sv3asr
As
Filed With The Securities And Exchange Commission On November 29, 2007
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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:
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Gerard A. Chamberlain, Esquire
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(302) 651-1268
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Richard F. Langan, Jr., Esquire
Nixon Peabody LLP
437 Madison Avenue
New York, New York 10022
(212) 940-3000
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Roxane F. Reardon, Esquire
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York, 10017
(212) 455-2758 |
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this 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. o
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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maximum |
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maximum |
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Amount of |
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Amount to be |
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offering price |
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aggregate |
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registration |
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Title of each class of securities to be registered |
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registered |
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per unit |
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offering price |
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fee |
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Debt Securities |
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(1)(2) |
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(1)(2) |
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(1)(2) |
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(3) |
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(1) |
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Not applicable pursuant to Form S-3 General Instruction II(E). Also see footnote
(3) below. |
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(2) |
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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. |
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(3) |
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In accordance with Rule 456(b) and Rule 457(r), the registrant is deferring payment
of the entire registration fee. |
PROSPECTUS
WILMINGTON
TRUST CORPORATION
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 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 and the terms of the
securities being offered. Any such prospectus supplement also
may add to or update information contained in this prospectus.
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.
Our common stock is listed on the New York Stock Exchange (the
NYSE) under the trading symbol WL. Each
prospectus supplement will indicate if the securities offered
thereby will be listed on any securities exchange.
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, 2006, filed with the
Securities and Exchange Commission (the SEC) on
March 1, 2007, 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 1 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 November 29, 2007.
TABLE OF
CONTENTS
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Page
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About This Prospectus
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1
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Risk Factors
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1
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Where You Can Find More Information
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1
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Forward-Looking Information
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2
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Ratio of Earnings To Fixed Charges
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4
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Use of Proceeds
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5
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Description of Debt Securities
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6
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Book-Entry Issuance
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11
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Plan of Distribution
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14
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Legal Matters
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16
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Experts
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In this prospectus, we, us,
our, Wilmington Trust, and the
Company refer to Wilmington Trust Corporation
and its subsidiaries, unless specified otherwise.
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This prospectus is part of a registration statement that we
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. 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 also may add to, update, or
change information contained in this prospectus and,
accordingly, to the extent inconsistent, the information in this
prospectus is superseded by the information in the 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, 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. We are not
making an offer to sell these securities 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.
You should consider carefully the specific risks described in
our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2006, 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 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.
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
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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 us (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):
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Annual Report on
Form 10-K
for the fiscal year ended December 31, 2006 (which we filed
with the SEC on March 1, 2007);
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Parts I, II, and IV of our Annual Report to Shareholders for
2006, which we filed as Exhibit 13 to our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2006 (which we filed
with the SEC on March 1, 2007);
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Part III of our Definitive Proxy Statement on Schedule 14A
(which we filed with the SEC on March 8, 2007);
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Quarterly Reports on
Form 10-Q
for the quarter ended March 31, 2007 (which we filed with
the SEC on May 10, 2007), for the quarter ended
June 30, 2007 (which we filed with the SEC on
August 9, 2007), and for the quarter ended
September 30, 2007 (which we filed with the SEC on
November 9, 2007); and
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Forms 8-K
we filed with the SEC on February 20, 2007, May 7,
2007, June 1, 2007, July 25, 2007, and
September 20, 2007.
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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 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) significant changes in banking laws or
regulations, (4) increased competition in our markets,
(5) higher-than-expected credit losses, (6) the effect
of acquisitions and integration of acquired businesses,
(7) unanticipated changes in regulatory, judicial, or
legislative
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tax treatment of business transactions, and (8) economic
uncertainty created by increasing unrest in other parts of the
world. 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, 2006, 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.
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RATIO
OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods
indicated is as follows:
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Nine Months Ended
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September 30,
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Year Ended December 31,
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2007
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2006
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2005
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2004
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2003
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2002
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Ratio of earnings to fixed charges
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Excluding interest on deposits
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4.0
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3.6
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5.3
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7.0
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7.5
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7.2
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Including interest on deposits
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1.8
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1.7
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2.4
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3.2
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3.2
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2.6
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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.
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Unless otherwise indicated in the applicable prospectus
supplement, we intend to use the net proceeds of any securities
sold for general corporate purposes.
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DESCRIPTION
OF DEBT SECURITIES
General
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:
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the title of those securities;
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the limit, if any, on the aggregate principal amount or
aggregate initial public offering price of those securities;
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the priority of payment of those securities;
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the price or prices at which the securities will be issued
(which may be expressed as a percentage of the aggregate
principal amount thereof);
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the date or dates on which the principal of the securities will
be payable;
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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;
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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);
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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;
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each office or agency at which the securities may be presented
for registration of transfer or exchange;
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the place or places at which the principal of, premium, if any,
and interest, if any, on the securities will be payable;
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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;
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the denomination or denominations in which those securities are
authorized to be issued;
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whether any of the securities will be issued as Original Issue
Discount Securities (as defined below);
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information with respect to book-entry procedures, if any, to
the extent they differ from the book-entry procedures described
herein;
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any additional covenants or events of default not currently set
forth in the applicable Indenture; and
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any other terms of those securities not inconsistent with the
provisions of the applicable Indenture.
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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 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
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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:
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default in the payment when due of principal of or premium, if
any, on any outstanding Senior Securities of that series;
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default in the payment when due of interest on any outstanding
Senior Securities of that series and continuance of that default
for 30 days;
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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;
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certain events of bankruptcy, insolvency, or reorganization of
us; and
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any other event that may be specified in a prospectus supplement
with respect to any series of Senior Securities.
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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 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.
8
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, 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
9
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:
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an Event of Default with respect to that series;
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default in the payment when due of the principal of or premium,
if any, on any Subordinated Security of that series;
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default in the payment when due of interest upon any
Subordinated Security of that series and the continuance of that
default for 30 days;
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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
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any other Default provided with respect to Subordinated
Securities of that series.
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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.
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
10
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.
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.
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.
11
A global security is exchangeable for certificated securities
registered in the name of a person other than DTC or its nominee
only if:
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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
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we determine in our discretion that the global security will be
exchangeable for certificated securities in registered form.
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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 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
12
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.
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
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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.
We may sell the securities covered by this prospectus in one or
more of the following ways from time to time:
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to or through underwriters or dealers for resale to the
purchasers;
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directly to purchasers;
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through agents or dealers to the purchasers; or
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through a combination of any of these methods of sale.
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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, 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 series of
securities will include, to the extent applicable:
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the terms of the offering;
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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;
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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;
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any underwriting discounts or agency fees and other items
constituting underwriters or agents compensation;
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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;
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that the securities are being solicited and offered directly to
institutional investors or others;
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any discounts or concessions to be allowed or reallowed or to be
paid to agents or dealers; and
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any securities exchange on which the securities may be listed.
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14
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:
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at a fixed public offering price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to prevailing market prices at the time of
sale; or
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at negotiated prices.
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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:
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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
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to or through a market maker otherwise than on the NYSE or those
other securities exchanges or quotation or trading services.
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Those at-the-market offerings, if any, will be conducted by
underwriters acting as our principal or agent, 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:
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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;
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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
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ordinary brokerage transactions and transactions in which a
broker-dealer solicits purchasers.
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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. 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.
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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 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 securities will be a new issue of 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, the aggregate
maximum discount, commission, agency fees, or other items
constituting underwriting compensation to be received by any
FINRA member or independent broker-dealer will not exceed 8% of
any offering pursuant to this prospectus and any applicable
prospectus supplement; however, we anticipate that the maximum
commission or discount to be received in any particular offering
of securities will be significantly less than this amount.
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).
Unless otherwise specified in the applicable prospectus
supplement, the validity of the securities covered by this
prospectus will be passed upon for us by Gerard A. Chamberlain,
Esquire, Vice President and Counsel of Wilmington Trust.
Mr. Chamberlain is an employee of Wilmington
Trust Company and owns stock and options to purchase a
total of 23,508 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.
The consolidated financial statements of Wilmington Trust
Corporation as of December 31, 2006 and 2005, and for each
of the years in the three-year period ended December 31,
2006, and managements assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2006, 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, 2006 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.
16
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 |
|
|
30,000 |
|
Accountant fees and expenses |
|
|
175,000 |
|
Legal fees and expenses |
|
|
200,000 |
|
Trustees fees and expenses |
|
|
8,000 |
|
Miscellaneous expenses |
|
|
20,000 |
|
|
|
|
|
Total |
|
$ |
858,000 |
|
|
|
|
|
|
|
|
# |
|
Deferred in reliance on Rule 456(b) and 457(r). |
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; |
Provided, however, That:
|
(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 applicable
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 a payment by the applicable
registrant of expenses incurred or paid by a director, officer or controlling person of
the applicable 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 their
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, the Registrant
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 registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Wilmington, State of Delaware, on
October 19, 2007.
|
|
|
|
|
|
WILMINGTON TRUST CORPORATION
|
|
Dated: October 19, 2007 |
By: |
/s/ Ted T. Cecala
|
|
|
|
Ted T. Cecala |
|
|
|
Director, Chairman of the Board, and Chief Executive
Officer |
|
|
* * * * *
POWER OF ATTORNEY
Each of the undersigned directors and officers of the Registrant hereby severally constitute and
appoint Gerard A. Chamberlain and Rosemary S. Goodier, as attorneys-in-fact for
the undersigned, in any and all capacities, with full power of substitution, to sign any and all
amendments to this registration statement, and to file the same with exhibits thereto and other
documents in connection therewith, including any registration statement or post-effective amendment
filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as they might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact may lawfully do or cause to be done by virtue hereof.
* * * * *
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 |
|
|
|
|
|
/s/ Ted T. Cecala
Ted T. Cecala
|
|
Director, Chairman of the Board,
and Chief Executive Officer
(Principal Executive Officer)
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Robert V.A. Harra, Jr.
Robert V.A. Harra Jr.
|
|
Director, President, and Chief
Operating Officer
|
|
October 19, 2007 |
|
|
|
|
|
/s/ David R. Gibson
David R. Gibson
|
|
Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Kevyn N. Rakowski
Kevyn N. Rakowski
|
|
Senior Vice President and Controller
(Principal Accounting Officer)
|
|
October 19, 2007 |
II-5
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
Carolyn S. Burger
Carolyn S. Burger
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Thomas L. duPont
Thomas L. duPont
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ R. Keith Elliott
R. Keith Elliott
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Donald E. Foley
Donald E. Foley
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Gailen Krug
Gailen Krug
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Rex L. Mears
Rex L. Mears
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Stacey J. Mobley
Stacey J. Mobley
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Michele M. Rollins
Michele M. Rollins
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ David P. Roselle
David P. Roselle
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Oliver R. Sockwell
Oliver R. Sockwell
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Robert W. Tunnell Jr.
Robert W. Tunnell Jr.
|
|
Director
|
|
October 19, 2007 |
|
|
|
|
|
/s/ Susan D. Whiting
Susan D. Whiting
|
|
Director
|
|
October 19, 2007 |
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 |
|
|
|
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)1 |
|
|
|
4.2
|
|
Indenture relating to Subordinated Debt Securities dated as of May 4, 1998 between
Wilmington Trust Corporation and Wells Fargo Bank, National Association (as successor by
merger to Norwest Bank Minnesota, National
Association)2 |
|
|
|
4.3
|
|
Form of Indenture relating to
Senior Debt Securities3 |
|
|
|
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,
Vice President and Counsel of the Corporation 2 |
|
|
|
12.1
|
|
Statement Regarding Computation of
Ratios of Earnings to Fixed Charges 2 |
|
|
|
23.1
|
|
Consent of KPMG
LLP 2 |
|
|
|
24.1
|
|
Power of Attorney (included on signature pages to this registration statement) |
|
|
|
25.1
|
|
Statement of Eligibility of Trustee on
Form T-1 for Wells Fargo Bank, National Association, as Trustee
under the Indenture for Subordinated Debt
Securities 2 |
|
|
|
1 |
|
Incorporated by reference to Exhibit 1 to the Form 8-A/A of Wilmington Trust
Corporation filed on December 22, 2004. |
|
2 |
|
Filed herewith. |
|
3 |
|
Incorporated by reference to Exhibit 4.1 to the Form S-3 of Wilmington Trust
Corporation filed on March 31, 1998. |