posasr
As Filed With The Securities And Exchange Commission On September 22, 2008
Registration No. 333-147694
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WILMINGTON TRUST CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
51-0328154
(I.R.S. Employer Identification No.)
Wilmington Trust Corporation
Rodney Square North
1100 North Market Street 19890
(302) 651-1000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive
Offices)
(Name And Address, Including Zip Code, And Telephone Number, Including Area Code, Of Agent For Service Of
Process)
Copies To:
|
|
|
|
|
Gerard A. Chamberlain, Esquire
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(302) 651-1268
|
|
Richard F. Langan, Jr., Esquire
Nixon Peabody LLP
437 Madison Avenue
New York, New York 10022
(212) 940-3000
|
|
Roxane F. Reardon, Esquire
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York, 10017
(212) 455-2000 |
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this Post-Effective No. 1 to the Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the following box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b)
under the Securities Act, please check the following box and list the Securities Act registration
number of the earlier effective registration statement for the same offering: o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act,
check the following box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company.
See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
|
|
|
|
|
|
|
Large accelerated filer
þ
|
|
Accelerated filer
o
|
|
Non-accelerated filer o
|
|
Smaller reporting company o |
|
|
|
|
(Do not check if a smaller reporting company) |
|
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed |
|
|
Proposed |
|
|
|
|
|
|
|
|
|
|
|
|
|
maximum |
|
|
maximum |
|
|
Amount of |
|
|
|
|
|
Amount to be |
|
|
offering price |
|
|
aggregate |
|
|
registration |
|
|
Title of each class of securities to be registered |
|
|
registered |
|
|
per unit |
|
|
offering price |
|
|
fee |
|
|
Common
Stock, $1.00 Par Value Per Share
|
|
|
(1)(2) |
|
|
(1)(2) | |
|
(1)(2) | |
|
|
(3 |
) |
|
|
Preferred Stock Purchase Rights (4)
|
|
|
(1)(2) | |
|
(1)(2) | |
|
(1)(2) | |
|
|
(3 |
) |
|
|
Debt Securities
|
|
|
(1)(2) | |
|
(1)(2) | |
|
(1)(2) | |
|
|
(3 |
) |
|
|
|
|
|
(1) |
|
Not applicable pursuant to Form S-3 General Instruction II(E). Also see footnote
(3) below. |
|
(2) |
|
An indeterminate aggregate initial offering price or number of securities of each
identified class is being registered as may be issued at indeterminate prices from time to
time. Securities registered under this registration statement may be sold either separately
or as units comprised of more than one type of security registered hereunder. The securities
registered also include unspecified amounts and numbers of securities that may be issued upon
conversion of or exchange for securities that provide for conversion or exchange or pursuant
to the antidilution provisions of any such securities. Separate consideration may or may not
be received for securities issuable on exercise, conversion, or exchange of other securities
or that are issued in units. |
|
(3) |
|
In accordance with Rule 456(b) and Rule 457(r), the registrant is deferring
payment of the entire registration fee. |
|
(4) |
|
Each share of common stock includes a preferred stock purchase right as described
under Description Of Common Stock . |
Explanatory Note
This Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 of Wilmington Trust
Corporation (File No. 333-147694) is being filed for the purpose of registering additional classes
of securities to the Registration Statement pursuant to Rule 413 and filing a revised base
prospectus to include such additional securities. This Post-Effective Amendment No. 1 shall become
effective immediately upon filing with the Securities and Exchange Commission.
PROSPECTUS
WILMINGTON TRUST CORPORATION
COMMON STOCK
DEBT SECURITIES
We may offer, issue, and sell the types of securities listed above from time to time.
This prospectus provides you with a general description of certain of the securities we may offer.
Each time we offer securities for sale, we will provide a supplement to this prospectus that
contains specific information about the offering, the terms of the securities being offered, and,
if applicable, a description of the securities being offered. Any such prospectus supplement also
may add to or update information contained in this prospectus. This prospectus may not be used to
offer to sell any securities unless accompanied by a prospectus supplement. You should read this
prospectus and any accompanying prospectus supplement carefully before you make your investment
decision.
We may offer and sell the securities directly to you, through agents we select, or through
underwriters or dealers we select. If we use agents, underwriters, or dealers to sell the
securities, we will name them and describe their compensation in a prospectus supplement. The net
proceeds we expect to receive from those sales will be described in the prospectus supplement.
These securities will not be savings accounts, deposits or other obligations of any bank or
non-bank subsidiary of ours and are not insured by the Federal Deposit Insurance Corporation, the
Board of Governors of the Federal Reserve System or any other governmental agency.
Investing in our securities involves risks, including the risks described in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2007, filed with the Securities and Exchange
Commission (the SEC) on February 29, 2008, the risk factors described under the caption Risk
Factors in any applicable prospectus supplement, and/or risk factors, if any, set forth in our
other filings with the SEC pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), as referenced on page 2 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacy or accuracy of the prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus is September 22, 2008.
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
|
About This Prospectus |
|
|
1 |
|
Risk Factors |
|
|
1 |
|
Where You Can Find More Information |
|
|
1 |
|
Forward-Looking Information |
|
|
2 |
|
Ratio of Earnings to Fixed Charges |
|
|
4 |
|
Use of Proceeds |
|
|
4 |
|
Description of Common Stock |
|
|
5 |
|
Description of Debt Securities |
|
|
9 |
|
Plan of Distribution |
|
|
18 |
|
Legal Matters |
|
|
21 |
|
Experts |
|
|
21 |
|
In this prospectus, we, us, our, Wilmington Trust, and the Company refer to Wilmington
Trust Corporation and its subsidiaries, unless specified otherwise.
-i-
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Wilmington Trust filed with the SEC using
a shelf registration process. Under this shelf process, we may sell any combination of the
securities described in this prospectus in one or more offerings from time to time. This
prospectus provides you with a general description of the securities we may offer. We may offer
common stock or debt securities from time to time.
Each time we offer securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may include a discussion
of any risk factors or other special considerations that apply to those securities. The prospectus
supplement also may add to, update, or change information contained in this prospectus and,
accordingly, to the extent inconsistent, the information in this prospectus will be superseded by
the information in that prospectus supplement. You should read this prospectus, the applicable
prospectus supplement, and the additional information incorporated by reference into this
prospectus described below under Where You Can Find More Information before making an investment
in our securities.
The prospectus supplement will describe: the terms of the securities offered, any initial public
offering price, the price paid to us for the securities, the net proceeds to us, the manner of
distribution, a description of the securities, if applicable, and any underwriting compensation and
the other specific material terms related to the offering of the securities. The prospectus
supplement also may contain information about material U.S. federal income tax considerations
relating to the securities where applicable. For more detail on the terms of the securities, you
should read the exhibits filed with or incorporated by reference into our registration statement of
which this prospectus forms a part.
This prospectus contains summaries of certain provisions contained in some of the documents
described herein, but reference is made to the actual documents for complete information. All of
the summaries are qualified in their entirety by the actual documents. Copies of the documents
referred to herein have been filed with the SEC, or will be filed or incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain
copies of those documents as described below under the caption Where You Can Find More
Information.
You should rely only on the information contained or incorporated by reference in this prospectus
and any prospectus supplement. We have not authorized anyone else to provide you with different
information. If anyone provides you with different information, you should not rely on it. These
securities are not being offered in any jurisdiction in which the offer or sale is not permitted.
You should assume that the information appearing in this prospectus and any prospectus supplement,
or any documents incorporated by reference herein or therein, is accurate only as of the date on
the front cover of the applicable document. Our business, financial condition, results of
operations, and prospects may have changed since that date.
RISK FACTORS
You should consider carefully the specific risks described in our Annual Report on Form 10-K for
the fiscal year ended December 31, 2007, the risk factors described under the caption Risk
Factors in any applicable prospectus supplement, and any risk factors set forth in our other
filings with the SEC pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act before
making an investment decision. See Where You Can Find More Information.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports and other information with the SEC. These reports
and other information can be read and copied upon payment of a duplication fee at the SECs Public
Reference Room located at Station Place, 100 F Street, N.E., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room in
Washington D.C. and other locations. The SEC maintains a website (http://www.sec.gov) that
contains reports and other information regarding companies that file with the SEC electronically,
including us. These reports and other information also can be read at the offices of the NYSE, 20
Broad Street, New York, New York 10005 or through our website (http://www.wilmingtontrust.com).
Information on our website is not incorporated into this prospectus or our other SEC filings and is
not a part of this prospectus or those filings.
-1-
The SEC allows us to incorporate by reference the information we file with the SEC. This permits
us to disclose important information to you by referencing those filed documents. Any statement
contained or incorporated by reference into this prospectus will be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement contained herein, or in
any document filed subsequently that also is incorporated by reference herein, modifies or
supersedes that earlier statement. Any statement so modified or superseded is not deemed to
constitute a part of this prospectus, except as so modified or superseded.
The following documents have been filed by Wilmington Trust (File No. 001-14659) with the SEC and
are incorporated by reference into this prospectus (excluding any portions of those documents that
have been furnished but not filed for purposes of the Exchange Act):
|
|
|
Annual Report on Form 10-K for the fiscal year ended December 31, 2007 (which we
filed with the SEC on February 29, 2008); |
|
|
|
|
The sections of our Annual Report to Shareholders for 2007, which we filed as
Exhibit 13 to our Annual Report on Form 10-K for the fiscal year ended December 31,
2007 (which we filed with the SEC on February 29, 2008), entitled Managements
Discussion and Analysis of Financial Condition and Results of Operations, Audited
Consolidated Financial Statements, Notes to Consolidated Financial Statements,
Reports of Independent Registered Public Accounting Firm, and Stockholder
Information, to the extent required to be disclosed on Form 10-K and incorporated by
reference into our Annual Report on Form 10-K for the fiscal year ended December 31,
2007; |
|
|
|
|
The information required by Part III of Form 10-K contained in our Definitive Proxy
Statement on Schedule 14A (which we filed with the SEC on February 29, 2008) on pages
1, 3-6, and 9-30 thereof; |
|
|
|
|
Quarterly Reports on Form 10-Q for the quarter ended March 31, 2008 (which we filed
with the SEC on May 12, 2008) and for the quarter ended June 30, 2008 (which we filed
with the SEC on August 11, 2008); |
|
|
|
|
Forms 8-K we filed with the SEC on January 31, 2008, February 19, 2008, March 25,
2008, April 1, 2008, April 18, 2008, June 24, 2008, June 25, 2008, July 18, 2008, and
September 11, 2008; and |
|
|
|
|
The description of our preferred stock purchase rights contained in our Registration
Statement on Form 8-A/A (which we filed with the SEC on December 22, 2004), File No.
001-14695. |
All documents we file pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the
date of this prospectus and before all of the securities offered by this prospectus are sold are
incorporated by reference into this prospectus from the date of the filing of the documents, except
for information furnished under Item 2.02 or Item 7.01 of Form 8-K or other information
furnished to the SEC, which is not deemed filed and not incorporated by reference herein.
Information that we file with the SEC will automatically update and may replace information in this
prospectus and information filed with the SEC previously.
We will provide without charge to each person to whom this prospectus is delivered a copy of any or
all of the foregoing documents, and any other documents that are incorporated herein by reference
(other than exhibits, unless those exhibits are specifically incorporated by reference into those
documents) upon written or oral request. Requests for those documents should be directed to our
principal executive office, located at Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890, (302) 651-1000, Attention: Gerard A. Chamberlain.
FORWARD-LOOKING INFORMATION
This prospectus, any prospectus supplement, and any other documents included or incorporated by
reference into this prospectus may contain statements that may be deemed to be forward looking
statements within the meaning of the Private Securities Litigation Reform Act of 1995. In
addition, we may make other written and oral communications that contain those statements from time
to time. Forward-looking statements include statements regarding industry trends and our future
expectations and other matters that do not relate strictly to historical facts
-2-
and are based on certain assumptions by our management. These statements are often identified by
the use of words such as may, will, expect, believe, anticipate, intend, could,
should, estimate, continue, and similar expressions or variations. These statements are based
on our managements knowledge and belief as of the date of this prospectus and include information
concerning our possible or assumed future financial condition and our results of operations,
business, and earnings outlook. These forward-looking statements are subject to risks and
uncertainties. A number of factors, many beyond our ability to control or predict, could cause
future results to differ, even materially, from those contemplated by these forward-looking
statements. These factors include (1) changes in national or regional economic conditions, (2)
changes in interest rates, (3) fluctuations in the equity and fixed-income markets, (4) significant
changes in banking laws or regulations, (5) increased competition in our markets, (6)
higher-than-expected credit losses, (7) the effect of acquisitions and integration of acquired
businesses, (8) unanticipated changes in regulatory, judicial, or legislative tax treatment of
business transactions, (9) changes in accounting policies, procedures, or guidelines that may be
required by the Financial Accounting Standards Board or regulatory agencies, (10) economic
uncertainty created by increasing unrest in other parts of the world, and (11) new litigation or
developments in existing litigation. Weakness or a decline in capital or consumer spending could
affect our performance adversely in a number of ways, including decreased demand for our products
and services and increased credit losses. Likewise, changes in deposit levels or changes in
deposit interest rates, among other things, could slow our growth or put pressure on current
deposit levels. Important factors that could cause actual results to differ materially from the
forward-looking statements include, among others, the risks described in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2007, the risks described under the caption Risk
Factors in any applicable prospectus supplement, and any risk set forth in our other filings with
the SEC that are incorporated by reference into this prospectus or any applicable prospectus
supplement. You should consider those factors carefully before investing in our securities. Those
forward-looking statements speak only as of the date they are made and, except for our ongoing
obligations under the U.S. federal securities laws, we undertake no obligation to update any
forward-looking statements publicly, whether as a result of new information, future events, or
otherwise.
-3-
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods indicated is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
Year Ended December 31, |
|
|
June 30, 2008 |
|
2007 |
|
2006 |
|
2005 |
|
2004 |
|
2003 |
Ratio of earnings to fixed charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Excluding interest on deposits |
|
|
1.8 |
|
|
|
3.8 |
|
|
|
3.6 |
|
|
|
5.3 |
|
|
|
7.0 |
|
|
|
7.5 |
|
Including interest on deposits |
|
|
1.2 |
|
|
|
1.8 |
|
|
|
1.7 |
|
|
|
2.4 |
|
|
|
3.2 |
|
|
|
3.2 |
|
These ratios include Wilmington Trust and its subsidiaries. For purposes of calculating the ratio
of earnings to fixed charges, earnings consist of pretax income less equity in earnings of
unconsolidated affiliates plus fixed charges and distributed earnings of unconsolidated affiliates.
Fixed charges include gross interest expense, amortization of deferred financing expenses, and an
amount equivalent to interest included in rental charges.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we intend to use the net
proceeds of any securities sold for general corporate purposes.
-4-
DESCRIPTION OF COMMON STOCK
The following description of common stock is a summary that is qualified in its entirety by the
more detailed information included elsewhere or incorporated by reference into this prospectus or
the accompanying prospectus supplement. Because this is a summary, it may not contain all of the
information that is important to you. For more detailed information, please see our Restated
Certificate of Incorporation and Bylaws, which have been filed in their entirety with the SEC.
Please refer to the section entitled Where You Can Find More Information, starting on page 1
above.
General
We are authorized to issue 150,000,000 shares of our common stock, par value $1.00 per share, and
1,000,000 shares of our preferred stock, par value $1.00 per share. As of August 31, 2008,
67,365,749 shares of our common stock were issued and outstanding, and 7,039,523 shares of our
common stock were issuable upon the exercise of outstanding stock options.
The rights of holders of our common stock are governed by Delawares General Corporation Law and
banking law, our Certificate of Incorporation and Bylaws, and the applicable regulations of the
Federal Reserve Board. Each share of our common stock has the same relative rights as, and is
identical in all respects to, each other share of our common stock. Our shares of common stock are
entitled to one vote per share, and are traded on the New York Stock Exchange under the symbol
WL.
Voting
Until shares of our preferred stock are issued, if ever, the holders of our common stock will
possess all rights, including exclusive voting rights, pertaining to our capital stock, except as
otherwise required by law. Shares of our common stock do not have cumulative voting rights.
Stockholders may not approve any action by written consent without a meeting of the stockholders.
Dividend Rights
The holders of outstanding shares of our common stock are entitled to receive dividends when, as,
and if declared by our Board of Directors, in their discretion, out of funds legally available
therefor.
Liquidation Rights
In the event of any liquidation, dissolution, or winding up of us, the holders of shares of our
common stock will be entitled to receive all of our remaining assets, after payment of all of our
debts and liabilities (including $250 million aggregate principal amount of our outstanding 4.875%
Subordinated Notes due 2013 and $200 million aggregate principal amount of our outstanding 8.50%
Subordinated Notes due 2018) and subject to the rights, if any, of holders of shares of our
preferred stock, if any.
Preemptive Rights; Redemption
Our stockholders are not entitled to preemptive rights with respect to any shares of capital stock
we issue. Our common stock is not subject to call or redemption.
Board of Directors; Classification of the Board
Our Certificate of Incorporation provides that our Board (other than directors elected by holders
of any series of our preferred stock) consists of not less than one nor more than 25 directors,
with the number of directors fixed from time to time by resolution passed by our Board, and that
our directors (other than directors elected by the holders of any series of our preferred stock)
are divided into three classes, as nearly equal in number as possible, with each class of directors
serving for successive three-year terms so that each year the term of only one class of directors
expires.
-5-
Limitation of Liability of Directors
Our directors are not personally liable to us or our stockholders for monetary damages for breach
of fiduciary duty, except to the extent that such exemption from liability is not permitted by
Delaware law. Delaware prohibits an exemption or limitation of a directors liability in cases
involving a directors breach of the duty of loyalty, acts or omissions not in good faith,
intentional misconduct, knowing violations of law, improper personal benefits, or improper
dividends or distributions. We will indemnify and hold harmless, to the fullest extent permitted
by applicable law, 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 by reason of the fact that he or she is or
was our director or is or was serving at our request as a director of another entity.
Certain Provisions Affecting Changes in Control
Our Certificate of Incorporation provides that, in addition to any other vote required by law, a
business combination requires the affirmative vote of the holders of at least 75% of the combined
voting power of the then outstanding shares of our voting stock, voting together as a single class,
unless there are one or more continuing directors then in office and such business combination has
been approved by our Board (including the affirmative vote of at least a majority of the continuing
directors then in office), in which case that business combination only requires such vote as is
required by law or by other provisions of our Certificate. Certain transactions encompassed by the
term business combination, such as certain issuances of stock or certain sales of assets, would
not require a vote of stockholders under Delawares General Corporation Law, while certain other
transactions, such as a reclassification of capital stock, would require an affirmative vote of a
majority of the outstanding shares of capital stock entitled to vote thereon. This provision could
have the effect of giving a minority of our stockholders the ability to preclude the consummation
of certain business combinations when a majority of our stockholders believe that such a business
combination is desirable or beneficial.
For purposes of this provision, a business combination includes:
|
|
|
any merger or consolidation of us or any of our subsidiaries with or into (a) any
related person or (b) any other corporation (whether or not itself a related person) that,
after such merger or consolidation, would be an affiliate or associate of a related person; |
|
|
|
|
any sale, lease, exchange, mortgage, pledge, transfer, or other disposition (in one
transaction or a series of related transactions) to or with any related person of any
assets of us or any subsidiary of ours, having an aggregate fair market value of $1,000,000
or more; |
|
|
|
|
the issuance or transfer by us or any of our subsidiaries (in one or more related
transactions, and other than by way of pro rata distribution to all stockholders or a
reclassification, dividend, or subdivision of such securities, and other than in connection
with the exercise or conversion of securities exercisable for or convertible into our
securities, or securities of one of our subsidiaries, that have been distributed pro rata
to stockholders) of any of our securities or the securities of any of our subsidiaries to
any related person in exchange for cash, securities, or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more; |
|
|
|
|
the adoption of any plan or proposal proposed by or on behalf of a related person for
our liquidation or dissolution; or |
|
|
|
|
any reclassification of our securities, recapitalization of us, any merger or
consolidation of us with or into any of our subsidiaries, or any similar transaction that
has the effect, directly or indirectly, of increasing by more than one percent the
proportion of outstanding shares of any class of equity or convertible securities of us or
any of our subsidiaries that are directly or indirectly owned by any related person. |
-6-
For purposes of this provision, a related person is, other than us, any of our subsidiaries, any
employee benefit plan or stock plan of us or any of our subsidiaries, or any person or entity
organized, appointed, established, or holding voting stock for or pursuant to the terms of such
plan:
|
|
|
any individual, corporation, partnership, or other entity, or any group of two or more
of the foregoing that act together or have agreed to act together and which, together with
its or their affiliates and associates, beneficially owns, directly or indirectly, in the
aggregate, 10% or more of the combined voting power of the then-outstanding shares of our
voting stock, as well as any affiliate or associate of such individual, corporation,
partnership, or other entity; |
|
|
|
|
an affiliate of us which at any time within two years prior thereto beneficially owned,
directly or indirectly, 10% or more of the combined voting power of the outstanding
shares of our voting stock; or |
|
|
|
|
an assignee of or successor to any shares of our capital stock that were at any time
within two years prior thereto beneficially owned by any related person. |
Stockholder Rights Plan
On December 16, 2004, our Board approved an amended and restated rights plan. The rights plan is
for a ten-year term and entitles registered holders of our common stock, on the conditions
summarized below, to purchase from us one one-thousandth of a share of our preferred stock at a
price of $128.00 per one one-thousandth of a share.
Under the rights plan, until the earlier of (1) 10 days after a public announcement that a person
or group of affiliated or associated persons has acquired 15% or greater of our common stock or (2)
10 business days following the commencement of, or announcement of an intention to make, a tender
offer that would result in such person or group owning 15% or greater of our common stock, in
either case an acquiring person, the rights will be evidenced by our common stock certificate,
together with a copy of the summary of rights, and will automatically trade with the common stock
and not be exercisable. Upon such date (the Distribution Date), separate certificates evidencing
the rights will be distributed to the holders of record of our common stock as of the Distribution
Date, and each right will entitle its holder to purchase participating preferred stock for an
exercise price of $128.00 per one one-thousandth of a share. The purchase price payable, and the
number of shares of preferred stock or other securities or property issuable, upon exercise of the
rights is subject to antidilution adjustments in the case of stock dividends, stock splits, the
grant of rights or warrants to subscribe for or purchase preferred stock at a price less than the
then-current market price of the preferred stock, or upon the distribution to preferred
stockholders of evidences of indebtedness or assets or of subscription rights or warrants.
Shares of preferred stock purchasable upon exercise of the rights will not be redeemable. Each
share of preferred stock will be entitled, when, as, and if declared, to a minimum preferential
quarterly dividend payment of the greater of (1) $10 per share or (2) an amount equal to 1,000
times the dividend declared per share of common stock. In the event of our liquidation,
dissolution, or winding up, the holders of the preferred stock purchasable upon exercise of the
rights will be entitled to a minimum preferential payment of the greater of (1) $1,000 per share
(plus any accrued but unpaid dividends) and (2) an amount equal to 1,000 times the payment made per
share of common stock. Each share of preferred stock will have 1,000 votes, voting together with
the common stock. In the event of any merger, consolidation, or other transaction in which
outstanding shares of common stock are converted or exchanged, each share of preferred stock will
be entitled to receive 1,000 times the amount received per share of common stock. These rights are
protected by customary antidilution provisions.
If any person or group of affiliated or associated persons becomes an acquiring person, each holder
of a right, other than rights beneficially owned by the acquiring person (which will thereupon
become void), will have the right thereafter to receive, upon exercise of a right at the
then-current exercise price of the right, that number of shares of common stock having a market
value equal to two times the exercise price of the right.
If, after a person or group of affiliated or associated persons becomes an acquiring person, we are
acquired in a merger or other business combination transaction or 50% or more of our consolidated
assets or earning power are sold, proper provisions will be made so that each holder of a right
(other than rights beneficially owned by an acquiring person, which will have become void) will
thereafter have the right to receive, upon the exercise of a right, that number of shares of common
stock of the person with whom we have engaged in the foregoing transaction (or its parent) that at
the time of that transaction has a market value of two times the exercise price of the right.
-7-
At any time after any person or group of affiliated or associated persons becomes an acquiring
person and before the acquisition by that acquiring person of 50% or more of the outstanding shares
of our common stock, our Board may exchange the rights (other than rights owned by that acquiring
person, which will have become void), in whole or in part, for shares of common stock or preferred
stock (or a series of our preferred stock having equivalent rights, preferences, and privileges),
at an exchange ratio of one share of common stock, or a fractional share of preferred stock (or
other preferred stock), equivalent in value thereto, per right.
At any time prior to the time that any person or group of affiliated or associated persons becomes
an acquiring person, our Board may redeem the rights in whole, but not in part, at a price of $.01
per right, payable, at our option, in cash, shares of common stock, or such other form of
consideration as our Board may determine. The redemption of the rights may be made effective at
the time, on the basis, and with the conditions our Board may establish in its sole discretion.
Immediately upon any redemption of the rights, the right to exercise the rights will terminate and
the only right of the holders of the rights will be to receive the redemption price.
For so long as the rights are then redeemable, we may, except with respect to the redemption price,
amend the rights plan in any manner.
Until a right is exercised or exchanged, the holder thereof, as such, will have no rights as a
stockholder of us, including the right to vote or to receive dividends.
-8-
DESCRIPTION OF DEBT SECURITIES
The debt securities we may issue will constitute either senior securities (Senior Securities) or
subordinated securities (Subordinated Securities). The Senior Securities will be issued under an
indenture (the Senior Indenture) between us and the trustee under such indenture. The
Subordinated Securities will be issued under an Indenture (the Subordinated Indenture) between us
and the trustee under such indenture. The trustees under the Senior Indenture and the Subordinated
Indenture are referred to herein, as applicable, as the Trustee. The Senior Indenture and the
Subordinated Indenture are individually referred to herein as an Indenture and collectively
referred to herein as the Indentures. The statements under this caption are brief summaries of
certain provisions contained in the Indentures, do not purport to be complete, and are qualified in
their entirety by reference to the applicable Indenture, a copy of which has been filed with the
SEC. Whenever defined terms are used but not defined herein, those terms have the meanings
ascribed to them in the applicable Indenture, which meanings are incorporated by reference herein.
The following description of the terms of the securities sets forth certain general terms and
provisions of the securities to which any prospectus supplement may relate. The particular terms
of any securities and the extent, if any, to which those general provisions may apply to those
securities will be described in the prospectus supplement relating to those securities.
Neither of the Indentures limits the aggregate principal amount of securities that may be issued
thereunder, and each Indenture provides that securities of any series may be issued thereunder up
to the aggregate principal amount that we may authorize from time to time. Neither the Indentures
nor the securities issued thereunder will limit or otherwise restrict the amount of other
indebtedness we may incur or the other securities we or any of our subsidiaries may issue.
Because we are a holding company, our rights and the rights of our creditors, including the holders
of the securities offered hereby, to participate in the assets of any of our affiliates upon the
latters liquidation or reorganization, will be subject to the prior claims of such affiliates
creditors, except to the extent that we ourselves may be a creditor with recognized claims against
such affiliate.
Reference is made to the applicable prospectus supplement for any series of securities for a
description of the following terms:
|
|
|
the title of those securities; |
|
|
|
|
the limit, if any, on the aggregate principal amount or aggregate initial public
offering price of those securities; |
|
|
|
|
the priority of payment of those securities; |
|
|
|
|
the price or prices at which the securities will be issued (which may be expressed as a
percentage of the aggregate principal amount thereof); |
|
|
|
|
the date or dates on which the principal of the securities will be payable; |
|
|
|
|
the rate or rates per annum at which those securities will bear interest (which may be
fixed or variable), if any, or the method of determining the same; |
|
|
|
|
the date or dates from which that interest, if any, on the securities will accrue, the
date or dates on which that interest, if any, will be payable (Interest Payment Dates),
the date or dates on which payment of that interest, if any, will commence, and the regular
record dates for those Interest Payment Dates (Regular Record Dates); |
|
|
|
|
the extent to which any of the securities will be issuable in temporary or permanent
global form, or the manner in which any interest payable on a temporary or permanent global
debt security will be paid; |
-9-
|
|
|
each office or agency at which the securities may be presented for registration of
transfer or exchange; |
|
|
|
|
the place or places at which the principal of, premium, if any, and interest, if any, on
the securities will be payable; |
|
|
|
|
the date or dates, if any, after which those securities may be redeemed or purchased in
whole or in part, at our option, mandatorily redeemed pursuant to any sinking, purchase, or
analogous fund, or purchased or redeemed at the option of the holder, and the redemption or
repayment price or prices thereof; |
|
|
|
|
the denomination or denominations in which those securities are authorized to be issued; |
|
|
|
|
whether any of the securities will be issued as Original Issue Discount Securities (as
defined below); |
|
|
|
|
information with respect to book-entry procedures, if any, to the extent they differ
from the book-entry procedures described herein; |
|
|
|
|
any additional covenants or events of default not currently set forth in the applicable
Indenture; and |
|
|
|
|
any other terms of those securities not inconsistent with the provisions of the
applicable Indenture. |
Securities may be issued as original issue discount securities (bearing no interest or interest at
a rate which at the time of issuance is below market rates) (Original Issue Discount Securities),
to be sold at a substantial discount below the stated principal amount thereof due at the stated
maturity of those securities. There may not be any periodic payments of interest on Original Issue
Discount Securities. If the maturity of any Original Issue Discount Security is accelerated, the
amount payable to the holder of that Original Issue Discount Security upon that acceleration will
be determined in accordance with the prospectus supplement, the terms of that security, and the
Indenture, but will be an amount less than the amount payable at the maturity of the principal of
that Original Issue Discount Security. Federal income tax considerations with respect to Original
Issue Discount Securities will be set forth in the prospectus supplement relating thereto.
Registration and Transfer
Securities will be issued only as registered securities, without coupons. Securities (other than a
global security (as defined below)) may be presented for transfer (with the form of transfer
endorsed thereon duly executed) or exchanged for other securities of the same series at the office
of the security registrar specified according to the terms of the applicable Indenture. That
transfer or exchange will be made without service charge, but we may require payment of any taxes
or other governmental charges.
Payment and Paying Agents
Unless otherwise indicated in an applicable prospectus supplement, payment of principal of,
premium, if any, and any interest on securities will be made at our office(s) and/or at the
office(s) of the paying agent or paying agents (the Paying Agents) we may designate from time to
time. However, at our option, payment of any interest may be made (1) by check mailed to the
address of the person entitled thereto as that address appears in the applicable security register
or (2) by wire transfer to an account maintained by the person entitled thereto as specified in the
applicable security register. Unless indicated otherwise in an applicable prospectus supplement,
payment of any installment of interest on securities will be made to the person in whose name that
debt security is registered at the close of business on the Regular Record Date for that payment.
Consolidation, Merger, or Sale of Assets
Each Indenture provides that we may, without the consent of the holders of any of the securities
outstanding under that Indenture, consolidate with, merge into, or transfer our assets
substantially as an entirety to any person or entity, provided that (1) any such successor
expressly assumes our obligations on the applicable securities and under that Indenture, (2) after
giving effect thereto (and after the lapse of time, notice, or both), no Event of Default (as
defined in the Senior Indenture) in the case of Senior Securities, or Default (as defined in the
Subordinated Indenture) in the
-10-
case of Subordinated Securities, shall have happened and be continuing, and (3) certain other
conditions under that Indenture are met. Accordingly, any such consolidation, merger, or transfer
of assets substantially as an entirety that meets the conditions described above would not create
any Event of Default or Default that would entitle holders of the securities, or the Trustee on
their behalf, to take any of the actions described below under the caption Senior Securities -
Events of Default, Waivers, etc. or Subordinated Securities Events of Default, Waivers, etc.
Leveraged and Other Transactions
The Indentures and the securities issued thereunder do not contain provisions that would afford
holders of the securities protection in the event of a highly leveraged or other transaction
involving us that could affect the holders of the securities adversely.
Modification of the Indenture; Waiver of Covenants
Each Indenture provides that, with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding securities of each affected series, modifications and
alterations of that Indenture may be made that affect the rights of the holders of those
securities; provided, however, that no such modification or alteration may be made without the
consent of the holder of each security so affected that would (1) change the maturity of the
principal of, or of any installment of interest or premium on, any security issued pursuant to that
Indenture, reduce the principal amount thereof or any premium thereon, change the method of
calculating interest or the currency of payment of principal or interest (or premium, if any) on,
reduce the minimum rate of interest on, impair the right to institute suit for the enforcement of
any such payment on or with respect to, any such security, or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon an acceleration of the maturity
thereof; or (2) reduce the above-stated percentage in principal amount of outstanding securities
required to modify or alter that Indenture.
SENIOR SECURITIES
The Senior Securities will be our direct, unsecured obligations and will rank pari passu with all
of our outstanding unsecured senior indebtedness.
Events of Default, Waivers, Etc.
An Event of Default with respect to Senior Securities of any series is defined in the Senior
Indenture as:
|
|
|
default in the payment when due of principal of or premium, if any, on any outstanding
Senior Securities of that series; |
|
|
|
|
default in the payment when due of interest on any outstanding Senior Securities of that
series and continuance of that default for 30 days; |
|
|
|
|
default in the performance of any other covenant of ours in the Senior Indenture with
respect to outstanding Senior Securities of that series and continuance of that default for
90 days after written notice; |
|
|
|
|
certain events of bankruptcy, insolvency, or reorganization of us; and |
|
|
|
|
any other event that may be specified in a prospectus supplement with respect to any
series of Senior Securities. |
If an Event of Default with respect to any series of outstanding Senior Securities occurs and is
continuing, either the Trustee or the holders of not less than 25% in aggregate principal amount of
the outstanding Senior Securities of that series may declare the principal amount (or if those
Senior Securities are Original Issue Discount Securities, that portion of the principal amount that
may be specified in the terms of that series) of all Senior Securities of that series to be due and
payable immediately. If an Event of Default occurs and is continuing, the Trustee may, in its
discretion, or at the written request of holders of not less than a majority in aggregate principal
amount of the Senior
-11-
Securities of any series, and upon reasonable indemnity against the costs, expenses, and
liabilities to be incurred in compliance with that request and subject to certain other conditions
set forth in the Senior Indenture will, proceed to protect the rights of the holders of all Senior
Securities of that series. The holders of a majority in aggregate principal amount of the Senior
Securities of any series may waive an Event of Default resulting in acceleration of those Senior
Securities, but only if all Events of Default with respect to Senior Securities of that series have
been remedied and all payments due (other than those due as a result of acceleration) have been
made.
The Senior Indenture also provides that, notwithstanding any other provision of the Senior
Indenture, the holder of any Senior Security of any series will have the right to institute suit
for the enforcement of any payment of principal of, premium, if any, and interest on those Senior
Securities when due and that such right will not be impaired without the consent of that holder.
We are required to file with the Trustee annually a written statement of officers as to the
existence or non-existence of defaults under the Senior Indenture or the Senior Securities.
SUBORDINATED SECURITIES
The Subordinated Securities will be our direct, unsecured obligations and, unless otherwise
specified in the prospectus supplement related to a particular series of Subordinated Securities
offered thereby, will be subject to the subordination provisions described below.
Subordination
If any distribution of our assets upon any dissolution, winding up, liquidation, or reorganization
(a Liquidation Distribution) occurs, the holders of any Senior Indebtedness will first be
entitled to receive payment in full of the amounts due or to become due before the holders of the
Subordinated Securities will be entitled to receive any payment in respect of the principal of,
premium, if any, or interest on the Subordinated Securities. If, upon any such payment or
distribution of assets there remain, after giving effect to those subordination provisions in favor
of the holders of Senior Indebtedness, any amounts of cash, property, or securities available for
payment or distribution in respect of Subordinated Securities (Excess Proceeds) and if, at that
time, any creditors in respect of General Obligations have not received payment in full of all
amounts due or to become due on or in respect of those General Obligations, then those Excess
Proceeds will first be applied to pay or provide for the payment in full of those General
Obligations before any payment or distribution is made in respect of the Subordinated Securities.
In addition, no payment may be made of the principal of, premium, if any, or interest on the
Subordinated Securities, or in respect of any redemption, retirement, purchase, or other
acquisition of any of the Subordinated Securities, at any time when (1) there is a default in the
payment of the principal of, premium, if any, interest on, or otherwise in respect of any Senior
Indebtedness or (2) any Event of Default with respect to any Senior Indebtedness has occurred and
is continuing, or would occur as a result of that payment on the Subordinated Securities or any
redemption, retirement, purchase, or other acquisition of any of the Subordinated Securities
permitting the holders of that Senior Indebtedness to accelerate the maturity thereof. Except as
described above, our obligation to make payment of the principal of, premium, if any, or interest
on the Subordinated Securities will not be affected.
Subject to payment in full of all Senior Indebtedness, the holders of Subordinated Securities will
be subrogated to the rights of the holders of Senior Indebtedness to receive payments or
distributions of our cash, property, or securities applicable to Senior Indebtedness. Subject to
payment in full of all General Obligations, the holders of Subordinated Securities will be
subrogated to the rights of the creditors in respect of General Obligations to receive payments or
distributions of cash, property, or securities of us applicable to those creditors in respect of
General Obligations.
Senior Indebtedness is defined in the Subordinated Indenture as the principal of, premium, if
any, and interest on (1) all of our indebtedness for money borrowed, other than the Subordinated
Securities, whether outstanding on the date of execution of the Subordinated Indenture or
thereafter created, assumed, or incurred, except such indebtedness as is by its terms expressly
stated to be not superior in right of payment to the Subordinated Securities; or to rank pari passu
with the Subordinated Securities and (2) any deferrals, renewals, or extensions of any such Senior
Indebtedness. The term indebtedness for money borrowed used in the preceding sentence includes,
-12-
without limitation, any obligation of, or any obligation guaranteed by, the Company for the
repayment of borrowed money, whether or not evidenced by bonds, debentures, notes, or other written
instruments, and any deferred obligation for the payment of the purchase price of property or
assets. There is no limitation on the issuance of Senior Indebtedness of the Company.
Unless otherwise specified in the prospectus supplement relating to a particular series of
Subordinated Securities offered thereby, General Obligations means all of our obligations to make
payment on account of claims in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts, and similar arrangements, other than (1) obligations
on account of Senior Indebtedness, (2) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Subordinated Securities, and (3) obligations which by
their terms are expressly stated not to be superior in right of payment to the Subordinated
Securities or to rank pari passu with the Subordinated Securities; provided, however, that,
notwithstanding the foregoing, if any rule, guideline, or interpretation promulgated or issued by
the Board of Governors of the Federal Reserve System (the Federal Reserve Board) (or other
competent regulatory agency or authority) as in effect from time to time establishes or specifies
criteria for the inclusion in regulatory capital of subordinated debt of a bank holding company
requiring that such subordinated debt be subordinated to obligations to creditors in addition to
those set forth above, then the term General Obligations also will include such additional
obligations to creditors in effect from time to time pursuant to those rules, guidelines, or
interpretations. For purposes of the definition of General Obligations, the term claim has the
meaning assigned thereto in Section 101(5) of the Bankruptcy Code of 1978, as amended to the date
of the Subordinated Indenture.
Limited Right of Acceleration
Unless otherwise specified in the prospectus supplement relating to any series of Subordinated
Securities, payment of principal of the Subordinated Securities may be accelerated only in the case
of our bankruptcy, insolvency, or reorganization. There is no right of acceleration in the case of
a default in the payment of principal of, premium, if any, or interest on the Subordinated
Securities or the performance of any other covenant in the Subordinated Indenture.
Events of Default, Defaults, Waivers, Etc.
An Event of Default with respect to our Subordinated Securities of any series is defined in the
Subordinated Indenture as certain events involving our bankruptcy, insolvency, or reorganization
and any other Event of Default provided with respect to Subordinated Securities of that series.
A Default with respect to Subordinated Securities of any series is defined in the Subordinated
Indenture as:
|
|
|
an Event of Default with respect to that series; |
|
|
|
|
default in the payment when due of the principal of or premium, if any, on any
Subordinated Security of that series; |
|
|
|
|
default in the payment when due of interest upon any Subordinated Security of that
series and the continuance of that default for 30 days; |
|
|
|
|
default in the performance of any other covenant or agreement of the Company in the
Subordinated Indenture with respect to Subordinated Securities of that series and
continuance of that default for 90 days after written notice; or |
|
|
|
|
any other Default provided with respect to Subordinated Securities of that series. |
If an Event of Default with respect to any series of outstanding Subordinated Securities occurs and
is continuing, either the Trustee or the holders of not less than 25% in aggregate principal amount
of the outstanding Subordinated Securities of that series may declare the principal amount (or, if
those Subordinated Securities are Original Issue Discount Securities, that portion of the principal
amount that may be specified in the terms of that series) of all Subordinated Securities of that
series to be due and payable immediately.
-13-
If a Default occurs and is continuing, the Trustee may, in its discretion, or at the written
request of holders of not less than a majority in aggregate principal amount of the Subordinated
Securities of any series outstanding under the Subordinated Indenture, and upon reasonable
indemnity against the costs, expenses, and liabilities to be incurred in compliance with that
request and subject to certain other conditions set forth in the Subordinated Indenture will,
proceed to protect and enforce the rights of the holders of all of the Subordinated Securities of
that series. The holders of a majority in aggregate principal amount of the Subordinated
Securities of any series outstanding under the Subordinated Indenture may waive an Event of Default
resulting in acceleration of those Subordinated Securities, but only if all Defaults have been
remedied and all payments due have been made (other than those due as a result of acceleration).
The Subordinated Indenture also provides that, notwithstanding any other provision of the
Subordinated Indenture, the holder of any Subordinated Security of any series has the right to
institute suit to enforce any payment of principal of, premium, if any, or interest on the
Subordinated Security of the respective Stated Maturities (as defined in the Subordinated
Indenture) expressed in that Subordinated Security, and that such right will not be impaired
without the consent of that holder.
We are required to file with the Trustee annually a written statement of officers as to the
existence or non-existence of defaults under the Subordinated Indenture or the Subordinated
Securities.
BOOK-ENTRY ISSUANCE
We may issue series of any securities as global securities and deposit them with a depositary with
respect to that series. Unless otherwise indicated in the prospectus supplement, the following is
a summary of the depositary arrangements applicable to securities issued in permanent global form
and for which The Depository Trust Company (DTC) will act as depositary (the global
securities).
Each global security will be deposited with, or on behalf of, DTC, as depositary, or its nominee
and registered in the name of a nominee of DTC. Except under the limited circumstances described
below, global securities will not be exchangeable for certificated securities.
Only institutions that have accounts with DTC or its nominee (DTC participants) or persons that
may hold interests through DTC participants may own beneficial interests in a global security. DTC
will maintain records evidencing ownership of beneficial interests by DTC participants in the
global securities and transfers of those ownership interests. DTC participants will maintain
records evidencing ownership of beneficial interests in the global securities by persons that hold
through those DTC participants and transfers of those ownership interests within those DTC
participants. DTC has no knowledge of the actual beneficial owners of the securities. You will
not receive written confirmation from DTC of your purchase, but we do expect that you will receive
written confirmations providing details of the transaction, as well as periodic statements of your
holdings from the DTC participant through which you entered the transaction. The laws of some
jurisdictions require that certain purchasers of securities take physical delivery of those
securities in certificated form. Those laws may impair your ability to transfer beneficial
interests in a global security.
DTC has advised us that upon the issuance of a global security and the deposit of that global
security with DTC, DTC will immediately credit, on its book-entry registration and transfer system,
the respective principal amounts represented by that global security to the accounts of DTC
participants.
We will make payments on securities represented by a global security to DTC or its nominee, as the
case may be, as the registered owner and holder of the global security representing those
securities. DTC has advised us that upon receipt of any payment on a global security, DTC will
immediately credit accounts of DTC participants with payments in amounts proportionate to their
respective beneficial interests in that security, as shown in the records of DTC. Standing
instructions and customary practices will govern payments by DTC participants to owners of
beneficial interests in a global security held through those DTC participants, as is now the case
with securities held for the accounts of customers in bearer form or registered in street name.
Those payments will be the sole responsibility of those DTC participants, subject to any statutory
or regulatory requirements in effect from time to time.
-14-
None of Wilmington Trust, the Trustee, or any of our respective agents will have any responsibility
or liability for any aspect of the records of DTC, any nominee, or any DTC participant relating to,
or payments made on account of, beneficial interests in a global security or for maintaining,
supervising, or reviewing any of the records of DTC, any nominee, or any DTC participant relating
to those beneficial interests.
A global security is exchangeable for certificated securities registered in the name of a person
other than DTC or its nominee only if:
|
|
|
DTC notifies us that it is unwilling or unable to continue as depositary for that global
security or DTC ceases to be registered under the Exchange Act and any other applicable
regulation, and we do not appoint a successor depositary within 90 days of such notice or
the Company becoming aware of such ineligibility; or |
|
|
|
|
we determine in our discretion that the global security will be exchangeable for
certificated securities in registered form. |
Any global security that is exchangeable as described in the preceding sentence will be
exchangeable in whole for certificated securities in registered form, of like tenor, and of an
equal aggregate principal amount as the global security, in denominations of $1,000 and integral
multiples of $1,000 (or in denominations and integral multiples as otherwise specified in the
applicable prospectus supplement). The registrar will register the certificated securities in the
name or names instructed by DTC. We expect that those instructions may be based upon directions
received by DTC from DTC participants with respect to ownership of beneficial interests in the
global security. In the case of global securities, we will make payment of any principal and
interest on the certificated securities and will register transfers and exchanges of those
certificated securities at our office and/or at the office(s) of the Paying Agents we may designate
from time to time. However, we may elect to pay interest by check mailed to the address of the
person entitled to that interest payment as of the record date, as shown on the register for the
securities.
Except as provided above, as an owner of a beneficial interest in a global security, you will not
be entitled to receive physical delivery of securities in certificated form and will not be
considered a holder of securities for any purpose under either of the Indentures. No global
security will be exchangeable except for another global security of like denomination and tenor to
be registered in the name of DTC or its nominee. Accordingly, you must rely on the procedures of
DTC and the DTC participant through which you own your interest to exercise any rights of a holder
under the global security or the applicable Indenture.
We understand that, under existing industry practices, in the event that we request any action of
holders, or an owner of a beneficial interest in a global security desires to take any action that
a holder is entitled to take under the securities or the Indentures, DTC would authorize the DTC
participants holding the relevant beneficial interests to take that action, and those DTC
participants would authorize beneficial owners owning through those DTC participants to take that
action or would otherwise act upon the instructions of beneficial owners owning through them.
DTC has advised us that DTC is a limited purpose trust company organized under the New York Banking
Law, a banking organization within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a clearing corporation within the meaning of the New York Uniform
Commercial Code, and a clearing agency registered under the Securities Exchange Act of 1934. DTC
holds securities that DTC participants deposit with DTC. DTC also facilitates the settlement of
securities transactions among DTC participants in deposited securities, such as transfers and
pledges, through electronic computerized book-entry changes in accounts of the DTC participants,
thereby eliminating the need for physical movement of securities certificates. DTC participants
include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository
Trust & Clearing Corporation (DTCC). DTCC, in turn, is owned by a number of direct participants
of DTC and members of the National Securities Clearing Corporation, Government Securities Clearing
Corporation, MBS Clearing Corporation, and Emerging Markets Clearing Corporation, also subsidiaries
of DTCC, as well as by The New York Stock Exchange, Inc., the American Stock Exchange LLC, and the
Financial Industry Regulatory Authority, Inc. (FINRA). Access to DTCs system is also available
to others, such as U.S. and non-U.S. securities brokers and dealers, banks, and
-15-
trust companies that clear through or maintain a custodial relationship with a DTC participant,
either directly or indirectly. The rules applicable to DTC and DTC participants are on file with
the SEC.
If specified in the applicable prospectus supplement, investors may elect to hold interests in the
offered securities outside the United States through Clearstream Banking, société anonyme
(Clearstream), or Euroclear Bank S.A./N.V., as operator of the Euroclear System (Euroclear), if
they are participants in those systems, or indirectly through organizations that are participants
in those systems. Clearstream and Euroclear will hold interests on behalf of their participants
through customers securities accounts in Clearstreams and Euroclears names on the books of their
respective depositaries. Those depositaries in turn hold those interests in customers securities
accounts in the depositaries names on the books of DTC.
Clearstream has advised us that it is incorporated under the laws of Luxembourg as a professional
depositary. Clearstream holds securities for its participants and facilitates the clearance and
settlement of securities transactions between its participants through electronic book-entry
transfers between their accounts. Clearstream provides its participants with, among other things,
services for safekeeping, administration, clearance, and settlement of internationally traded
securities and securities lending and borrowing. Clearstream interfaces with domestic securities
markets in several countries through established depository and custodial relationships. As a
professional depositary, Clearstream is subject to regulation by the Luxembourg Commission for the
Supervision of the Financial Sector, also known as the Commission de Surveillance du Secteur
Financier. Clearstream participants are recognized financial institutions around the world,
including underwriters, securities brokers and dealers, banks, trust companies, clearing
corporations, and other organizations. Clearstreams participants in the United States are limited
to securities brokers and dealers and banks. Indirect access to Clearstream is also available to
other institutions such as banks, brokers, dealers, and trust companies that clear through or
maintain a custodial relationship with Clearstream participants.
Distributions with respect to interests in global securities held through Clearstream will be
credited to cash accounts of its customers in accordance with its rules and procedures, to the
extent received by the U.S. depositary for Clearstream.
Euroclear has advised us that it was created in 1968 to hold securities for its participants and to
clear and settle transactions between Euroclear participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and cash. Euroclear
provides various other services, including securities lending and borrowing, and interfaces with
domestic markets in several countries. Euroclear is operated by Euroclear Bank S.A./N.V. under
contract with Euroclear plc, a U.K. corporation. Euroclear participants include banks, including
central banks, securities brokers and dealers, and other professional financial intermediaries.
Indirect access to Euroclear is also available to other firms that clear through or maintain a
custodial relationship with a Euroclear participant, either directly or indirectly.
Distributions with respect to interests in global securities held beneficially through Euroclear
will be credited to the cash accounts of Euroclear participants in accordance with Euroclears
terms and conditions and operating procedures and applicable Belgian law, to the extent received by
the U.S. depositary for Euroclear.
Global Clearance and Settlement Procedures
Unless otherwise specified in a prospectus supplement with respect to a particular series of global
securities, initial settlement for global securities will be made in immediately available funds.
DTC participants will conduct secondary market trading with other DTC participants in the ordinary
way in accordance with DTC rules. Thereafter, secondary market trades will settle in immediately
available funds using DTCs same day funds settlement system.
If the prospectus supplement specifies that interests in the global securities may be held through
Clearstream or Euroclear, Clearstream customers and/or Euroclear participants will conduct
secondary market trading with other Clearstream customers and/or Euroclear participants in the
ordinary way in accordance with the applicable rules and operating procedures of Clearstream and
Euroclear. Thereafter, secondary market trades will settle in immediately available funds.
-16-
Cross-market transfers between persons holding directly or indirectly through DTC on the one hand,
and directly or indirectly through Clearstream customers or Euroclear participants, on the other,
will be effected in DTC in accordance with DTCs rules on behalf of the relevant European
international clearing system by the U.S. depositary for that system; however, those cross-market
transactions will require delivery by the counterparty in the relevant European international
clearing system of instructions to that system in accordance with its rules and procedures and
within its established deadlines (European time). The relevant European international clearing
system will, if the transaction meets its settlement requirements, deliver instructions to the U.S.
depositary for that system to take action to effect final settlement on its behalf by delivering or
receiving interests in global securities in DTC, and making or receiving payment in accordance with
normal procedures for same-day funds settlement applicable to DTC. Clearstream customers and
Euroclear participants may not deliver instructions directly to DTC.
Because of time-zone differences, credits of interests in global securities received in Clearstream
or Euroclear as a result of a transaction with a DTC participant will be made during subsequent
securities settlement processing and will be credited the business day following the DTC settlement
date. Those credits or any transactions in global securities settled during that processing will
be reported to the relevant Euroclear participants or Clearstream customers on that business day.
Cash received in Clearstream or Euroclear as a result of sales of interests in global securities by
or through a Clearstream customer or a Euroclear participant to a DTC participant will be received
with value on the DTC settlement date but will be available in the relevant Clearstream or
Euroclear cash account only as of the business day following settlement in DTC.
Although DTC, Clearstream, and Euroclear have agreed to the procedures described above in order to
facilitate transfers of interests in global securities among DTC participants, Clearstream, and
Euroclear, they are under no obligation to perform those procedures and those procedures may be
discontinued at any time.
-17-
PLAN OF DISTRIBUTION
We may sell the securities covered by this prospectus in one or more of the following ways from
time to time:
|
|
|
to or through underwriters or dealers for resale to the purchasers; |
|
|
|
|
directly to purchasers; |
|
|
|
|
through agents or dealers to the purchasers; or |
|
|
|
|
through a combination of any of these methods of sale. |
In addition, we may enter into derivative or other hedging transactions with third parties, or sell
securities not covered by this prospectus to third parties in privately negotiated transactions.
The applicable prospectus supplement may indicate that third parties may sell securities covered by
this prospectus and the applicable prospectus supplement, including in short sale transactions to
the extent not prohibited by law, regulation, or order, in connection with those derivatives. If
so, the third party may use securities we pledge or that are borrowed from us or others to settle
those sales or to close out any related open borrowings of stock, and may use securities received
from us in settlement of those derivatives to close out any related open borrowings of stock. The
third party in those sale transactions will be an underwriter and, if applicable, will be
identified in the applicable prospectus supplement (or a post-effective amendment thereto).
A prospectus supplement with respect to each offering of securities will include, to the extent
applicable:
|
|
|
the terms of the offering; |
|
|
|
|
the name or names of any underwriters, dealers, remarketing firms, or agents and the
terms of any agreement with those parties, including the compensation, fees, or
commissions received by, and the amount of securities underwritten, purchased, or
remarketed by, each of them, if any; |
|
|
|
|
the public offering price or purchase price of the securities and an estimate of the
net proceeds to be received by us from any such sale, as applicable; |
|
|
|
|
any underwriting discounts or agency fees and other items constituting underwriters
or agents compensation; |
|
|
|
|
the anticipated delivery date of the securities, including any delayed delivery
arrangements, and any commissions we may pay for solicitation of any such delayed
delivery contracts; |
|
|
|
|
that the securities are being solicited and offered directly to institutional
investors or others; |
|
|
|
|
any discounts or concessions to be allowed or reallowed or to be paid to agents or
dealers; and |
|
|
|
|
any securities exchange on which the securities may be listed. |
Any offer and sale of the securities described in this prospectus by us, any underwriters, or other
third parties described above may be effected from time to time in one or more transactions,
including, without limitation, privately negotiated transactions, either:
|
|
|
at a fixed public offering price or prices, which may be changed; |
|
|
|
|
at market prices prevailing at the time of sale; |
|
|
|
|
at prices related to prevailing market prices at the time of sale; or |
|
|
|
|
at negotiated prices. |
-18-
Offerings of securities covered by this prospectus also may be made into an existing trading market
for those securities in transactions at other than a fixed price, either:
|
|
|
on or through the facilities of the NYSE or any other securities exchange or
quotation or trading service on which those securities may be listed, quoted, or traded
at the time of sale; and/or |
|
|
|
|
to or through a market maker otherwise than on the NYSE or those other securities
exchanges or quotation or trading services. |
Those at-the-market offerings, if any, will be conducted by underwriters acting as principal or
agent of Wilmington Trust, who may also be third-party sellers of securities as described above.
In addition, we may sell some or all of the securities covered by this prospectus through:
|
|
|
purchases by a dealer, as principal, who may then resell those securities to the
public for its account at varying prices determined by the dealer at the time of resale
or at a fixed price agreed to with us at the time of sale; |
|
|
|
|
block trades in which a dealer will attempt to sell as agent, but may position or
resell a portion of the block as principal in order to facilitate the transaction;
and/or |
|
|
|
|
ordinary brokerage transactions and transactions in which a broker-dealer solicits
purchasers. |
Any dealer may be deemed to be an underwriter, as that term is defined in the Securities Act of
1933, as amended (the Securities Act), of the securities so offered and sold.
In connection with offerings made through underwriters or agents, we may enter into agreements with
those underwriters or agents pursuant to which we receive our outstanding securities in
consideration for the securities being offered to the public for cash. In connection with these
arrangements, the underwriters or agents also may sell securities covered by this prospectus to
hedge their positions in any such outstanding securities, including
in short sale transactions to the extent not prohibited by law, regulation, or order. If
so, the underwriters or agents may use the securities received from us under those arrangements to
close out any related open borrowings of securities.
We may loan or pledge securities to a financial institution or other third party that in turn may
sell the loaned securities or, in any event of default in the case of a pledge, sell the pledged
securities using this prospectus and the applicable prospectus supplement. That financial
institution or third party may transfer its short position to investors in our securities or in
connection with a simultaneous offering of other securities covered by this prospectus.
We may solicit offers to purchase the securities covered by this prospectus directly from, and we
may make sales of such securities directly to, institutional investors or others, who may be deemed
to be underwriters within the meaning of the Securities Act with respect to any resale of such
securities.
The securities may also be offered and sold, if so indicated in a prospectus supplement, in
connection with a remarketing upon their purchase, in accordance with a redemption or repayment
pursuant to their terms, or otherwise, by one or more remarketing firms acting as principals for
their own accounts or as agents for us.
If indicated in the applicable prospectus supplement, we may sell the securities through agents
from time to time. We generally expect that any agent will be acting on a best efforts basis for
the period of its appointment.
As one of the means of direct issuance of securities, we may utilize the service of an entity
through which we may conduct an electronic dutch auction or similar offering of the offered
securities among potential purchasers who are eligible to participate in the auction or offering of
such offered securities, if so described in the applicable prospectus supplement.
We may authorize underwriters, dealers, or agents to solicit offers by certain purchasers to
purchase the securities from us at the public offering price set forth in the applicable prospectus
supplement pursuant to delayed delivery
-19-
contracts providing for payment and delivery on a specified date in the future. The delayed
delivery contracts will be subject only to those conditions set forth in the applicable prospectus
supplement.
If underwriters are used in any sale of any securities, the securities may be either offered to the
public through underwriting syndicates represented by managing underwriters, or directly by
underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the
underwriters to purchase any securities will be conditioned on customary closing conditions, and
the underwriters will be obligated to purchase all of that series of securities if any are
purchased.
Underwriters, dealers, agents, and remarketing firms may at the time of any offering of securities
be entitled under agreements entered into with us to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, or to contribution with respect to
payments that the underwriters, dealers, agents, and remarketing firms may be required to make.
Underwriters, dealers, agents, and remarketing agents may be customers of, engage in transactions
with, or perform services in the ordinary course of business for us and/or our affiliates.
Each series of debt securities will be a new issue of debt securities and will have no established
trading market. The securities sold pursuant to this prospectus may or may not be listed on a
national securities exchange or foreign securities exchange. No assurance can be given as to the
liquidity or activity of any trading in the offered securities.
Any underwriters to whom securities covered by this prospectus are sold by us for public offering
and sale, if any, may make a market in the securities, but those underwriters will not be obligated
to do so and may discontinue any market making at any time without notice.
In compliance with the guidelines of FINRA, no FINRA member may receive an amount of underwriting
compensation in connection with a public offering of securities that is unfair or unreasonable.
For determining the maximum amount of underwriting compensation considered fair and reasonable, the
following factors are taken into consideration: the offering proceeds, the amount of risk assumed
by the underwriter and related persons, and the type of securities being offered. FINRA guidelines
note that fair and reasonable compensation generally will vary directly with the amount of risk
assumed by participating members, and inversely with the dollar amount of the offering proceeds.
If more than 10% of the net proceeds of any offering of securities made under this prospectus will
be received by FINRA members participating in the offering or affiliates or associated persons of
such FINRA members, the offering will be conducted in accordance with NASD Conduct
Rule 2710(h).
-20-
LEGAL MATTERS
Unless otherwise specified in the applicable prospectus supplement, the validity of the common
stock and debt securities of Wilmington Trust Corporation covered by this prospectus will be passed
upon for us by Gerard A. Chamberlain, Esquire, Deputy General Counsel and Vice President. Mr.
Chamberlain is an employee of Wilmington Trust Company and owns stock and options to purchase
greater than 500 shares of stock of Wilmington Trust Corporation. If legal matters in connection
with offerings made by this prospectus are passed on by counsel for the underwriters, dealers, or
agents, if any, that counsel will be named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Wilmington Trust Corporation as of December 31, 2007 and
2006, and for each of the years in the three-year period ended December 31, 2007, and managements
assessment of the effectiveness of internal control over financial reporting as of December 31,
2007, have been incorporated by reference herein in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The audit report covering the
December 31, 2007 financial statements refers to the Companys adoption of Statement of Financial
Accounting Standards No. 123 (revised), Share-Based Payment, effective January 1, 2006, and
Statement of Financial Accounting Standards No. 158, Employers Accounting for Defined Benefit
Pension and Other Postretirement Plans, effective December 31, 2006.
-21-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses, payable by us in connection
with the distribution of the securities being registered.
|
|
|
|
|
SEC Registration Fees |
|
$ |
# |
|
Rating Agency Fees |
|
|
425,000 |
|
Printing and engraving fees |
|
|
42,000 |
|
Accountant fees and expenses |
|
|
325,000 |
|
Legal fees and expenses |
|
|
350,000 |
|
Trustees fees and expenses |
|
|
8,000 |
|
Miscellaneous expenses |
|
|
70,000 |
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
1,220,000 |
* |
|
|
|
|
|
|
|
# |
|
Deferred in reliance on Rule 456(b) and 457(r). |
|
* |
|
Plus SEC Registration Fees. |
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Restated Certificate of Incorporation provides that a director will not be liable to Wilmington
Trust or its stockholders for monetary damages for breach of fiduciary duty as a director, unless
that limitation on liability is not permitted under Delawares General Corporation Law. Our Bylaws
provide that we will indemnify a person threatened to be made a party or otherwise involved in any
proceeding because he or she is or was our director, or is or was serving at our written request as
a director, officer, employee, or agent of another entity, against liability that person suffers
and expenses that person incurs. Our Bylaws provide that we may indemnify a person threatened to
be made a party or otherwise involved in any proceeding because he or she is or was our officer or
employee against liability that person suffers and expenses that person bears. We must indemnify a
person in connection with a proceeding that person initiates only if our Board of Directors
authorized that proceeding, In addition, we have directors and officers liability insurance
policies which, under certain circumstances, insure directors and officers against the cost of
defense, settlement, or payment of judgment.
Section 145 of Delawares General Corporation Law provides that a corporation may indemnify its
officers, directors, employees, and agents (or persons who served, at the corporations request, as
officers, directors, employees, or agents of another corporation) against expenses they incur in
defending any action as a result of being a director, officer, employee, or agent if that person
acted in good faith and in a manner reasonably believed to be in or not opposed to the
corporations best interests. In the case of any criminal action or proceeding, the individual
must have had no reason to believe his or her conduct was unlawful.
ITEM 16. EXHIBITS
The exhibits to this registration statement are listed in the Exhibit Index, which appears
elsewhere herein and is incorporated by reference herein.
ITEM 17. UNDERTAKINGS
|
(a) |
|
The undersigned registrant hereby undertakes: |
II-1
|
(1) |
|
To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: |
|
(i) |
|
To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933; |
|
|
(ii) |
|
To reflect in the prospectus any facts or
events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective registration
statement; and |
|
|
(iii) |
|
To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement; |
|
(A) |
|
Paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the registration statement
is on Form S-3 or Form F-3 and the information required to be included
in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement. |
|
(2) |
|
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
|
|
(3) |
|
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering. |
|
|
(4) |
|
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser: |
|
(i) |
|
Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of this
registration statement as of the date the filed prospectus was deemed
part of and included in this registration statement; and |
|
|
(ii) |
|
Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the |
II-2
|
|
|
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; Provided, however, that no
statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior
to such effective date. |
|
(5) |
|
That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities: |
|
|
|
|
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser: |
|
(i) |
|
Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be filed
pursuant to Rule 424; |
|
|
(ii) |
|
Any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant; |
|
|
(iii) |
|
The portion of any other free writing
prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and |
|
|
(iv) |
|
Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser. |
|
(b) |
|
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrants annual
report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plans annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
|
(c) |
|
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue. |
|
|
(d) |
|
The undersigned registrant hereby undertakes that: |
|
(1) |
|
For purposes of determining liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to |
II-3
|
|
|
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective.
|
|
(2) |
|
For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. |
|
(e) |
|
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Trust Indenture Act (Act) in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the Act. |
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Wilmington Trust
Corporation certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 1 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wilmington,
State of Delaware, on September 22, 2008.
|
|
|
|
|
|
WILMINGTON TRUST CORPORATION
|
|
Dated: September 22, 2008 |
By: |
/s/ David R. Gibson |
|
|
|
David R. Gibson
Executive Vice President and |
|
|
|
Chief Financial Officer |
|
|
* * * * *
Pursuant to the requirements of the Securities Act, this registration statement has been signed
below by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
*
Ted T. Cecala
|
|
Director, Chairman of the Board,
and Chief Executive Officer
(Principal Executive Officer)
|
|
September 22, 2008 |
|
|
|
|
|
*
Robert V.A. Harra Jr.
|
|
Director, President, and Chief
Operating Officer
|
|
September 22, 2008 |
|
|
|
|
|
*
David R. Gibson
|
|
Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
|
|
September 22, 2008 |
|
|
|
|
|
*
Kevyn N. Rakowski
|
|
Senior Vice President and Controller
(Principal Accounting Officer)
|
|
September 22, 2008 |
|
|
|
|
|
*
Carolyn S. Burger
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
Thomas L. duPont
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
R. Keith Elliott
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
|
|
Director
|
|
September 22, 2008 |
II-5
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
*
Gailen Krug
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
Rex L. Mears
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
Stacey J. Mobley
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
Michele M. Rollins
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
David P. Roselle
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
Oliver R. Sockwell
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
Robert W. Tunnell Jr.
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
*
Susan D. Whiting
|
|
Director
|
|
September 22, 2008 |
|
|
|
|
|
* /s/ Gerard A. Chamberlain
Gerard A. Chamberlain
|
|
Attorney-in-fact
|
|
September 22, 2008 |
II-6
EXHIBIT INDEX
|
|
|
EXHIBIT NO. |
|
DESCRIPTION |
|
1.1
|
|
Form of Underwriting Agreement for Debt Securities to be filed as an Exhibit to a Current
Report on Form 8-K or other report to be filed by the Corporation pursuant to Section 13(a)
or 15(d) of the Exchange Act and incorporated by reference herein. |
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation of the Corporation (Commission File Number
1-14659).1 |
|
|
|
3.2
|
|
Amended and Restated Bylaws of the Corporation (Commission File Number 1-14659).2 |
|
|
|
4.1
|
|
Amended and Restated Rights Agreement dated as of December 16, 2004 between Wilmington Trust
Corporation and Wells Fargo Bank, N.A. (Commission File Number 1-14659).3 |
|
|
|
4.2
|
|
Indenture relating to Subordinated Debt Securities dated as of May 4, 1998 between
Wilmington Trust Corporation and Norwest Bank Minnesota, National Association.4 |
|
|
|
4.3
|
|
Form of Indenture relating to Senior Debt Securities.5 |
|
|
|
4.4
|
|
Form of Subordinated Debt Security, to be filed as an Exhibit to a Current Report on Form
8-K or other report to be filed by the Corporation pursuant to Section 13(a) or 15(d) of the
Exchange Act and incorporated by reference herein. |
|
|
|
4.5
|
|
Form of Senior Debt Security, to be filed as an Exhibit to a Current Report on Form 8-K or
other report to be filed by the Corporation pursuant to Section 13(a) or 15(d) of the
Exchange Act and incorporated by reference herein. |
|
|
|
5.1
|
|
Opinion of Gerard A. Chamberlain,
Deputy General Counsel and Vice President of the Corporation. 6 |
|
|
|
12.1
|
|
Statement Regarding Computation of Ratios of Earnings to Fixed Charges. 6 |
|
|
|
23.1
|
|
Consent of KPMG LLP. 6 |
|
|
|
23.2
|
|
Consent of Gerard A. Chamberlain,
Deputy General Counsel and Vice President of the Corporation (included in Exhibit 5.1 hereto). |
|
|
|
24.1
|
|
Power of Attorney (included on signature pages to the original registration statement filed
on November 29, 2007). |
|
|
|
25.1
|
|
Statement of Eligibility of Trustee on Form T-1 for Wells Fargo Bank, N.A., as Trustee under
the Indenture for Subordinated Debt Securities. 7 |
|
|
|
1 |
|
Incorporated by reference to Exhibit 3(a) to the Report on Form S-8 of Wilmington
Trust Corporation filed on October 31, 1991. |
|
2 |
|
Incorporated by reference to Exhibit 1 to the Current Report on Form 8-K of Wilmington
Trust Corporation filed on December 22, 2004. |
|
3 |
|
Incorporated by reference to Exhibit 1 to the Form 8-A/A of Wilmington Trust
Corporation filed on December 16, 2004. |
|
4 |
|
Incorporated by reference to Exhibit 4.2 to the Form S-3 of Wilmington Trust
Corporation filed on November 29, 2007. |
|
5 |
|
Incorporated by reference to Exhibit 4.1 to the Form S-3 of Wilmington Trust
Corporation filed on March 31, 1998. |
|
6 |
|
Filed herewith. |
|
7 |
|
Incorporated by reference to Exhibit 25.1 to the Form S-3 of Wilmington Trust
Corporation filed on November 29, 2007. |