e8vk
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 9, 2005
CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC
(Exact name of registrant as specified in its charter)
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Texas
(State or other jurisdiction
of incorporation)
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1-3187
(Commission File Number)
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22-3865106
(IRS Employer
Identification No.) |
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1111 Louisiana
Houston, Texas
(Address of principal executive offices)
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77002
(Zip Code) |
Registrants telephone number, including area code: (713) 207-1111
CENTERPOINT ENERGY TRANSITION BOND COMPANY II, LLC
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction
of incorporation)
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333-121505
(Commission File Number)
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59-3790472
(IRS Employer
Identification No.) |
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1111 Louisiana, Suite 4655B
Houston, Texas
(Address of principal executive offices)
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77002
(Zip Code) |
Registrants telephone number, including area code: (713) 207-5222
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
The information in Item 1.01 of this combined report applies to and is filed by
CenterPoint Energy Transition Bond Company II, LLC (the Company) and CenterPoint Energy Houston
Electric, LLC (CenterPoint Houston). The information in Item 8.01 of this report applies to and
is filed separately by the Company.
Item 1.01 Entry Into a Material Definitive Agreement.
On December 9, 2005, the Company and CenterPoint Houston entered into an Underwriting
Agreement with Lehman Brothers Inc., Credit Suisse First Boston LLC and Greenwich Capital Markets,
Inc., on behalf of themselves and as representatives of the several underwriters named therein
(collectively, the Underwriters), covering the issue and sale of $1,851,000,000 aggregate
principal amount of the Companys Senior Secured Transition Bonds, Series A (the Bonds). The
Bonds are registered under the Securities Act of 1933, as amended (the Securities Act),
pursuant to the registration statement on Form S-3 (Registration No. 333-121505) of the Company, as
supplemented by the Preliminary Prospectus Supplement dated December
6, 2005 and by the Prospectus Supplement dated December 9, 2005 relating to the Bonds filed with
the Securities and Exchange Commission pursuant to Rule 424(b) of the Securities Act.
Closing of the issuance and sale of the Bonds is scheduled for December 16, 2005 and is
subject to customary conditions contained in the Underwriting
Agreement. Approvals of the Public Utility Commission of Texas necessary to
issue the Bonds have been obtained.
The Underwriters have agreed in the Underwriting Agreement to purchase all
of the Bonds if any of them are purchased. If an Underwriter defaults, the agreement provides that
the purchase commitment of the nondefaulting Underwriters may be increased or the agreement may be
terminated. The Company and CenterPoint Houston have agreed in the Underwriting Agreement to
indemnify the Underwriters against certain liabilities, including liabilities under the Securities
Act, or to contribute to payments the Underwriters may be required to make in respect of those
liabilities.
Item 8.01 Other Events.
In accordance with Section 305(b) of the Trust Indenture Act of 1939, as amended, the
Statement of Eligibility and Qualification on Form T-1 of Wilmington Trust Company to act as
trustee under the indenture relating to the Bonds is filed as Exhibit 25.1 to this report.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: December 15, 2005
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CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC
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By: |
/s/ Marc Kilbride
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Marc Kilbride |
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Vice President and Treasurer |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: December 15, 2005
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CENTERPOINT ENERGY TRANSITION BOND COMPANY II, LLC
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By: |
/s/ Marc Kilbride
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Marc Kilbride |
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Sole Manager |
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INDEX TO EXHIBITS
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Exhibit Number |
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Exhibit Description |
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25.1
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Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended. |
exv25w1
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)þ
WILMINGTON TRUST COMPANY
(Exact name of Trustee as specified in its charter)
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Delaware |
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51-0055023
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(Jurisdiction of incorporation of organization if not a U.S.
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(I.R.S. Employer Identification No.) |
national bank)
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1100 North Market Street
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Wilmington, Delaware 19890-0001
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(302) 651-1000
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(Address of principal executive offices, including zip code)
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Cynthia L. Corliss
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Vice President and Assistant General Counsel
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Wilmington Trust Company
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1100 North Market Street
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Wilmington, Delaware 19890-0001
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(302) 651-8516
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(Name, address, including zip code, and telephone number, including area code, of agent of service)
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CENTERPOINT ENERGY TRANSITION BOND COMPANY II, LLC
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(Exact name of obligor as specified in its charter)
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Delaware
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59-3790472 |
(State or other jurisdiction or incorporation or organization) |
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(I.R.S. Employer Identification No.) |
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1111 Louisiana
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Suite 4655B
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Houston, Texas 77002
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(713) 207-5222
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(Address of principal executive offices, including zip code)
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Transition Bonds Issuable in Series
(Title of the indenture securities) |
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
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Name and address of each examining or supervising authority to which it is subject. |
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Federal Deposit Insurance Corp.
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State Bank Commissioner |
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20 Exchange Place, Room 6014
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555 East Loockerman Street, Suite 210 |
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New York, New York 10005
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Dover, Delaware 19901 |
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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 information
available to the trustee, 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.
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A copy of the Charter of Wilmington Trust Company (Exhibit 1), which includes the
certificate of authority of Wilmington Trust Company to commence business (Exhibit
2) and the authorization of Wilmington Trust Company to exercise corporate trust
powers (Exhibit 3). |
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A copy of the existing By-Laws of Wilmington Trust Company (Exhibit 4). |
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Consent of Wilmington Trust Company required by Section 321(b) of the Trust
Indenture Act (Exhibit 6). |
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A copy of the latest Report of Condition of Wilmington Trust Company (Exhibit 7). |
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 14th day of December, 2005.
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[SEAL] |
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WILMINGTON TRUST COMPANY |
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Attest:
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/s/ J. Luce
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By:
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/s/ Erwin Soriano |
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Assistant Secretary
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Name:
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Erwin Soriano |
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Title:
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Vice President |
EXHIBIT 1
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.:
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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. |
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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.
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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. |
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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. |
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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. |
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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. |
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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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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. |
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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, |
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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. |
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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. |
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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, 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:
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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. |
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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. |
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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 |
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or mixed, wherever situated.
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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. |
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To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as natural
persons might or could do, to purchase or otherwise acquire, to hold, own, to
mortgage, sell, convey or otherwise dispose of, real and personal property, of
every class and description, in any State, District, Territory or Colony of the
United States, and in any foreign country or place. |
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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:
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One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as Preferred Stock); and |
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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:
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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; |
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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; |
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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; |
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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. |
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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. |
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The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock of such series; and |
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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. |
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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. |
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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 |
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distribution to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
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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
7
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 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:
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(A) |
|
any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter |
8
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.
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(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.
9
|
(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, 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 |
10
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.
11
EXHIBIT 4
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on December 16, 2004
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE 1
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 stockholders 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 directors 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 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, or a 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.
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. 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.
2
(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 Committees members shall
deem it to be proper for the transaction of its business. A majority of the Committees 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 2. 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 Committees members
shall deem it to be proper for the transaction of its business. A majority of the Committees
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. 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
Companys 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 Committees members shall deem it to be proper for the transaction
of its business. A majority of the Committees 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.
3
Section 4. 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 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 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 6. 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.
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 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 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
4
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 Chairman of the Board, the Chief Executive Officer or the
President may assign to him from time to time.
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 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).
5
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.
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.
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 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,
6
ratification, approval or confirmation by the Board of Directors, and any and all such instruments shall have the same force and validity
as though expressly authorized by the Board of Directors.
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 or associate director of the Company, a member of an advisory board the Board
of Directors of the Company or any of its subsidiaries may appoint from time to time 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.
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.
7
Section 3. Certain Rights. If a claim under this Article 10 for (A) payment of
expenses or (B) indemnification by a director, associate director, member of an advisory board the
Board of Directors of the Company or any of its subsidiaries may appoint from time to time or a
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 Companys 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.
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.
8
EXHIBIT 6
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
request therefor.
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WILMINGTON TRUST COMPANY
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Dated: December 14, 2005 |
By: |
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Name: |
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Title: |
Vice President |
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EXHIBIT 7
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.
REPORT
OF CONDITION
Consolidating domestic subsidiaries of the
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WILMINGTON TRUST COMPANY
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of
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WILMINGTON |
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Name of Bank
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City |
in the State of DELAWARE , at the close of business on September 30, 2005.
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ASSETS |
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Thousands of dollars |
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Cash and balances due from depository institutions: |
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Noninterest-bearing balances and currency and coins |
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246,525 |
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Interest-bearing balances |
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0 |
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Held-to-maturity securities |
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2,472 |
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Available-for-sale securities |
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1,587,116 |
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Federal funds sold in domestic offices |
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385,754 |
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Securities purchased under agreements to resell |
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63,385 |
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Loans and lease financing receivables: |
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Loans and leases held for sale |
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0 |
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Loans and leases, net of unearned income |
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6,695,164 |
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LESS: Allowance for loan and lease losses |
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83,852 |
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Loans and leases, net of unearned income, allowance, and reserve |
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6,611,312 |
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Assets held in trading accounts |
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0 |
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Premises and fixed assets (including capitalized leases) |
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136,049 |
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Other real estate owned |
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199 |
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Investments in unconsolidated subsidiaries and associated companies |
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2,550 |
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Customers liability to this bank on acceptances outstanding |
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0 |
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Intangible assets: |
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a. Goodwill
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1,116 |
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b. Other intangible assets |
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9,628 |
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Other assets |
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196,569 |
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Total assets |
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9,242,675 |
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2
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LIABILITIES |
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Deposits: |
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In domestic offices |
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7,392,517 |
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Noninterest-bearing |
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1,054,682 |
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Interest-bearing |
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6,337,835 |
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Federal funds purchased in domestic offices |
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246,375 |
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Securities sold under agreements to repurchase |
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354,404 |
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Trading liabilities (from Schedule RC-D) |
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0 |
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Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases: |
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378,739 |
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Banks liability on acceptances executed and outstanding |
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0 |
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Subordinated notes and debentures |
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0 |
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Other liabilities (from Schedule RC-G) |
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144,486 |
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Total liabilities |
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8,516,521 |
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EQUITY CAPITAL |
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Perpetual preferred stock and related surplus |
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0 |
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Common Stock |
|
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500 |
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Surplus (exclude all surplus related to preferred stock) |
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112,358 |
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a. Retained earnings
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647,388 |
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b. Accumulated other comprehensive income |
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(34,092) |
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Total equity capital |
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726,154 |
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Total liabilities, limited-life preferred stock, and equity capital |
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9,242,675 |
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3