679
Federal funds purchased in domestic offices............................................................... 79,544
Securities sold under agreements to repurchase............................................................. 190,877
Trading liabilities (from Schedule RC-D)..........................................................................0
Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases:..............596,427
Bank's liability on acceptances executed and outstanding..........................................................0
Subordinated notes and debentures.................................................................................0
Other liabilities (from Schedule RC-G)......................................................................116,370
Total liabilities.........................................................................................7,699,371
EQUITY CAPITAL
Perpetual preferred stock and related surplus.....................................................................0
Common Stock....................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................112,358
a. Retained earnings.......................................................................................565,939
b. Accumulated other comprehensive income.............................................................. (10,566)
Total equity capital........................................................................................668,231
Total liabilities, limited-life preferred stock, and equity capital.......................................8,367,602
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