Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 181 1.09M
Business-Combination Transaction
2: EX-4.2 Indenture Date 12/18/97 Among Registrant & Chase 134 566K
3: EX-4.3 Form of $150,000,000 12 3/4% of Senior Note 23 66K
4: EX-4.4 Form of $150,000,000 New 12 3/4% Senior Notes 11 37K
5: EX-4.5 Form of Warrant to Purchase Common Stock 6 23K
6: EX-5.1 Opinion of Wilson Sonsini Goodrich & Rosati 2 13K
7: EX-10.43 Reg Rghts Agrmnt 12/18/97 Btwn Reg & Ubs SEC. 25 102K
8: EX-10.44 Purchase Agreement 12/15/97 Btwn Reg & Initial Pur 31 133K
9: EX-10.45 Warrant Agrmnt 12/18/97 Btwn Reg & Chase Manhattan 29 126K
10: EX-10.46 Warrant Reg Rights Agreement 12/18/97 24 108K
11: EX-10.47 Escrow Agrmnt 12/18/97 Btwn Reg & Chase Manhattan 25 103K
12: EX-12.1 Statement of Computation of Earnings Per Share 1 8K
13: EX-23.2 Consent of Ernst & Young 1 7K
14: EX-25.1 Statement of Eligibility of Form T-1 for Chase 26 84K
EX-25.1 — Statement of Eligibility of Form T-1 for Chase
Exhibit Table of Contents
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
_______________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)____
_________________________
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
__________________
CONCENTRIC NETWORK CORPORATION
(Exact name of Obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
65-0257497
(I.R.S. Employer Identification No.)
10590 North Tantau Avenue
Cupertino, CA
(Address of principal executive offices)
95014
(Zip Code)
________________________________
Senior Notes
(Title of Indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect.
Exhibit 2. Certificate of Authority of the Trustee to Commence Business.
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers
(Contained in Exhibit 2.)
Exhibit 4. Existing By-Laws of the Trustee.
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the
Act.
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the ______ day of ____________, 1998.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ Paula Oswald
-----------------
Paula Oswald
Assistant Vice President
EXHIBIT 1. Articles of Association of the Trustee as now in Effect.
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EXHIBIT 1
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
CHARTER NO. 23470
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to perform any lawful activities of
national banks, the undersigned do enter into the following Articles of
Association:
FIRST. The title of this Association shall be Chase Manhattan Bank and Trust
Company, National Association (the "Association").
SECOND. The main office of the Association shall be in the City of Los Angeles,
County of Los Angeles, State of California. The general business of the
Association shall be conducted at its main office and its branches.
THIRD. The board of directors of this Association shall consist of not less
than five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director, during the full term of his
directorship, shall own common or preferred stock of the Association or of a
holding company owning the Association, with an aggregate par, fair market or
equity value of not less than $1,000. Any vacancy in the board of directors may
be filled by action of the shareholders or a majority of the remaining
directors.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It
shall be held at the main office or any other convenient place the board of
directors may designate, on the day of each year specified therefore in the by-
laws, or if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is
held on the day fixed or in event of a legal holiday, on the following banking
day, an election may be held on any subsequent day within 60 days of the day
fixed, to be designated by the board of directors, or, if the directors fail to
fix the day, by shareholders representing two-thirds of the shares issued and
outstanding. Advance notice of the meeting may be waived duly waived by the
sole shareholder in accordance with 12 C.F.R. (S) 7.2001.
A director may resign at any time by delivering written notice to the board of
directors, its Chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause.
FIFTH. The authorized amount of capital stock of this Association shall be Six
Hundred Thousand ($600,000), divided into Six Thousand (6,000) shares of common
stock of the par value of One Hundred dollars ($100) each; but said capital
stock may be increased or decreased from time to time, according to the
provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued, or sold, nor
any right to subscription to any thereof other than such, if any, as the board
of directors, in its discretion may from time to time determine and at such
price as the board of directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH. The board of directors may appoint one of its members President of this
Association, and one of its members Chairperson of the board or two of its
members as Co-Chairpersons of the board, and shall have the power to appoint one
or more Vice Presidents, a Secretary who shall keep minutes of the directors'
and shareholders' meetings and be responsible for authenticating the records of
the Association, and such other officers and employees as may be required to
transact the business of this Association. A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of
directors in accordance with the by-laws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the
power of shareholders to increase or decrease the capital of the
Association in accordance with law.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial by-laws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal by-laws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a board of directors to
perform.
SEVENTH. The board of directors shall have the power to change the location of
the main office to any other location permitted under applicable law, without
the approval of the shareholders, and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location permitted under applicable law, without the approval of the
shareholders subject to approval by the Office of the Comptroller of the
Currency.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's board of directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
EXHIBIT 2. Certificate of Authority of the Trustee to Commence Business.
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EXHIBIT 2
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Comptroller of the Currency
Administrator of National Banks
--------------------------------------------------------------------------------
Northeastern District Licensing
1114 Avenue of the Americas, Suite 3900 Telephone: (212) 790-4055
New York, New York 10036 Fax:(212) 790-4098
November 14, 1997
Mr. Joseph R. Bielawa
Vice President and Assistant
General Counsel
THE CHASE MANHATTAN BANK
270 Park Avenue, 39th Floor
New York, New York 10017-2070
Re; Final Authorization to charter a national trust bank, Chase Trust Company,
National Association, Los Angeles, California ("Bank"), Charter No.: 23470
Dear Mr. Bielawa:
The Comptroller of the Currency (OCC) has found that you have met all conditions
imposed by the OCC and completed all steps necessary to commence the business of
a national trust bank. This letter constitutes OCC authorization to exercise
fiduciary powers. Your charter certificate is enclosed. You are authorized to
commence business on November 15, 1997.
You are reminded that several of the standard conditions contained in the
preliminary approval letter dated August 12, 1997 will continue to apply once
the bank opens and by opening, you agree to subject your association to these
conditions of operation. Some of the conditions bear reiteration here:
1. The trust company's financial statements must be prepared on an accrual
basis, if applicable, according to generally accepted accounting principles.
2. For a period of two years after the trust company has opened for business,
the OCC must review and have no objection to any new executive officer or
director prior to that person assuming such position. The proposed individual
may not assume the position until the OCC has issued a letter of no
objection.
3. The president must serve as a member of the board of directors.
Mr. Joseph R. Bielawa
THE CHASE MANHATTAN BANK
Page two
4. The board of directors is responsible for regular review and update of
policies and procedures and for assuring ongoing compliance with them. This
includes maintaining an internal control system that ensures compliance with
the currency reporting and record keeping requirements of the Bank Secrecy
Act (BSA). The board is expected to train its personnel in BSA procedures and
designate one person or a group to monitor day-to-day compliance.
5. Stock certificates must not be issued prior to the date the trust company
opens for business, but must be issued immediately following the opening of
the bank.
Following the commencement of operations, bank management is urged to become
familiar with the requirements of the Securities Exchange Act of 1934 and Part
11 of the Comptroller's regulations relative to the registration of the bank's
equity securities and related periodic reports. These requirements will be
applicable to your bank when the number of shareholders of record is maintained
at 500 or more. Such registration may be subsequently terminated pursuant to the
Act, only when the number of shareholders of record is reduced to fewer than
300.
Should you have any questions regarding the supervision of your bank, please
contact National Bank Examiner Mr. Anthony DiLorenzo who will be responsible for
OCC's ongoing supervisory effort at your institution.
Sincerely,
/s/ Michael G. Tiscia
Licensing Manager
Enclosure
cc: Official File
Field File
--------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
--------------------------------------------------------------------------------
Northeastern District Licensing
1114 Avenue of the Americas, Suite 3900 Telephone: (212) 790-4055
New York, New York 10036 Fax:(212) 790-4098
November 14, 1997
Mr. Joseph R. Bielawa
Vice President and Assistant
General Counsel
THE CHASE MANHATTAN BANK
270 Park Avenue, 39th Floor
New York, New York 10017-2070
Re: 1) Application to consolidate The Chase Manhattan Trust Company of
California , National Association, San Francisco, California, Charter No.
20435, and Chase Trust Company of California, San Francisco, California,
and Chase Trust Company, National Association, Los Angeles, California,
Charter No. 23470, under the charter number of the latter and with the
title of "Chase Manhattan Bank and Trust Company, National Association"
("Resulting Bank"), 2) Amendment to the Articles of Association of the
Resulting Bank, and 3) Purchase and assumption of the assets and
liabilities of the Los Angeles branch of Chase Manhattan Private Bank,
National Association, Tampa, Florida, Charter No. 21177, by Chase Manhattan
Bank and Trust Company, National Association.
Dear Mr. Bielawa:
This letter is the official certification of the Office of the Comptroller of
the Currency (OCC) for the consolidation of three uninsured trust banks, The
Chase Manhattan Trust Company of California, National Association, San
Francisco, California, Charter No. 20435, and Chase Trust Company of California,
San Francisco, California, and Chase Trust Company, National Association, Los
Angeles, California, Charter No. 23470, under the charter number of the latter
and with the title of "CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL
ASSOCIATION", ("Resulting bank"), effective November 15, 1997. The former San
Francisco head offices of the consolidating banks will not be retained as
branches of the Resulting Bank.
Also, receipt is acknowledged of the Secretary Certificate of Shareholder
Approval which amends the Resulting Bank's Article Second of its Articles of
Association by expanding the Resulting Bank's activities to those of a full
service bank, upon the receipt of FDIC insurance and effective November 15, 1997
("Insured Resulting Bank"). The amendment
Mr. Joseph R. Bielawa
THE CHASE MANHATTAN BANK
Page two
was filed pursuant to OCC approval dated August 12, 1997. Attached is a copy of
the accepted Amendment for the Bank's files. Finally, this letter is also the
official certification of the OCC to the Insured Resulting Bank to purchase
certain assets and assume certain liabilities of the LOS ANGELES BRANCH of Chase
Manhattan Private Bank, National Association, Tampa, Florida, effective November
15, 1997.
The Los Angeles Branch, located at 1800 Century Park East, Los Angeles,
California will not be operated as a separate branch of the Insured Resulting
Bank. The Los Angeles Branch Certificate (#104350A) should be returned to this
Office as soon as possible.
Very truly yours,
/s/ Michael G. Tiscia
Michael G. Tiscia
Licensing Manager
Charter No. 23470
Control No. 97 NE 02 0027
97 NE 02 0028
***OCC SEAL***
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
WASHINGTON, D.C.
Whereas, satisfactory evidence has been presented by the Comptroller of the
Currency that Chase Trust Company, National Association located in Los Angeles
State of California has complied with all provisions of the statutes of the
United States required to be complied with before being authorized to commence
the business of banking as a National Banking Association;
Now therefore, I hereby certify that the above-named association is authorized
to commence the business of banking as a National Banking Association.
[SEAL] In testimony whereof, witness my signature and
seal of office this 15th day of November 1997
Charter No. 23470
Deputy Comptroller of the Currency
EXHIBIT 3. Authorization of the Trustee to Exercise Corporate Trust Powers.
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(Contained in Exhibit 2.)
EXHIBIT 4. Existing By-laws of the Trustee.
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EXHIBIT 4
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The regular annual meeting of the shareholders to
elect directors and transact whatever other business may properly come before
the meeting, shall be held at the main office of the Association, or such other
place as the board may designate, and at such time in each year as may be
designated by the board of directors. Unless otherwise provided by law, notice
of the meeting may be waived by the Association's sole shareholder in accordance
with 12 C.F.R. (S) 7.2001. If, for any cause, an election of directors is not
made on that date, or in the event of a legal holiday, on the next following
banking day, an election may be held on any subsequent day within 60 days of the
date fixed, to be designated by the board, or, if the directors fail to fix the
date, by shareholders representing two thirds of the shares issued and
outstanding.
Section 1.2. Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by a majority of the board of directors or by any one or more
shareholders owning, in the aggregate, not less than twenty-five percent of the
stock of the Association or by the Chairperson of the board of directors or the
President. Unless otherwise provided by law, advance notice of a special
meeting may be waived by the Association's Sole Shareholder in accordance with
12 C.F.R. (S) 7.2001.
Section 1.3. Nominations of Directors. Nominations for election to the board
of directors may be made by the board of directors or by any stockholder of any
outstanding class of capital stock of the Association entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of
the existing management of the Association, shall be made in writing and shall
be delivered or mailed to the President of the Association and to the
Comptroller of the Currency, Washington, D.C., not less than 14 days nor more
than 50 days prior to any meeting of shareholders called for the election of
directors, provided, however, that if less than 21 days' notice of the meeting
is given to shareholders, such nomination shall be mailed or delivered to the
President of the Association and to the Comptroller of the Currency not later
than
the close of business on the seventh (7th) day following the day on which the
notice of meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder.
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
(3) The total number of shares of capital stock of the Association that will be
voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the Association owned by the
notifying shareholder.
Nominations not made in accordance herewith may, in his/her discretion, be
disregarded by the Chairperson of the meeting, and upon his/her instructions,
the vote tellers may disregard all votes cast for each such nominee.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders
by proxies duly authorized in writing, but no officer or employee of this
Association shall act as proxy. Proxies shall be valid only for one meeting to
be specified therein, and any adjournments of such meeting. Proxies shall be
dated and filed with the records of the meeting. Proxies with rubber stamped
facsimile signatures may be used and unexecuted proxies may be counted upon
receipt of a confirming telegram from the shareholder. Proxies meeting above
requirements submitted at any time during a meeting shall be accepted.
Section 1.5 Quorum. A majority of the outstanding capital stock, represented
in person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant
to Section 10.2, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held, as adjourned, without further notice. A
majority of the votes cast shall decide every question or matter submitted to
the shareholders at any meeting, unless otherwise provided by law or by the
Articles of Association, or by the shareholders or directors pursuant to Section
10.2. Any action required or permitted to be taken by the shareholders may be
taken without a meeting by unanimous written consent of the shareholders to a
resolution authorizing the action. The resolution and the written consent shall
be filed with the minutes of the proceedings of the shareholders.
ARTICLE II
Directors
Section 2.1. Board of Directors. The board of directors ("board") shall have
the power to manage and administer the business and affairs of the Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the board.
Section 2.2. Number. The board shall consist of not less than five nor more
than twenty-five persons, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the full board or by resolution of a majority of the shareholders at any
meeting thereof; provided, however, that a majority of the full board may not
--------- --------
increase the number of directors to a number which: (1) exceeds by more than
two the number of directors last elected by shareholders where such number was
15 or less; and (2) exceeds by more than four the number of directors last
elected by shareholders where such number was 16 or more, but in no event shall
the number of directors exceed 25.
Section 2.3. Organization Meeting. The Secretary shall notify the directors-
elect of their election and of the time at which they are required to meet at
the main office of the Association to organize the new board and elect and
appoint officers of the Association for the succeeding year. Such meeting shall
be held on the day of the election or as soon thereafter as practicable, and, in
any event, within 30 days thereof. If, at the time fixed for such meeting,
there shall not be a quorum, the directors present may adjourn the meeting, from
time to time, until a quorum is obtained.
Section 2.4. Regular Meetings. The time and location of regular meetings of
the board shall be set by the board. Such meetings may be held without notice.
Any business may be transacted at any regular meeting. The board may adopt any
procedures for the notice and conduct of any meetings as are not prohibited by
law.
Section 2.5. Special Meetings. Special meetings of the board may be called at
the request of the Chairperson or Co-Chairperson of the board, the President, or
three or more directors. Each member of the board shall be given notice stating
the time and place, by telegram, telephone, letter or in person, of each such
special meeting at least one day prior to such meeting. Any business may be
transacted at any special meeting.
Section 2.6. Action by the Board. Except as otherwise provided by law,
corporate action to be taken by the board shall mean such action at a meeting of
the board. Any action required or permitted to be taken by the board or any
committee of the board may be taken without a meeting if all members of the
board or the committee consent in writing to a resolution authorizing the
action. The resolution and the written consents thereto shall be filed with the
minutes of the proceedings of the board or committee. Any one or more members
of the board or any committee may participate in a meeting of the board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the
meeting to hear each other at the same time. Participation by such means shall
constitute presence in person at such meeting.
Section 2.7. Waiver of Notice. Notice of a special meeting need not be given
to any director who submits a signed waiver of notice, whether before or after
the meeting, or who attends the meeting without protesting, prior thereto or at
its commencement, the lack of notice to him or her.
Section 2.8. Quorum and Manner of Acting. Except as otherwise required by law,
the Articles of Association or these by-laws, a majority of the directors shall
constitute a quorum for the transaction of any business at any meeting of the
board and the act of a majority of the directors present and voting at a meeting
at which a quorum is present shall be the act of the board. In the absence of a
quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present and no notice of any adjourned meeting need
be given. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
Section 2.9. Vacancies. In the event a majority of the full board increases
the number of directors to a number which exceeds the number of directors last
elected by shareholders, as permitted by Section 2.2, directors may be appointed
to fill the resulting vacancies by vote of such majority of the full board. In
the event of a vacancy in the board for any other cause, a director may be
appointed to fill such vacancy by vote of a majority of the remaining directors
then in office.
Section 2.10. Removal of Directors. The vacancy created by the removal of a
director pursuant to this Section may be filled by the board in accordance with
Section 2.9 of these by-laws or by the shareholders.
ARTICLE III
Committees
Section 3.1. Executive Committee. There may be an executive committee
consisting of the Chairperson or Co-Chairperson of the board and not less than
two other directors appointed by the board annually or more often. Subject to
the limitations in Section 3.4(g) of these by-laws, the executive committee
shall have the maximum authority permitted by law.
Section 3.2. Audit Committee. There may be an audit committee composed of not
less than two directors, exclusive of any active officers, appointed by the
board annually or more often, whose duty it shall be to make an examination at
least once during each calendar year and within fifteen months of the last
examination into the affairs of the Association, or cause continuous suitable
examinations to be made, by
auditors responsible only to the board, and to report the results of any such
examinations in writing to the board from time to time. Such examinations shall
include audits of the fiduciary business of the Association as may be required
by law or regulation.
Section 3.3. Other Committees. The board may appoint, from time to time, other
committees of one or more persons, for such purposes and with such powers as the
board may determine.
Section 3.4. General.
(a) Each committee shall elect a Chairperson from among the members thereof
and shall also designate a Secretary of the committee, who shall keep a record
of its proceedings.
(b) Vacancies occurring from time to time in the membership of any committee
shall be filled by the board for the unexpired term of the member whose
departure causes such vacancy. The board may designate one or more alternate
members of any committee, who may replace any absent member or members at any
meeting of such committee.
(c) Each committee shall adopt its own rules of procedure and shall meet at
such stated times as it may, by resolution, appoint. It shall also meet
whenever called together by its Chairperson or the Chairperson of the board.
(d) No notice of regular meetings of any committee need be given. Notice of
every special meeting shall be given either by mailing such notice to each
member of such committee at his or her address, as the same appears in the
records of the Association, at least two days before the day of such meeting, or
by notifying each member on or before the day of such meeting by telephone or by
personal notice, or by leaving a written notice at his or her residence or place
of business on or before the day of such meeting. Waiver of notice in writing
of any meeting, whether prior or subsequent to such meeting, or attendance at
such meeting, shall be equivalent to notice of such meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at any
special meeting.
(e) All committees shall, with respect to all matters, be subject to the
authority and direction of the board and shall report to it when required.
(f) Unless otherwise required by law, the Articles of Association or these
by-laws, a quorum at any meeting of any committee shall be one-third of the full
membership and the act of a majority of members present and voting at a meeting
at which a quorum is present shall be the act of the committee.
(g) No committee shall have authority to take any action which is expressly
required by law or regulation to be taken at a meeting of the board or by a
specified proportion of directors.
ARTICLE IV
Officers and Employees
Section 4.1. Chairperson of the Board. The board shall appoint one of its
members to be the Chairperson of the board, or two persons to serve as Co-
Chairperson of the board to serve at its pleasure. Such person shall preside at
all meetings of the board. The Chairperson or Co-Chairpersons of the board
shall supervise the carrying out of the policies adopted or approved by the
board; shall have general executive powers, as well as the specific powers
conferred by these by-laws; and shall also have and may exercise such further
powers and duties as from time to time may be conferred upon, or assigned by the
board.
Section 4.2. President. The board may appoint one of its members to be the
President of the Association. In the absence of the Chairperson or Co-
Chairpersons, the President shall preside at any meeting of the board. The
President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice
to the office of President, or imposed by these by-laws. The President shall
also have and may exercise such further powers and duties as from time to time
may be conferred, or assigned by the board.
Section 4.3. Vice President. The board may appoint one or more Vice
Presidents. Each Vice President shall have such powers and duties as may be
assigned by the board.
Section 4.4. Secretary. The board shall appoint a Secretary, Cashier, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these by-laws; shall be custodian of the
corporate seal, records, documents and papers of the Association; shall provide
for the keeping of proper records of all transactions of the Association; shall
have and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the office of Cashier, or imposed by these by-laws;
and shall also perform such other duties as may be assigned from time to time,
by the board.
Section 4.5. Other Officers. The board may appoint one or more Assistant Vice
Presidents, one or more Trust Officers, one or more Assistant Secretaries, one
or more Assistant Cashiers, one or more Managers and Assistant Managers of
branches and such other officers and attorneys in fact as from time to time may
appear to the board to be required or desirable to transact the business of the
Association. Such officers shall respectively exercise such powers and perform
such duties as pertain to their several offices, or as may be conferred upon, or
assigned to, them by the board, the Chairperson or Co-Chairpersons of the board,
or the President. The board may authorize an officer to appoint one or more
officers or assistant officers.
Section 4.6. Resignation. An officer may resign at any time by delivering
notice to the Association. A resignation is effective when the notice is given
unless the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 5.1. Trust Committee. There shall be a Trust Committee of this
Association composed of four or more members, who shall be capable and
experienced officers or directors of the Association. The Committee is charged
with the responsibility for the investment, retention, or disposition of assets
held in accounts with respect to which the Association has investment authority;
for the review of the assets of accounts for which the Association has
investment authority promptly after the acceptance of such an account and at
least once during every calendar year thereafter to determine the advisability
of retaining or disposing of such assets; for the determination of the manner in
which proxies received for accounts for which the Association has responsibility
for the voting of proxies shall be voted; for the determination of all
substantial questions involving discretionary authority of the Association of a
non-investment nature, including, but not limited to, distribution of principal
and/or income in respect of any account; for providing advice as to the
investment, retention, or disposition of assets in investment advisory accounts
maintained by the Association; for the making of such reports as this board
shall require; and for such other responsibilities as may be assigned by this
board. The Trust Committee, in discharging its aforementioned responsibilities,
may authorize officers of the Association to exercise such powers and under such
conditions as the Committee may from time to time prescribe.
Section 5.2. Trust Investments. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship and
local law. Where such instrument does not specify the character and class of
investments to be made and does not vest in the Association a discretion in the
matter, funds held pursuant to such instrument shall be invested in investments
in which corporate fiduciaries may invest under applicable law.
Section 5.3. Trust Audit Committee. The board shall appoint a committee of at
least two directors, exclusive of any active officer of the association, which
shall, at least once during each calendar year make suitable audits of the
association's fiduciary activities or cause suitable audits to be made by
auditors responsible only to the board, and at such time shall ascertain whether
fiduciary powers have been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound fiduciary principles.
Section 5.4. Fiduciary Files. There shall be maintained by the association all
fiduciary records necessary to assure that its fiduciary responsibilities have
been properly undertaken and discharged.
ARTICLE VI
Stock and Stock Certificates
Section 6.1. Transfers. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his or her shares, succeed to all rights of the prior
holder of such shares.
The board may impose conditions upon the transfer of the stock reasonably
calculated to simplify the work of the Association with respect to stock
transfers, voting at shareholder meetings, and related matters and to protect it
against fraudulent transfers.
Section 6.2. Stock Certificates. Certificates of stock shall bear the
signature of the Chairperson or Co-Chairpersons of the board or President (which
may be engraved, printed or impressed), and shall be signed manually or by
facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the board for that purpose, to be
known as an authorized officer, and the seal of the Association shall be
engraved thereon. Each certificate shall recite on its face that the stock
represented thereby is transferable only upon the books of the Association
properly endorsed. In case any such officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
before such certificate is issued, it may be issued by the Association with the
same effect as if such officer had not ceased to be such at the time of its
issue. The corporate seal may be a facsimile, engraved or printed.
ARTICLE VII
Corporate Seal
The Chairperson, the President, the Cashier, the Secretary or any Assistant
Cashier or Assistant Secretary, or other officer thereunto designated by the
board, shall have authority to affix the corporate seal to any document
requiring such seal, and to attest the same. Such seal shall be substantially
in the following form: A circle, with the words "Chase Manhattan Bank and Trust
Company, National Association" within such circle.
[IMPRESSION OF SEAL]
ARTICLE VIII
Miscellaneous Provisions
Section 8.1. Fiscal Year. The fiscal year of the Association shall be the
calendar year.
Section 8.2. Execution of Instruments. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Association by the Chairperson or Co-Chairpersons of the board, or the
President, or any Vice Chairperson, or any Managing Director, or any Vice
President, or any Assistant Vice President, or the Chief Financial Officer, or
the Controller, or the Secretary, or the Cashier, or, if in connection with
exercise of fiduciary powers of the Association, by any of those officers or by
any Trust Officer. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the Association in such other
manner and by such other officers as the board may from time to time direct.
The provisions of this Section 8.2 are supplementary to any other provision of
these by-laws.
Section 8.3. Records. The Articles of Association, the by-laws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for that purpose. The minutes of each meeting shall be signed by the Secretary,
Cashier or other officer appointed to act as Secretary of the meeting.
Section 8.4. Corporate Governance Procedures. To the extent not inconsistent
with applicable Federal banking law, bank safety and soundness or these by-laws,
the corporate governance procedures found in the Delaware General Corporation
Law shall be followed by the Association.
ARTICLE IX
Indemnification
Section 9.1. Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or an officer of the Association or is or was serving at
the request of the Association as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Association to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Association to provide broader indemnification
rights than such law permitted the Association to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section 9.3 of these
by-laws with respect to proceedings to enforce rights to indemnification, the
Association shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the board.
Section 9.2. Right to Advancement of Expenses. The right to indemnification
conferred in Section 9.1 of these by-laws shall include the right to be paid by
the Association the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Association of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 9.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 9.1 and 9.2 of these by-laws shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
Section 9.3. Right of Indemnitee to Bring Suit. If a claim under Section 9.1
or 9.2 of these by-laws is not paid in full by the Association within sixty (60)
days after a written claim has been received by the Association except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Association to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit, or in a suit brought by the
Association to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (1) any suit brought by the indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by
the indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (2) any suit brought by the Association to recover an
advancement of expenses pursuant to the terms of an undertaking, the Association
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Association
(including the board, the Association's independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Association (including the board, the Association's independent legal counsel,
or its shareholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or brought by the
Association to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article IX or
otherwise shall be on the Association.
Section 9.4. Non-Exclusivity of Rights. The rights to indemnification and to
the advancement of expenses conferred in this Article IX shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, the Association's Articles of Association, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
Section 9.5. Insurance. The Association may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Association or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Association would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 9.6. Indemnification of Employees and Agents of the Association. The
Association may, to the extent authorized from time to time by the board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Association to the fullest extent of the provisions of this Article
IX with respect to the indemnification and advancement of expenses of directors
and officers of the Association.
ARTICLE X
By-laws
Section 10.1. Inspection. A copy of the by-laws, with all amendments, shall at
all times be kept in a convenient place at the main office of the Association,
and shall be open for inspection to all shareholders during banking hours.
Section 10.2. Amendments. The by-laws may be amended, altered or repealed, at
any regular meeting of the board by a vote of a majority of the total number of
the directors except as provided below. The Association's shareholders may
amend or repeal the by-laws even though the by-laws may be amended or repealed
by its board.
EXHIBIT 6. Consent of the Trustee.
--------------------------------------------------------------------------------
Chase Manhattan Bank and Trust Company, National Association hereby
consents, in accordance with the provisions of Section 321(b) of the Trust
Indenture Act of 1939, that reports of examinations by Federal, State,
Territorial and District of Columbia authorities may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
BY: /s/ Paula Oswald
----------------
Paula Oswald
Assistant Vice President
EXHIBIT 7. Report of Condition of the Trustee.
--------------------------------------------------------------------------------
TRUST COMPANY
CONSOLIDATED REPORT OF CONDITION OF Chase Trust Company of California
-----------------------------------
(Legal Title)
LOCATED AT San Francisco San Francisco CA 94111
------------------ --------------------- ------- -----
(City) (County) (State) (Zip)
AS OF CLOSE OF BUSINESS ON September 30, 1997 BANK NO. 1476
--------------------- ----
================================================================================
================================================================================
[Enlarge/Download Table]
ASSETS DOLLAR AMOUNT IN THOUSANDS
1. Cash and due from banks 13,026
2. U.S. Treasury securities 9,894
3. Obligations of other U.S. Government agencies and corporations
4. Obligations of States and political subdivisions
5. Other securities (including $___________________________ corporate stock
(a) Loans
(b) Less: Reserve for possible loan losses
(c) Loans (Net) 0
7. Bank Premises, furniture and fixtures and other assets representing bank
premises (including $ -0- capital leases) 83
_____________________________________
8. Real estate owned other than bank premises
9. Investments in subsidiaries not consolidated
10. Other assets (complete schedule on reverse) (including
$___________________ intangibles) 765
11. TOTAL ASSETS 23,768
LIABILITIES
12. Liabilities For borrowed money
13. Mortgage indebtedness (including $___________________ capital leases)
14. Other liabilities (complete on schedule on reverse 3,482
15. TOTAL LIABILITIES 3,482
======
16. Capital notes and debentures
SHAREHOLDERS EQUITY
17. Preferred stock--
(Number shares outstanding ________________________________) Amount $
18. Common stock-- 10
(Number shares authorized 100 ) Amount $ 100
_________________________________
(Number shares outstanding 100 ) Amount $ 100
_________________________________
19. Surplus Amount $ 9,990
20. TOTAL CONTRIBUTED CAPITAL 10,000
21. Retained earnings and other capital reserves 10,286
22. TOTAL SHAREHOLDERS EQUITY 20,286
23. TOTAL LIABILITIES AND CAPITAL ACCOUNTS 23,768
======
MEMORANDA
1. Assets deposited with State Treasurer to qualify for exercise of fiduciary
powers (market value) 628
--------------------------------------------------------------------------------
The undersigned, Francis J. Farrell, VP & Manager and
--------------------------------
(Name and Title)
C. Scott Boone, Senior Vice President
-------------------------------------
(Name and Title)
of the above named trust company, each declares, for himself alone and not for
the other: I have a personal knowledge of the matters contained in this report
(including the reverse side hereof), and I believe that each statement in said
report is true. Each of the undersigned, for himself alone and not for the
other, certifies under penalty of perjury that the foregoing is true and
correct.
Executed on 10/21/97 , at San Francisco, California
-------- -------------
(Date) (City)
s/Francis J. Farrell s/C. Scott Boone
-------------------- ----------------
(Signature) (Signature)
SCHEDULE OF OTHER ASSETS
[Download Table]
Accounts Receivable $266
Permanent Payroll Advance 3
Severance payout to be Reimbursed 111
Deferred Taxes 385
Total (same as Item 10) $765
SCHEDULE OF OTHER LIABILITIES
[Download Table]
Accrued Income Taxes $2,102
Accounts Payable 26
Retirement Benefits 913
Accrued Employee Benefits 79
All Other Liabilities 362
------
Total (same as Item 14) $3,482
Dates Referenced Herein and Documents Incorporated by Reference
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