As Filed With The Securities And Exchange Commission On January 12, 2009
Registration No. 333-147694
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 2 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WILMINGTON TRUST
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WILMINGTON TRUST
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CORPORATION
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CAPITAL A
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(Exact Name of Registrant as Specified in Its Charter)
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(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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Delaware
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(State or Other Jurisdiction of
Incorporation or Organization)
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(State or Other Jurisdiction of
Incorporation or Organization)
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51-0328154
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26-6675375
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(I.R.S. Employer Identification No.)
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(I.R.S. Employer Identification No.)
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Wilmington Trust Capital A
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Wilmington Trust Corporation
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c/o Wilmington Trust Corporation
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Rodney Square North
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Rodney Square North
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1100 North Market Street 19890
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1100 North Market Street 19890
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(302) 651-1000
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(302) 651-1000
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(Address, Including Zip Code, and Telephone Number,
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(Address, Including Zip Code, and Telephone Number,
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Including Area Code, of Registrants Principal Executive Offices)
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Including Area Code, of Registrants Principal Executive Offices)
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Gerard A. Chamberlain, Esquire
Wilmington Trust Corporation
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(302) 651-1268
(Name And Address, Including Zip Code, And Telephone Number, Including Area Code, Of Agent For Service Of
Process)
Copies To:
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Richard F. Langan, Jr., Esquire
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Roxane F. Reardon, Esquire
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Nixon Peabody LLP
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Simpson Thacher & Bartlett LLP
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437 Madison Avenue
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425 Lexington Avenue
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New York, New York 10022
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New York, New York, 10017
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(212) 940-3000
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(212) 455-2000
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Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this Post-Effective Amendment No. 2 to the Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box.
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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.
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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:
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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.
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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.
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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.
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company.
See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller Reporting Company
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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
(1)(2)
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per unit
(1)(2)
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offering price
(1)(2)
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fee
(5)
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Common Stock, $1.00 Par Value Per Share
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Preferred Stock Purchase Rights (3)
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Debt Securities
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Junior Subordinated Debentures
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Preferred Stock
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Depositary Shares
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Purchase Contracts
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Units
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Warrants
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Rights
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Wilmington Trust Corporation Guarantees of Trust
Preferred Securities of Wilmington Trust Capital
A (4)
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Trust Preferred Securities of Wilmington Trust
Capital A
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(1)
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Not applicable pursuant to Form S-3 General Instruction II(E). Also see footnote
(5) 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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Each share of common stock includes a preferred stock purchase right as described
under Description Of Common Stock.
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(4)
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No separate consideration will be received for the Guarantees and, pursuant to Rule
457(n) under the Securities Act of 1933, no separate fee is payable in respect thereof.
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(5)
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In accordance with Rule 456(b) and Rule 457(r), the registrants are deferring
payment of the entire registration fee.
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Explanatory Note
This Post-Effective Amendment No. 2 to the Registration Statement on Form S-3 of Wilmington Trust
Corporation (File No. 333-147694) is being filed for the purpose of (i) adding Wilmington Trust
Capital A, a statutory trust formed under the laws of the State of Delaware (the Trust), as an
issuer and co-registrant to the Registration Statement hereunder, (ii) adding additional classes of
securities to the Registration Statement as described in the accompanying prospectus pursuant to
Rule 413, (iii) updating the information in Part II of the Registration Statement with respect to
the addition of the Trust and the additional classes of securities referenced herein, and (iv)
filing additional exhibits to the Registration Statement. This Post-Effective Amendment No. 2
shall become effective immediately upon filing with the Securities and Exchange Commission.
PROSPECTUS
WILMINGTON TRUST CORPORATION
COMMON STOCK
DEBT SECURITIES
JUNIOR SUBORDINATED DEBENTURES
PREFERRED STOCK
DEPOSITARY SHARES
PURCHASE CONTRACTS
UNITS
WARRANTS
RIGHTS
WILMINGTON TRUST CAPITAL A
TRUST PREFERRED SECURITIES
fully and unconditionally guaranteed as described herein by
WILMINGTON TRUST CORPORATION
Wilmington Trust Corporation and Wilmington Trust Capital A may offer, issue, and sell any of the
types of securities listed above or any combination thereof from time to time.
This prospectus provides you with a general description of certain of these securities. The
specific terms of any securities to be offered, and the specific manner in which they may be
offered, will be described in a supplement to this prospectus. Any such prospectus supplement also
may add to or update information contained in this prospectus. This prospectus may not be used to
offer to sell any securities unless accompanied by a prospectus supplement. You should read this
prospectus and any accompanying prospectus supplement carefully before you make your investment
decision.
The Company and the Trust or selling securityholders may offer and sell the securities directly to you, through agents, or
through underwriters or dealers. Any agents, underwriters, or dealers used to sell the securities
will be named and their compensation will be described in a prospectus supplement. The net proceeds
we expect to receive from those sales will be described in the prospectus supplement.
The Companys common stock is listed on the New York Stock Exchange (the NYSE) under the trading
symbol WL. Each prospectus supplement will indicate whether the securities offered thereby will
be listed on any securities exchange.
These securities will not be savings accounts, deposits, or other obligations of any bank or
non-bank subsidiary of ours and are not insured by the Federal Deposit Insurance Corporation, the
Board of Governors of the Federal Reserve System, or any other governmental agency.
Investing in these securities involves risks, including the risks described in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2007, filed with the Securities and Exchange
Commission (the SEC) on February 29, 2008, the risk factors described under the caption Risk
Factors in this prospectus or in any applicable prospectus supplement, and/or risk factors, if any, set forth in our
other filings with the SEC pursuant to Sections
13(a)
,
13(c)
, 14, or
15(d)
of the Securities Exchange Act of 1934, as amended (the
Exchange Act), as referenced on page 2 of this prospectus.
Neither the SEC 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 January 12, 2009
TABLE OF CONTENTS
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In this prospectus, we, us, our, Wilmington Trust, and the Company refer to Wilmington
Trust Corporation and its subsidiaries, and Trust refers to Wilmington Trust Capital A, unless
specified otherwise or unless the context requires otherwise.
-i-
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Wilmington Trust and the Trust filed with
the SEC using a shelf registration process. Under this shelf process, Wilmington Trust and the
Trust may offer and 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
certain 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 may include a discussion
of any risk factors or other special considerations that apply to those securities. The prospectus
supplement also may add to, update, or change information contained in this prospectus and,
accordingly, to the extent inconsistent, the information in this prospectus will be superseded by
the information in that prospectus supplement. You should read this prospectus, the applicable
prospectus supplement, and the additional information incorporated by reference into this
prospectus described below under Where You Can Find More Information before making an investment
in our securities.
The prospectus supplement will describe: the terms of the securities offered, any initial public
offering price, the price paid to us for the securities, the net proceeds to us, the manner of
distribution, a description of the securities, if applicable, and any underwriting compensation and
the other specific material terms related to the offering of the securities. The prospectus
supplement also may contain information about material U.S. federal income tax considerations
relating to the securities where applicable. For more detail on the terms of the securities, you
should read the exhibits filed with or incorporated by reference into our registration statement of
which this prospectus forms a part.
This prospectus contains summaries of certain provisions contained in some of the documents
described herein, but reference is made to the actual documents for complete information. All of
the summaries are qualified in their entirety by the actual documents. Copies of the documents
referred to herein have been filed with the SEC, or will be filed or incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain
copies of those documents as described below under the caption Where You Can Find More
Information.
You should rely only on the information contained or incorporated by reference in this prospectus
and any prospectus supplement. Neither we have nor the Trust have authorized anyone else to
provide you with different information. If anyone provides you with different information, you
should not rely on it. These securities are not being offered in any jurisdiction in which the
offer or sale is not permitted. You should assume that the information appearing in this
prospectus and any prospectus supplement, or any documents incorporated by reference herein or
therein, is accurate only as of the date on the front cover of the applicable document. Our
business, financial condition, results of operations, and prospects may have changed since that
date.
RISK FACTORS
An investment in our securities is subject to risk. Our business, financial condition, and results
of operations could be materially adversely affected by any of these risks. The trading price of
our securities could decline due to any of these risks, and you may lose all or part of your
investment. This prospectus supplement, the accompanying prospectus, and the documents
incorporated by reference herein also contain forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those anticipated in these
forward-looking statements as a result of certain factors, including the risks we face described
below and elsewhere in this prospectus supplement, the accompanying prospectus, and the documents
incorporated by reference herein.
Before you decide to invest in our securities, you should consider the risk factors below as well
as the risk factors described in our Annual Report on
Form 10-K
for the fiscal year ended December
31, 2007 and any risk factors set forth in our other filings with the SEC pursuant to Sections
1
3(a)
,
13(c)
, or
15(d)
of the Exchange Act before making an investment decision. Please refer to
Where You Can Find More Information in this prospectus for discussions of these other filings.
-1-
We are subject to certain principal interest rate and credit risks associated with commercial and
consumer lending.
A certain degree of credit risk is inherent in the various lending activities of our two depository
institutions, Wilmington Trust Company (WTC) and Wilmington Trust FSB (together with WTC, the
Banks). The Banks offer fixed and adjustable interest rates on loans, with terms of up to 30
years. Adjustable rate mortgage (ARM) loans increase the responsiveness of the Banks loan
portfolios to changes in market interest rates. However, ARM loans generally carry lower initial
interest rates than fixed-rate loans. Accordingly, they may be less profitable than fixed-rate
loans during the initial interest rate period. In addition, since they are more responsive to
changes in market interest rates than fixed-rate loans, ARM loans can increase the possibility of
delinquencies in periods of high interest rates.
The Banks also originate loans secured by mortgages on commercial real estate and multi-family
residential real estate. At September 30, 2008, the Banks commercial real estate portfolio
totaled $1.8 billion, or 18.8% of total loans. Since these loans usually are larger than
one-to-four family residential mortgage loans, they generally involve greater risks than
one-to-four family residential mortgage loans. In addition, since customers ability to repay
those loans often is dependent on operating and managing those properties successfully, adverse
conditions in the real estate market or the economy generally can impact repayment of these loans
more severely than loans secured by one-to-four family residential properties. Moreover, the
commercial real estate business is subject to downturns, overbuilding, and local economic
conditions.
The Banks also make construction loans for residences and commercial buildings, as well as on
unimproved property. At September 30, 2008, the Banks commercial real estate-construction loan
portfolio totaled $1.9 billion, or 19.9% of total loans. While these loans receive higher yields
than those obtainable on permanent residential mortgage loans, the higher yields correspond to the
higher risks associated with construction lending. Those include risks associated with the type of
property securing the loan, including that the properties are not currently generating income.
Accordingly, consistent with industry practice, the Banks sometimes fund the interest on a
construction loan by including the interest as part of the total loan, further increasing the
indebtedness secured by the property. Moreover, construction lending often involves disbursing
substantial funds with repayment dependent largely on the success of the ultimate project instead
of the borrowers or guarantors ability to repay. Again, adverse conditions in the real estate
market or the economy generally can impact repayment of construction loans more severely than loans
secured by one-to-four family residential properties.
At September 30, 2008, the Banks consumer loan portfolio totaled $1.8 billion, or 18.6% of total
loans. Consumer loans potentially have a greater risk than residential mortgage loans,
particularly in the case of loans that are unsecured. Repayment of consumer loans is dependent on
the borrowers ongoing financial stability, and thus is more likely to be affected adversely by job
loss, illness, or personal bankruptcy. Furthermore, the application of various federal and state
laws, including federal and state bankruptcy and insolvency laws, may limit the amount that can be
recovered on those loans. During periods of economic slowdown, we may experience higher levels of
past due amounts, which could result in higher levels of allowances for loan losses. We also face
the risk that, to the extent a loan is collateralized, collateral for a defaulted loan may not
provide an adequate source of repayment of the outstanding loan balance.
In the event of worsening economic conditions or deterioration in commercial and real estate
markets, such as the current conditions, we would expect and have experienced increased
non-performing assets, credit losses, and provisions for loan losses.
Please refer to our Current Report on Form 8-K filed with the SEC on
January 7, 2009 and Commercial
Lending, Construction Lending, Consumer Lending, and Residential Mortgage Lending in our
Managements Discussion and Analysis in our Annual Report to Shareholders for 2007 for discussions
of our credit risk.
Our investment securities portfolio is subject to credit risk, market risk, and illiquidity.
Our investment securities portfolio has risks beyond our control that can significantly influence
the fair value of the securities it contains. These factors include, but are not limited to,
rating agency downgrades of the securities, defaults of the issuers of the securities, lack of
market pricing of the securities, and continued instability in the credit markets. The current
lack of market activity and the illiquidity of the securities have, in certain circumstances,
required us to base our fair market valuation on unobservable inputs. Any change in current
accounting principles or interpretations of these principles could impact our assessment of fair
value and thus our determination of other-than-temporary impairment. In November 2008, Moodys
Investor Services downgraded the ratings of a number of securities held in our investment
portfolio, which increases the potential for these securities to
become
-2-
other-than-temporarily impaired.
Such a determination would require the Company to record a non-cash, other-than-temporary
impairment charge in an amount that reflects any decrease in valuations.
We are subject to liquidity risks.
Market conditions, including a diminished ability to access the capital markets or other events,
could negatively affect the level or cost of liquidity available to us, which would affect our
ongoing ability to accommodate liability maturities and deposit withdrawals, meet contractual
obligations, and fund asset growth and new business transactions at a reasonable cost, in a timely
manner, and without adverse consequences. Core deposits are our primary source of funding. At
September 30, 2008, our total loans relative to core deposits was 173%. Because our consumer
banking and core deposit-gathering activities remain focused in Delaware, while our commercial
banking activities have expanded throughout the mid-Atlantic region, we are dependent on non-core
funding sources to augment our core deposits. A significant decrease in our core deposits, an
inability to obtain alternative funding to our core deposits, or a substantial, unexpected, or
prolonged change in the level or cost of liquidity could have a negative effect on our business and
financial condition. Please refer to Liquidity and Funding in our Managements Discussion and
Analysis in our Annual Report to Shareholders for 2007 and in our Form 10-Q for the third quarter
of 2008 for a discussion of our liquidity risk.
We and/or the holders of our securities could be adversely affected by unfavorable rating actions
from rating agencies.
Our ability to access the capital markets is important to our overall funding profile. This access
is affected by the ratings assigned by rating agencies to us, certain of our affiliates, and
particular classes of securities that we and our affiliates issue. The interest rates that we pay
on our securities are also influenced by, among other things, the credit ratings that we, our
affiliates, and/or our securities receive from recognized rating agencies. On September 3, 2008,
Standard & Poors confirmed its rating of us and WTC, but lowered its outlook
for us to negative from stable because of concerns over our real estate construction portfolio and
declining capital ratios. Standard & Poors reaffirmed these actions on December 30, 2008. On
December 8, 2008, Moodys Investors Service issued a press release that indicated that it had
placed our ratings and those of WTC on review for possible downgrade. The rating agency said that
its review will focus on our ability to generate tangible capital in
the near- to intermediate-term,
reliance on brokered CDs, loan loss provisioning needs, and capital management.
A sustained weakness or weakening in business and economic conditions generally or specifically in
the principal markets in which we do business could affect our business and operating results
adversely
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Our business could be affected adversely to the extent that weaknesses in business and economic
conditions have direct or indirect impacts on us or on our customers and counterparties. These
conditions could lead, for example, to one or more of the following:
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a decrease in the demand for loans and other products and services we offer;
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a decrease in customer savings generally and in the demand for savings and investment
products we offer; or
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an increase in the number of customers and counterparties who become delinquent, file
for protection under bankruptcy laws, or default on their loans and other obligations to
us. An increase in the number of delinquencies, bankruptcies, or defaults could result in
a higher level of nonperforming assets, net charge-offs, and provisions for loan losses.
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Although
many of our businesses are national in scope, our retail and
commercial banking business is concentrated
in Delaware, Pennsylvania, Maryland, and New Jersey, and thus that business is particularly vulnerable to adverse changes
in economic conditions in these regions.
-3-
There can be no assurance that recently enacted legislation will help stabilize the U.S. financial
system.
The Emergency Economic Stabilization Act of 2008, or the EESA, was recently enacted in response to
the financial crises affecting the banking system and financial markets and the questionable
ability of certain investment banks and other financial institutions to continue as a going
concern. Pursuant to EESA, the United States Department of the Treasury (the Treasury) has the
authority to, among other things, purchase up to $700 billion of mortgages, mortgage-backed
securities, and certain other financial instruments from financial institutions for the purpose of
stabilizing and providing liquidity to the U.S. financial markets. The Treasury announced a
Capital Purchase Program (the CPP) under EESA pursuant to which it has purchased and will
continue to purchase senior preferred stock in participating financial institutions. On December
12, 2008, pursuant to a Letter Agreement and a Securities Purchase Agreement (the Purchase
Agreement) with the Treasury, we issued to the Treasury $330,000,000 aggregate
liquidation amount of our Fixed Rate Cumulative Perpetual Preferred Stock, Series A, par value
$1.00, and a warrant for the purchase of up to 1,856,714 shares of our common stock.
There can be no assurance, however, as to the actual impact that EESA, including the CPP and the
Treasurys Troubled Asset Repurchase Program (TARP), will have on the financial markets or on us.
The failure of these programs to help stabilize the financial markets and a continuation or
worsening of current financial market conditions could materially and adversely affect our
business, financial condition, results of operations, access to credit, or the trading price of our
securities.
The failure of other financial institutions could adversely affect us.
Our ability to engage in funding transactions could be adversely affected by the actions and
failure of other financial institutions. Financial institutions are interrelated as a result of
trading, clearing, counterparty, and other relationships. We have exposure to many different
industries and counterparties, and routinely execute transactions with counterparts in the
financial services industry, including brokers and dealers, commercial banks, investment banks,
insurers, mutual and hedge funds, and other institutional clients. As a result, defaults by, or
even questions or rumors about, one or more financial services institutions, or the financial
services industry generally, have led to market-wide liquidity problems and could lead to losses or
defaults by us or other institutions. Many of these transactions expose us to credit risk in the
event of a default by our counterparty or client. In addition, our credit risk may be exacerbated
when collateral we hold cannot be relied upon or is liquidated at prices not sufficient to recover
the full amount of our exposure. Any such losses could materially and adversely affect our results
of operations.
Current levels of market volatility are unprecedented.
The capital and credit markets have been experiencing volatility and disruption for over a year.
Recently, this volatility and disruption have reached unprecedented levels, and in many cases have
produced downward pressure on stock prices and credit availability for certain issuers without
regard to the underlying financial strength of those issuers. If current levels of market
disruption and volatility continue or worsen, there can be no assurance that those conditions will
not have a material adverse effect on our business, financial condition, and results of operations.
Our financial condition and results of operations could be adversely affected by previous or future
acquisitions
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We have acquired companies and business units in the past, and may from time make additional
acquisitions in the future. The acquisition of other entities or business units presents many
risks including, but not limited to, unknown or contingent liabilities not fully discovered in the
due diligence process, the inability to integrate personnel and operating systems efficiently and
cost-effectively, loss of customers, and the continuing profitability of the acquired entity or
business unit. A portion of the purchase price for our acquisitions is normally allocated to
goodwill. If there is deterioration in the value of the acquired entity or business unit, we may
be required to record a goodwill impairment that could affect our net income and stockholders
equity adversely.
We face increasing competition for deposits, loans, and assets under management.
We compete for deposits, loans, and assets under management. Many of our competitors are larger and
have greater financial resources and larger lending limits than us. These disparities have been
accelerated with increasing consolidation in the financial services industry. Savings banks,
savings and loan associations, and commercial banks
-4-
located in the Banks principal market areas
historically have provided the most direct competition for deposits.
Dealers in government
securities, deposit brokers, and credit card, direct, and internet-based financial institutions
outside of the Banks principal market areas also provide competition for deposits. Savings banks,
savings and loan associations, commercial banks, mortgage banking companies, insurance companies,
and other institutional lenders provide the principal competition for loans. This competition can
increase the rates the Banks pay to attract deposits and reduce the interest rates they can charge
on loans, and impact the Banks ability to retain existing customers and attract new customers.
Banks, trust companies, investment advisers, mutual fund companies, multi-family offices, and
insurance companies provide our principal competition for trust and asset management business.
Our ability to compete for business depends in part on our ability to develop and market new and
innovative products and services, and to adopt or develop new technologies that differentiate our
products and services or provide cost efficiencies. Rapid technological change in the financial
services industry, together with competitive pressures, require us to make ongoing investments to
bring new products and services to market in a timely fashion and at competitive prices. If we
fail to develop and market new and innovative products and services, or fail to adopt or develop
new technologies, our business could be affected negatively.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports and other information with the SEC. These reports
and other information can be read and copied upon payment of a duplication fee at the SECs Public
Reference Room located at Station Place, 100 F Street, N.E., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room in
Washington D.C. and other locations. The SEC maintains a website (http://www.sec.gov) that
contains reports and other information regarding companies that file with the SEC electronically,
including us. These reports and other information also can be read at the offices of the NYSE, 20
Broad Street, New York, New York 10005 or through our website (http://www.wilmingtontrust.com).
Information on our website is not incorporated into this prospectus or our other SEC filings and is
not a part of this prospectus or those filings.
The SEC allows us to incorporate by reference the information we file with the SEC. This permits
us to disclose important information to you by referencing those filed documents. Any statement
contained or incorporated by reference into this prospectus will be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement contained herein, or in
any document filed subsequently that also is incorporated by reference herein, modifies or
supersedes that earlier statement. Any statement so modified or superseded is not deemed to
constitute a part of this prospectus, except as so modified or superseded.
The following documents have been filed by Wilmington Trust (File No. 001-14659) with the SEC and
are incorporated by reference into this prospectus (excluding any portions of those documents that
have been furnished but not filed for purposes of the Exchange Act):
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Annual Report on Form 10-K for the fiscal year ended December 31, 2007 (which we
filed with the SEC on February 29, 2008);
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The sections of our Annual Report to Shareholders for 2007, which we filed as
Exhibit 13 to our Annual Report on Form 10-K for the fiscal year ended December 31,
2007 (which we filed with the SEC on February 29, 2008), entitled Managements
Discussion and Analysis of Financial Condition and Results of Operations, Audited
Consolidated Financial Statements, Notes to Consolidated Financial Statements,
Reports of Independent Registered Public Accounting Firm, and Stockholder
Information, to the extent required to be disclosed on Form 10-K and incorporated by
reference into our Annual Report on Form 10-K for the fiscal year ended December 31,
2007;
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The information required by Part III of Form 10-K contained in our Definitive Proxy
Statement on Schedule 14A (which we filed with the SEC on February 29, 2008) on pages
1, 3-6, and 9-30 thereof;
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Quarterly Reports on Form 10-Q for the quarter ended March 31, 2008 (which we filed
with the SEC on May 12, 2008), for the quarter ended June 30, 2008 (which we filed
with the SEC on August 11, 2008),
and for the quarter ended September 30, 2008 (which we filed with the SEC on November 10, 2008);
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Forms 8-K we filed with the SEC on January 31, 2008, February 19, 2008, March 25,
2008, April 1, 2008, April 18, 2008, June 24, 2008, June 25, 2008, July 18, 2008,
September 11, 2008, September 22, 2008, October 17, 2008, October 20, 2008, November
17, 2008, December 16, 2008, and January 7, 2009; and
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The description of our preferred stock purchase rights contained in our Registration
Statement on Form 8-A/A (which we filed with the SEC on December 22, 2004), File No.
001-14695.
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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.
No separate financial statements of the Trust are included in this prospectus. Wilmington Trust and
the Trust do not consider that such financial statements would be material to holders of trust
preferred securities because the Trust is a special purpose entity, has no operating history or
independent operations and is not engaged in, and does not propose to engage in, any activity other
than holding as trust assets the corresponding junior subordinated debentures of Wilmington Trust
and issuing the trust securities. Furthermore, taken together, Wilmington Trusts obligations under
the junior subordinated debentures, the Junior Subordinated Indenture pursuant to which the junior
subordinated debentures would be issued, the related trust agreement, and the related guarantee
provide, in the aggregate, a full, irrevocable, and unconditional guarantee of payments of
distributions and other amounts due on the related trust preferred securities of the Trust. For a
more detailed discussion, see The Trust, Description of Junior Subordinated
DebenturesCorresponding Junior Subordinated Debentures, Description of Trust Preferred
Securities, and Description of Guarantee. In addition, we do not expect that the Trust will be
filing reports with the SEC under the Exchange Act.
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 Section 27A of the Securities Act of 1933, as amended (the
Securities Act), and Section 21B of the Exchange Act. 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) fluctuations in the equity and fixed-income markets, (4)
significant changes in banking laws or regulations, (5) increased competition in our markets, (6)
higher-than-expected credit losses, (7) the
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effect of acquisitions and integration of acquired
businesses, (8) unanticipated changes in regulatory, judicial, or legislative tax treatment of
business transactions, (9) changes in accounting policies, procedures, or guidelines that may be
required by the Financial Accounting Standards Board or regulatory agencies, (10) economic
uncertainty created by increasing unrest in other parts of the world, and (11) new litigation or
developments in existing litigation. Weakness or a decline in capital or consumer spending could
affect our performance adversely in a number of ways, including decreased demand for our products
and services and increased credit losses. Likewise, changes in deposit levels or changes in
deposit interest rates, among other things, could slow our growth or put pressure on current
deposit levels. Important factors that could cause actual results to differ materially from the
forward-looking statements include, among others, the risks described in our Annual Report on
Form 10-K for the fiscal year ended December 31, 2007, the risks described under the caption Risk
Factors in any applicable prospectus supplement, and any risk set forth in our other filings with
the SEC that are incorporated by reference into this prospectus or any applicable prospectus
supplement. You should consider those factors carefully before investing in our securities. Those
forward-looking statements speak only as of the date they are made and, except for our ongoing
obligations under the U.S. federal securities laws, we undertake no obligation to update any
forward-looking statements publicly, whether as a result of new information, future events, or
otherwise.
-7-
THE TRUST
The Trust is a statutory trust formed under Delaware law pursuant to a trust agreement signed by
Wilmington Trust, as sponsor of the Trust, the Delaware Trustee, and the Administrators (each as
defined below), and the filing of a certificate of trust with the Delaware Secretary of State. The
trust agreement of the Trust will be amended and restated in its entirety (as so amended and
restated, the Trust Agreement) prior to the issuance of trust preferred securities by the Trust.
The Trust Agreement will be qualified as an indenture under the Trust Indenture Act of 1939, as
amended (the Trust Indenture Act).
The Trust exists for the exclusive purposes of:
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issuing the trust preferred securities and common securities
representing undivided beneficial interests in the assets of the
Trust;
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investing the gross proceeds of the trust preferred securities and the
common securities (together, the trust securities) in junior
subordinated debentures issued by Wilmington Trust; and
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engaging in only those activities necessary or incidental thereto.
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All of the common securities will be directly or indirectly owned by Wilmington Trust. The common
securities of the Trust will rank equally, and payments will be made pro rata, with the trust
preferred securities, except that upon an event of default under the Trust Agreement resulting from
an event of default under the Junior Subordinated Indenture, the rights of the holders of the
common securities to payment in respect of distributions and payments upon liquidation, redemption,
and otherwise will be subordinated to the rights of the holders of the trust preferred securities.
The Trusts business and affairs will be conducted by its trustees and administrators, each
appointed by Wilmington Trust as holder of the common securities. The trustees of the Trust will be
Wells Fargo Bank, National Association, a national banking association, as the property trustee
(the Property Trustee), and Wells Fargo Delaware Trust Company, as the Delaware trustee (the
Delaware Trustee). In addition, two individuals who are employees or officers of, or affiliated
with, Wilmington Trust will serve as administrators of the Trust. The Property Trustee will act as
sole trustee under the Trust Agreement for purposes of compliance with the Trust Indenture Act.
Wells Fargo Bank, National Association also will act as trustee under the guarantee of the trust
preferred securities and the Junior Subordinated Indenture. See Description of Guarantee and
Description of Junior Subordinated Debentures.
The holder of the common securities of the Trust, or the holders of a majority in liquidation
amount of the Trusts trust preferred securities if an event of default under the Trust Agreement
has occurred and is continuing, will be entitled to appoint, remove, or replace the Property
Trustee and/or the Delaware Trustee. The right to vote to appoint, remove, or replace the
Administrators is vested exclusively in the holders of the common securities.
Wilmington Trust will pay all fees and expenses related to the trust and the offering of trust
securities.
The principal executive office of the trust is c/o Wilmington Trust Corporation, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890, telephone number (302) 651-1000.
-8-
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERENCE DIVIDENDS
Our ratio of earnings to fixed charges and preference dividends for each of the periods indicated
is as follows:
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Nine Months
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Ended
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Year Ended December 31,
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September30, 2008
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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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Ratio of earnings to fixed charges
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Excluding interest on deposits
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2.2
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3.8
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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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Including interest on deposits
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1.4
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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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These ratios pertain to 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. As of September 30, 2008, we had no
shares of preferred stock outstanding and did not pay dividends on preferred stock in any of the
periods presented.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we intend to use the net
proceeds of any securities sold for general corporate purposes.
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DESCRIPTION OF COMMON STOCK
The following description of common stock is a summary that is qualified in its entirety by the
more detailed information included elsewhere or incorporated by reference into this prospectus or
the accompanying prospectus supplement. Because this is a summary, it may not contain all of the
information that is important to you. For more detailed information, please see our Restated
Certificate of Incorporation and Bylaws, which have been filed in their entirety with the SEC.
Please refer to the section entitled Where You Can Find More Information, starting on page 1
above.
General
We are authorized to issue 150,000,000 shares of our common stock, par value $1.00 per share, and
1,000,000 shares of our preferred stock, par value $1.00 per share. As of December 31, 2008,
69,115,857 shares of our common stock were issued and outstanding and 4,131,396 shares of our
common stock were issuable upon the exercise of outstanding stock options and warrants.
The rights of holders of our common stock are governed by Delawares General Corporation Law and
banking law, our Certificate of Incorporation and Bylaws, and the applicable regulations of the
Federal Reserve Board. Each share of our common stock has the same relative rights as, and is
identical in all respects to, each other share of our common stock. Our shares of common stock are
entitled to one vote per share, and are traded on the New York Stock Exchange under the symbol
WL.
Voting
Until shares of our preferred stock are issued, if ever, the holders of our common stock will
possess all rights, including exclusive voting rights, pertaining to our capital stock, except as
otherwise required by law. Shares of our common stock do not have cumulative voting rights.
Stockholders may not approve any action by written consent without a meeting of the stockholders.
Dividend Rights
The holders of outstanding shares of our common stock are entitled to receive dividends when, as,
and if declared by our Board of Directors, in their discretion, out of funds legally available
therefor.
Liquidation Rights
In the event of any liquidation, dissolution, or winding up, the holders of shares of our common
stock will be entitled to receive all of our remaining assets, after payment of all of our debts
and liabilities (including $250 million aggregate principal amount of our outstanding 4.875%
Subordinated Notes due 2013 and $200 million aggregate principal amount of our outstanding 8.50%
Subordinated Notes due 2018) and subject to the rights, if any, of holders of shares of our
preferred stock, if any.
Preemptive Rights; Redemption
Our stockholders are not entitled to preemptive rights with respect to any shares of capital stock
we issue. Our common stock is not subject to call or redemption.
Board of Directors; Classification of the Board
Our Certificate of Incorporation provides that our Board (other than directors elected by holders
of any series of our preferred stock) consists of not less than one nor more than 25 directors,
with the number of directors fixed from time to time by resolution passed by our Board, and that
our directors (other than directors elected by the holders of any series of our preferred stock)
are divided into three classes, as nearly equal in number as possible, with each class of directors
serving for successive three-year terms so that each year the term of only one class of directors
expires.
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Limitation of Liability of Directors
Our directors are not personally liable to us or our stockholders for monetary damages for breach
of fiduciary duty, except to the extent that such exemption from liability is not permitted by
Delaware law. Delaware law prohibits an exemption or limitation of a directors liability in cases
involving a directors breach of the duty of loyalty, acts or omissions not in good faith,
intentional misconduct, knowing violations of law, improper personal benefits, or improper
dividends or distributions. We will indemnify and hold harmless, to the fullest extent permitted
by applicable law, any person who was or is made or is threatened to be made a party or is
otherwise involved in any action, suit, or proceeding by reason of the fact that he or she is or
was our director or is or was serving at our request as a director of another entity.
Certain Provisions Affecting Changes in Control
Our Certificate of Incorporation provides that, in addition to any other vote required by law, a
business combination requires the affirmative vote of the holders of at least 75% of the combined
voting power of the then outstanding shares of our voting stock, voting together as a single class,
unless there are one or more continuing directors then in office and that business combination has
been approved by our Board (including the affirmative vote of at least a majority of the continuing
directors then in office), in which case that business combination only requires such vote as is
required by law or by other provisions of our Certificate. Certain transactions encompassed by the
term business combination, such as certain issuances of stock or certain sales of assets, would
not require a vote of stockholders under Delawares General Corporation Law, while certain other
transactions, such as a reclassification of capital stock, would require an affirmative vote of a
majority of the outstanding shares of capital stock entitled to vote thereon. This provision could
have the effect of giving a minority of our stockholders the ability to preclude the consummation
of certain business combinations when a majority of our stockholders believe that such a business
combination is desirable or beneficial.
For purposes of this provision, a business combination includes:
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any merger or consolidation of us or any of our subsidiaries with or into (a) any
related person or (b) any other corporation (whether or not itself a related person) that,
after that merger or consolidation, would be an affiliate or associate of a related person;
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any sale, lease, exchange, mortgage, pledge, transfer, or other disposition (in one
transaction or a series of related transactions) to or with any related person of any
assets of us or any subsidiary of ours, having an aggregate fair market value of $1,000,000
or more;
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the issuance or transfer by us or any of our subsidiaries (in one or more related
transactions, and other than by way of pro rata distribution to all stockholders or a
reclassification, dividend, or subdivision of such securities, and other than in connection
with the exercise or conversion of securities exercisable for or convertible into our
securities, or securities of one of our subsidiaries, that have been distributed pro rata
to stockholders) of any of our securities or the securities of any of our subsidiaries to
any related person in exchange for cash, securities, or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or more;
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the adoption of any plan or proposal proposed by or on behalf of a related person for
our liquidation or dissolution; or
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any reclassification of our securities, recapitalization of us, any merger or
consolidation of us with or into any of our subsidiaries, or any similar transaction that
has the effect, directly or indirectly, of increasing by more than one percent the
proportion of outstanding shares of any class of equity or convertible securities of us or
any of our subsidiaries that are directly or indirectly owned by any related person.
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For purposes of this provision, a related person is, other than us, any of our subsidiaries, any
employee benefit plan or stock plan of us or any of our subsidiaries, or any person or entity
organized, appointed, established, or holding voting stock for or pursuant to the terms of such
plan:
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any individual, corporation, partnership, or other entity, or any group of two or more
of the foregoing that act together or have agreed to act together and which, together with
its or their affiliates and associates, beneficially owns, directly or indirectly, in the
aggregate, 10% or more of the combined voting power of the then-outstanding shares of our
voting stock, as well as any affiliate or associate of such individual, corporation,
partnership, or other entity;
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an affiliate of us which at any time within two years prior thereto beneficially owned,
directly or indirectly, 10% or more of the combined voting power of the outstanding shares
of our voting stock; or
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an assignee of or successor to any shares of our capital stock that were at any time
within two years prior thereto beneficially owned by any related person.
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Stockholder Rights Plan
On December 16, 2004, our Board approved an amended and restated rights plan. The rights plan is
for a ten-year term and entitles registered holders of our common stock, on the conditions
summarized below, to purchase from us one one-thousandth of a share of our preferred stock at a
price of $128.00 per one one-thousandth of a share.
Under the rights plan, until the earlier of (1) 10 days after a public announcement that a person
or group of affiliated or associated persons has acquired 15% or greater of our common stock or (2)
10 business days following the commencement of, or announcement of an intention to make, a tender
offer that would result in that person or group owning 15% or greater of our common stock, in
either case an acquiring person, the rights will be evidenced by our common stock certificate,
together with a copy of the summary of rights, and will automatically trade with the common stock
and not be exercisable. Upon that date (the Distribution Date), separate certificates evidencing
the rights will be distributed to the holders of record of our common stock as of the Distribution
Date, and each right will entitle its holder to purchase participating preferred stock for an
exercise price of $128.00 per one one-thousandth of a share. The purchase price payable, and the
number of shares of preferred stock or other securities or property issuable, upon exercise of the
rights is subject to antidilution adjustments in the case of stock dividends, stock splits, the
grant of rights or warrants to subscribe for or purchase preferred stock at a price less than the
then-current market price of the preferred stock, or upon the distribution to preferred
stockholders of evidences of indebtedness or assets or of subscription rights or warrants.
Shares of preferred stock purchasable upon exercise of the rights will not be redeemable. Each
share of preferred stock will be entitled, when, as, and if declared, to a minimum preferential
quarterly dividend payment of the greater of (1) $10 per share or (2) an amount equal to 1,000
times the dividend declared per share of common stock. In the event of our liquidation,
dissolution, or winding up, the holders of the preferred stock purchasable upon exercise of the
rights will be entitled to a minimum preferential payment of the greater of (1) $1,000 per share
(plus any accrued but unpaid dividends) and (2) an amount equal to 1,000 times the payment made per
share of common stock. Each share of preferred stock will have 1,000 votes, voting together with
the common stock. In the event of any merger, consolidation, or other transaction in which
outstanding shares of common stock are converted or exchanged, each share of preferred stock will
be entitled to receive 1,000 times the amount received per share of common stock. These rights are
protected by customary antidilution provisions.
If any person or group of affiliated or associated persons becomes an acquiring person, each holder
of a right, other than rights beneficially owned by the acquiring person (which will thereupon
become void), will have the right thereafter to receive, upon exercise of a right at the
then-current exercise price of the right, that number of shares of common stock having a market
value equal to two times the exercise price of the right.
If, after a person or group of affiliated or associated persons becomes an acquiring person, we are
acquired in a merger or other business combination transaction or 50% or more of our consolidated
assets or earning power are sold, proper provisions will be made so that each holder of a right
(other than rights beneficially owned by an acquiring person, which will have become void) will
thereafter have the right to receive, upon the exercise of a right, that number of shares of common
stock of the person with whom we have engaged in the foregoing transaction (or its parent) that at
the time of that transaction has a market value of two times the exercise price of the right.
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At any time after any person or group of affiliated or associated persons becomes an acquiring
person and before the acquisition by that acquiring person of 50% or more of the outstanding shares
of our common stock, our Board may exchange the rights (other than rights owned by that acquiring
person, which will have become void), in whole or in part, for shares of common stock or preferred
stock (or a series of our preferred stock having equivalent rights, preferences, and privileges),
at an exchange ratio of one share of common stock, or a fractional share of preferred stock (or
other preferred stock), equivalent in value thereto, per right.
At any time prior to the time that any person or group of affiliated or associated persons becomes
an acquiring person, our Board may redeem the rights in whole, but not in part, at a price of $.01
per right, payable, at our option, in cash, shares of common stock, or such other form of
consideration as our Board may determine. The redemption of the rights may be made effective at
the time, on the basis, and with the conditions our Board may establish in its sole discretion.
Immediately upon any redemption of the rights, the right to exercise the rights will terminate and
the only right of the holders of the rights will be to receive the redemption price.
For so long as the rights are then redeemable, we may, except with respect to the redemption price,
amend the rights plan in any manner.
Until a right is exercised or exchanged, the holder thereof, as such, will have no rights as a
stockholder of us, including the right to vote or to receive dividends.
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DESCRIPTION OF DEBT SECURITIES
The debt securities we may issue will constitute either senior debt securities (Senior
Securities) or subordinated debt securities (Subordinated Securities). For the avoidance of
doubt, any junior subordinated debentures we issue pursuant to this prospectus will not constitute
debt securities for purposes of this discussion. The Senior Securities will be issued under an
indenture (the Senior Indenture) between us and the trustee under that indenture. The
Subordinated Securities will be issued under an Indenture (the Subordinated Indenture) between us
and the trustee under that 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 that affiliates
creditors, except to the extent that we ourselves may be a creditor with recognized claims against
that affiliate.
Reference is made to the applicable prospectus supplement for any series of debt securities for a
description of the following terms:
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the title of those debt securities;
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the limit, if any, on the aggregate principal amount or aggregate initial public
offering price of those debt securities;
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the priority of payment of those debt securities;
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the price or prices at which the debt 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 debt securities will be payable;
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the rate or rates per annum at which those debt 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 debt 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 debt 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 debt securities will be payable;
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the date or dates, if any, after which those debt 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 debt 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 debt securities not inconsistent with the provisions of the
applicable Indenture.
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Debt 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
debt 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
Debt securities will be issued only as registered securities, without coupons. Debt 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 debt securities will be made at our office(s) and/or at the
office(s) of the paying agent or 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
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Indenture are met. Accordingly, any such consolidation, merger, or transfer of assets
substantially as an entirety that meets the conditions described above would not create any Event
of Default or Default that would entitle holders of the securities, or the Trustee on their behalf,
to take any of the actions described below under the caption Senior Securities Events of
Default, Waivers, etc. or Subordinated Securities Events of Default, Waivers, etc.
Leveraged and Other Transactions
The Indentures and the securities issued thereunder do not contain provisions that would afford
holders of the debt securities protection in the event of a highly leveraged or other transaction
involving us that could affect the holders of the debt 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 debt 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
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principal amount of the Senior Securities of any series may waive an Event of Default resulting in
acceleration of those Senior Securities, but only if all Events of Default with respect to Senior
Securities of that series have been remedied and all payments due (other than those due as a result
of acceleration) have been made.
The Senior Indenture also provides that, notwithstanding any other provision of the Senior
Indenture, the holder of any Senior Security of any series will have the right to institute suit
for the enforcement of any payment of principal of, premium, if any, and interest on those Senior
Securities when due and that such right will not be impaired without the consent of that holder.
We are required to file with the Trustee annually a written statement of officers as to the
existence or non-existence of defaults under the Senior Indenture or the Senior Securities.
SUBORDINATED SECURITIES
The Subordinated Securities will be our direct, unsecured obligations and, unless otherwise
specified in the prospectus supplement related to a particular series of Subordinated Securities
offered thereby, will be subject to the subordination provisions described below.
Subordination
If any distribution of our assets upon any dissolution, winding up, liquidation, or reorganization
(a Liquidation Distribution) occurs, the holders of any Senior Indebtedness will first be
entitled to receive payment in full of the amounts due or to become due before the holders of the
Subordinated Securities will be entitled to receive any payment in respect of the principal of,
premium, if any, or interest on the Subordinated Securities. If, upon any such payment or
distribution of assets there remain, after giving effect to those subordination provisions in favor
of the holders of Senior Indebtedness, any amounts of cash, property, or securities available for
payment or distribution in respect of Subordinated Securities (Excess Proceeds) and if, at that
time, any creditors in respect of General Obligations have not received payment in full of all
amounts due or to become due on or in respect of those General Obligations, then those Excess
Proceeds will first be applied to pay or provide for the payment in full of those General
Obligations before any payment or distribution is made in respect of the Subordinated Securities.
In addition, no payment may be made of the principal of, premium, if any, or interest on the
Subordinated Securities, or in respect of any redemption, retirement, purchase, or other
acquisition of any of the Subordinated Securities, at any time when (1) there is a default in the
payment of the principal of, premium, if any, interest on, or otherwise in respect of any Senior
Indebtedness or (2) any Event of Default with respect to any Senior Indebtedness has occurred and
is continuing, or would occur as a result of that payment on the Subordinated Securities or any
redemption, retirement, purchase, or other acquisition of any of the Subordinated Securities
permitting the holders of that Senior Indebtedness to accelerate the maturity thereof. Except as
described above, our obligation to make payment of the principal of, premium, if any, or interest
on the Subordinated Securities will not be affected.
Subject to payment in full of all Senior Indebtedness, the holders of Subordinated Securities will
be subrogated to the rights of the holders of Senior Indebtedness to receive payments or
distributions of our cash, property, or securities applicable to Senior Indebtedness. Subject to
payment in full of all General Obligations, the holders of Subordinated Securities will be
subrogated to the rights of the creditors in respect of General Obligations to receive payments or
distributions of cash, property, or securities of us applicable to those creditors in respect of
General Obligations.
Senior Indebtedness is defined in the Subordinated Indenture as the principal of, premium, if
any, and interest on (1) all of our indebtedness for money borrowed, other than the Subordinated
Securities, whether outstanding on the date of execution of the Subordinated Indenture or
thereafter created, assumed, or incurred, except such indebtedness as is by its terms expressly
stated to be not superior in right of payment to the Subordinated Securities; or to rank
pari passu
with the Subordinated Securities and (2) any deferrals, renewals, or extensions of any such Senior
Indebtedness. The term indebtedness for money borrowed used in the preceding sentence includes,
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.
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Unless otherwise specified in the prospectus supplement relating to a particular series of
Subordinated Securities offered thereby, General Obligations means all of our obligations to make
payment on account of claims in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts, and similar arrangements, other than (1) obligations
on account of Senior Indebtedness, (2) obligations on account of indebtedness for money borrowed
ranking
pari passu
with or subordinate to the Subordinated Securities, and (3) obligations which by
their terms are expressly stated not to be superior in right of payment to the Subordinated
Securities or to rank
pari passu
with the Subordinated Securities; provided, however, that,
notwithstanding the foregoing, if any rule, guideline, or interpretation promulgated or issued by
the Board of Governors of the Federal Reserve System (the Federal Reserve Board) (or other
competent regulatory agency or authority) as in effect from time to time establishes or specifies
criteria for the inclusion in regulatory capital of subordinated debt of a bank holding company
requiring that such subordinated debt be subordinated to obligations to creditors in addition to
those set forth above, then the term General Obligations also will include such additional
obligations to creditors in effect from time to time pursuant to those rules, guidelines, or
interpretations. For purposes of the definition of General Obligations, the term claim has the
meaning assigned thereto in Section 101(5) of the Bankruptcy Code of 1978, as amended to the date
of the Subordinated Indenture.
Limited Right of Acceleration
Unless otherwise specified in the prospectus supplement relating to any series of Subordinated
Securities, payment of principal of the Subordinated Securities may be accelerated only in the case
of our bankruptcy, insolvency, or reorganization. There is no right of acceleration in the case of
a default in the payment of principal of, premium, if any, or interest on the Subordinated
Securities or the performance of any other covenant in the Subordinated Indenture.
Events of Default, Defaults, Waivers, Etc.
An Event of Default with respect to our Subordinated Securities of any series is defined in the
Subordinated Indenture as certain events involving our bankruptcy, insolvency, or reorganization
and any other Event of Default provided with respect to Subordinated Securities of that series.
A Default with respect to Subordinated Securities of any series is defined in the Subordinated
Indenture as:
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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
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holders of a majority in aggregate principal amount of the Subordinated Securities of any series
outstanding under the Subordinated Indenture may waive an Event of Default resulting in
acceleration of those Subordinated Securities, but only if all Defaults have been remedied and all
payments due have been made (other than those due as a result of acceleration).
The Subordinated Indenture also provides that, notwithstanding any other provision of the
Subordinated Indenture, the holder of any Subordinated Security of any series has the right to
institute suit to enforce any payment of principal of, premium, if any, or interest on the
Subordinated Security of the respective Stated Maturities (as defined in the Subordinated
Indenture) expressed in that Subordinated Security, and that such right will not be impaired
without the consent of that holder.
We are required to file with the Trustee annually a written statement of officers as to the
existence or non-existence of defaults under the Subordinated Indenture or the Subordinated
Securities.
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DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
We may issue junior subordinated debentures from time to time in one or more series under a junior
subordinated indenture, as supplemented from time to time, the Junior Subordinated Indenture,
between us and the trustee under that indenture, whom we refer to as the Debenture Trustee. The
Junior Subordinated Indenture will be qualified under the Trust Indenture Act, and terms of the
junior subordinated debentures will include those stated in the Junior Subordinated Indenture and
those made part of the Junior Subordinated Indenture by reference to the Trust Indenture Act.
Set forth below is a description of the general terms of the junior subordinated debentures in
which the Trust will invest the proceeds from the issuance and sale of the trust securities. The
statements under this caption are brief summaries of certain provisions contained in the Junior
Subordinated Indenture, do not purport to be complete, and are qualified in their entirety by
reference to the Junior Subordinated Indenture, the form of which has been filed with the SEC as an
exhibit to the registration statement of which this prospectus is a part. The particular terms of
the junior subordinated debentures will be described in the applicable prospectus supplement
relating to the particular trust preferred securities being offered.
We will issue the junior subordinated debentures as unsecured debt. The junior subordinated
debentures will be fully subordinated as set forth in the Junior Subordinated Indenture. See
Subordination of Junior Subordinated Debentures. Each series of junior subordinated debentures
will rank equally with all other series of junior subordinated debentures. The Junior Subordinated
Indenture does not limit the aggregate principal amount of junior subordinated debentures that may
be issued and provides that the junior subordinated debentures may be issued from time to time in
one or more series. Because we are a holding company, our rights and the rights of our creditors,
including the holders of the junior subordinated debentures, to participate in the assets of any of
our subsidiaries upon a subsidiarys liquidation or reorganization will be subject to the prior
claims of the subsidiarys creditors, except to the extent that we ourselves may be a creditor with
recognized claims against the subsidiary. Except as otherwise provided in the applicable prospectus
supplement, the Junior Subordinated Indenture does not limit the incurrence or issuance by us of
other secured or unsecured debt.
Reference is made to the applicable prospectus supplement for any series of junior subordinated
debentures for a description of the following items:
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the title of the junior subordinated debentures;
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the price at which the junior subordinated debentures will be issued;
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any limit upon the aggregate principal amount of junior subordinated debentures;
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the date or dates on which the principal and interest of the junior subordinated
debentures is payable or the method of determination thereof;
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any fixed or variable interest rate or rates per annum;
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any provisions for the deferral of payments of interest;
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the place where the principal of and premium, if any, and interest on the junior
subordinated debentures will be payable and where the junior subordinated debentures may be
presented for registration of transfer or exchange;
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any provisions for redemption or repurchase, the redemption price or repurchase price,
and any remarketing arrangements;
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the minimum denominations;
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the currency or currencies in which the junior subordinated debentures are denominated
or payable;
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if other than the principal amount, the portion of the principal amount of the junior
subordinated debentures payable upon acceleration of the maturity of the junior
subordinated debentures;
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any index used to determine the amount of payment of principal of, and any premium and
interest on, the junior subordinated debentures;
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any additional or different events of default that apply to any junior subordinated
debentures of the series and any change in the right of the trustee or the required holders
of those debt securities to declare the principal thereof due and payable;
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any additional or different covenants that apply to any junior subordinated debentures
of the series;
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any additions or changes to the Junior Subordinated Indenture necessary to permit the
issuance of the junior subordinated debentures in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
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whether the junior subordinated debentures will be issued in whole or in part in the
form of one or more global securities and the depositary for any such global securities;
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the appointment of any paying agent or agents;
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the terms and conditions of any obligation or right of Wilmington Trust or a holder to
convert or exchange the junior subordinated debentures into trust preferred securities;
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if the junior subordinated debentures are to be issued to the Trust, the form or forms
of the trust agreement and guarantee agreement relating thereto;
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if other than as set forth in this prospectus supplement, the relative degree, if any,
to which the junior subordinated debentures will be senior to or be subordinated to other
series of our securities in right of payment; and
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any other terms of the junior subordinated debenture that are not inconsistent with the
provisions of the applicable indenture.
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Junior subordinated debentures may be sold at a substantial discount below their stated principal
amount, bearing no interest, or interest at a rate which at the time of issuance is below market
rates. Certain United States federal income tax consequences and special considerations applicable
to any such junior subordinated debentures will be described in the applicable prospectus
supplement.
Payment of Taxes
If at any time the Trust is required to pay any taxes, duties, assessments, or governmental charges
of whatever nature, other than withholding taxes, imposed by the United States or any other taxing
authority, we will be required to pay such additional amounts on the junior subordinated
debentures, in an amount sufficient so that the net amounts received and retained by the Trust
after paying any such taxes, duties, assessments, or other governmental charges will not be less
than the amounts that the Trust would have received had no such taxes, duties, assessments, or
other governmental charges been imposed. This means that the Trust will be in the same position it
would have been in if it did not have to pay such taxes, duties, assessments, or other charges.
Payment and Paying Agents
Unless otherwise indicated in an applicable prospectus supplement, payment of principal of,
premium, if any, and any interest on debt securities will be made at our office(s) and/or at the
office(s) of the paying agent or 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 junior subordinated debentures will be made to the person in whose
name that junior subordinated debenture is registered at the close of business on the regular
record date for that payment.
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Any amounts deposited with the Debenture Trustee or any paying agent, or then held by us in trust,
for the payment of the principal of, any premium, if any, or interest on any junior subordinated
debentures and remaining unclaimed for two years after those amounts have become due and payable
will, at our request and subject to applicable escheat law, be repaid to us, and the holder of the
junior subordinated debenture will be able to look only to us for payment as a general unsecured
creditor.
Option to Defer Interest Payments
If provided in the applicable prospectus supplement, so long as no debenture event of default (as
described below in Events of Default, Waiver, and Notice) has occurred and is continuing, we will
have the right from time to time during the term of any series of junior subordinated debentures to
defer payment of interest for up to such number of consecutive interest payment periods as may be
specified in the applicable prospectus supplement, subject to the terms, conditions, and covenants,
if any, specified in that prospectus supplement. Such deferral, however, may not extend beyond the
stated maturity of that series of junior subordinated debentures. Certain United States federal
income tax consequences and special considerations applicable to any such junior subordinated
debentures will be described in the applicable prospectus supplement.
During any such extension period, we will not:
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make any payment of principal of, interest, or premium, if any, on or repay, repurchase,
or redeem any debt that ranks
pari passu
in all respects with or junior in interest to the
junior subordinated debentures; or
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declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make
a liquidation payment with respect to, any of our capital stock, in each case other than:
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repurchases, redemptions, or other acquisitions of shares of our capital stock
in connection with any employment contract, benefit plan, or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors, or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan, or in connection with the issuance of our capital
stock, or securities convertible into or exercisable for that capital stock, as
consideration in an acquisition transaction entered into prior to the applicable
extension period;
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as a result of an exchange or conversion of any class or series of our capital
stock for any class or series of our capital stock or of any class or series of our
indebtedness for any class or series of our capital stock;
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the purchase of fractional interests in shares of our capital stock pursuant to
the conversion or exchange provisions of the security being converted or exchanged;
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any declaration of a dividend in connection with any rights plan, the issuance
of rights, stock, or other property under any rights plan, or the redemption or
repurchase of rights pursuant thereto; or
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any dividend in the form of stock, warrants, options, or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options, or
other rights is the same stock as that on which the dividend is being paid or ranks
pari passu
with or junior to that stock
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Redemption
Unless otherwise indicated in the applicable prospectus supplement, the junior subordinated
debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, we may, at our option and
subject to receipt of prior approval by the Federal Reserve Board (if then required under
applicable capital guidelines or policies), redeem the junior subordinated debentures of any series
in whole at any time or in part from time to time. If the junior subordinated debentures of any
series are so redeemable only on or after a specified date or upon the satisfaction of additional
conditions, the applicable prospectus supplement will specify that date or describe those
conditions. Except as otherwise specified in the applicable prospectus supplement, the redemption
price for any
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junior subordinated debenture so redeemed will equal any accrued and unpaid interest thereon to the
redemption date, plus 100% of the principal amount thereof.
Except as otherwise specified in the applicable prospectus supplement, if a tax event, investment
company event, or capital treatment event (each as defined below) has occurred and is continuing, we
may, at our option and subject to receipt of prior approval by the Federal Reserve Board (if then
required under applicable capital guidelines or policies), redeem that series of junior
subordinated debentures in whole, but not in part, at any time within 90 days following of the
occurrence of that tax event, investment company event, or capital treatment event, at a redemption
price equal to 100% of the principal amount of those junior subordinated debentures then outstanding
plus accrued and unpaid interest to the date fixed for redemption.
Tax event means the receipt by the Trust of an opinion of counsel experienced in those matters to
the effect that, as a result of any amendment to, or change (including any announced proposed
change) in, the laws or regulations of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative pronouncement or
judicial decision interpreting or applying those laws or regulations, which amendment or change is
effective or which proposed change, pronouncement, or decision is announced on or after the date of
issuance of those trust preferred securities, there is more than an insubstantial risk that:
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the Trust is, or will be within 90 days of the date of that opinion, subject to United
States federal income tax with respect to income received or accrued on the corresponding
series of corresponding junior subordinated debentures;
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interest payable by us on that series of corresponding junior subordinated debentures is
not, or within 90 days of the date of that opinion, will not be, deductible by Wilmington
Trust, in whole or in part, for United States federal income tax purposes; or
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the Trust is, or will be within 90 days of the date of that opinion, subject to more
than a
de minimis
amount of other taxes, duties, or other governmental charges.
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Investment company event means the receipt by the Trust of an opinion of counsel experienced in
those matters to the effect that, as a result of the occurrence of a change in law or regulation or
a written change (including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency, or regulatory authority,
there is more than an insubstantial risk that the Trust is or will be considered an investment
company that is required to be registered under the Investment Company Act of 1940, as amended
(the Investment Company Act), which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the issuance of the trust preferred
securities.
Capital treatment event means our reasonable determination that, as a result of any amendment to,
or change in (including any proposed change), the laws or regulations of the United States or any
political subdivision thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or which proposed change, pronouncement, action, or decision
is announced on or after the date of issuance of the trust preferred securities under the trust
agreement, there is more than an insubstantial risk that we will not be entitled to treat the
maximum allowable portion of the liquidation amount of the trust preferred securities as Tier I
Capital (or the then equivalent thereof) for purposes of the capital adequacy guidelines of the
Federal Reserve Board, as then in effect and applicable to us.
Notice of any redemption will be mailed at least 45 days but not more than 75 days before the
redemption date to each holder of junior subordinated debentures to be redeemed at its registered
address. Unless we default in payment of the redemption price, on and after the redemption date
interest will cease to accrue on those junior subordinated debentures or portions thereof called for
redemption.
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Restrictions on Certain Payments
If junior subordinated debentures are issued to the Trust or the trustee of the Trust in connection
with the issuance of trust securities and:
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there has occurred and is continuing any event that, with the giving of notice or the
lapse of time, would constitute an event of default with respect to the junior subordinated
debentures of which we have actual knowledge and which we have not taken reasonable steps
to cure;
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we are in default relating to our payment of any obligations under the guarantee; or
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we have given notice of our election to defer payments of interest on the junior
subordinated debentures by extending the interest payment period and that period, or any
extension of that period, is continuing; then
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we may not declare or pay any dividend on, make any distributions relating to, or redeem, purchase,
acquire, or make a liquidation payment relating to, any of our capital stock or make any guarantee
payment with respect thereto other than:
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repurchases, redemptions, or other acquisitions of shares of our capital stock in
connection with any employee benefit plans or in connection with any acquisition
transaction entered into prior to the extension period;
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as a result of an exchange or conversion of any class or series of our capital stock for
any other class or series of our capital stock;
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the purchase of fractional interests in shares of our capital stock pursuant to the
conversion or exchange provisions of that capital stock or the security being converted or
exchanged;
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any declaration of a dividend in connection with any rights plan, the issuance of
rights, stock, or other property under any rights plan, or the redemption or repurchase of
rights pursuant thereto; or
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any dividend in the form of stock, warrants, options, or other rights where that stock
or stock issuable upon exercise of those warrants, options, or other rights is the same
stock as that on which the dividend is being paid or ranks equally with or junior to that
stock.
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Limitation on Mergers and Sales of Assets
The Junior Subordinated Indenture provides that we may not consolidate with, or merge into, any
other corporation or convey or transfer our properties and assets substantially as an entirety
unless:
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the successor entity is an entity organized in the United States and expressly assumes
our obligations under the Junior Subordinated Indenture;
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after giving effect thereto, no event of default and no event which, after notice or
lapse of time, or both, would become an event of default, has occurred and is continuing
under the Junior Subordinated Indenture; and
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certain other conditions as prescribed by the Junior Subordinated Indenture are met.
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The covenants contained in the Junior Subordinated Indenture would not necessarily protect holders
of the junior subordinated debentures in the event of a decline in credit quality resulting from
takeovers, recapitalizations, or similar restructurings.
-24-
Events of Default, Waiver, and Notice
The Junior Subordinated Indenture provides that the following are events of default relating to the
junior subordinated debentures:
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default in the payment of the principal of, or premium, if any, on, any junior
subordinated debentures at maturity;
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default for 30 days in the payment of any installment of interest not otherwise subject
to a deferral during an extension period on any junior subordinated debentures;
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default for 90 days after written notice in the performance of any other covenant in
respect of the junior subordinated debentures;
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default in the payment of interest for ten or more consecutive semi-annual periods; and
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specified events of bankruptcy, insolvency, or reorganization of Wilmington Trust.
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We use the term debenture event of default to refer to the events of default described above with
respect to a corresponding series of junior subordinated debentures.
If a debenture event of default occurs due to a default in the payment of interest for ten or more
consecutive semi-annual periods and is continuing, either the Debenture Trustee or the holders of
not less than 25 percent in aggregate principal amount of the junior subordinated debentures of
that series then outstanding may declare the principal of all junior subordinated debentures of
that series to be due and payable immediately. If the holders of junior subordinated debentures
fail to make that declaration, the holders of at least 25 percent in aggregate liquidation amount
of the related trust preferred securities shall have that right. If an event of default under the
junior subordinated debentures occurs due to bankruptcy, insolvency, or reorganization of
Wilmington Trust, the principal amount of the junior subordinated debentures will become due and
payable automatically and without any declaration or other action on the part of the Debenture
Trustee or any holder.
The holders of a majority in aggregate outstanding principal amount of that series of junior
subordinated debentures may rescind and annul the declaration or acceleration and waive the default
if
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we have paid or deposited with the Debenture Trustee a sum sufficient to pay:
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all overdue installments of interest on the junior subordinated debentures of
that series;
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any accrued additional interest on the junior subordinated debentures of that
series;
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the principal and premium, if any, on the junior subordinated debentures of
that series that have become due other than by reason of the declaration of
acceleration and any additional interest thereon; and
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all sums paid or advanced by the Debenture Trustee under the Junior
Subordinated Indenture; and
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the applicable event of default preceding that acceleration, other than the non-payment
of the principal of the junior subordinated debentures, has been cured or waived.
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In the case of junior subordinated debentures initially issued to the Trust, if the holders of the
junior subordinated debentures fail to annul a declaration of acceleration and waive that default,
the holders of a majority of the aggregate liquidation amount of the corresponding trust preferred
securities issued by the Trust shall also have the right to rescind and annul the declaration of
acceleration and its consequences and waive the default.
The holders of a majority in aggregate outstanding principal amount of that series of junior
subordinated debentures may waive any default, except a default in payment of principal or
interest, unless that default has been cured and a sum sufficient to pay all matured installments
of interest and principal due other than by acceleration has been
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deposited with the Debenture Trustee, or a default in respect of a covenant or provision that under
the Junior Subordinated Indenture cannot be modified or amended without the consent of the holder
of each outstanding junior subordinated debenture. If the holders of junior subordinated debentures
fail to waive that default, the holders of a majority in aggregate liquidation amount of the
related trust preferred securities will have the right to waive that default.
The holders of a majority in principal amount of the junior subordinated debentures of any series
affected will have the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Debenture Trustee under the Junior Subordinated Indenture.
We are required to furnish to the Debenture Trustee an annual statement as to the performance of
our obligations under the Junior Subordinated Indenture and as to any default in that performance.
The junior subordinated debentures of a series will be subject to acceleration only as described
above in connection with (i) a default in the payment of interest for ten or more consecutive
semi-annual periods or (ii) specified events of bankruptcy, insolvency, or reorganization of
Wilmington Trust. If any other debenture event of default occurs as to a series of junior
subordinated debentures, holders of the junior subordinated debentures or the Debenture Trustee on
their behalf may seek to enforce the rights of holders of the junior subordinated debentures of the
related series but may not declare the principal of the junior subordinated debentures of that
series to be due and payable.
Distribution of the Junior Subordinated Debentures
As will be more fully outlined in the applicable prospectus supplement in connection with
circumstances involving the dissolution of a trust (provided that any required regulatory approval
is obtained), junior subordinated debentures will be distributed to the holders of the trust
securities in liquidation of that trust. See Description of Trust Preferred
SecuritiesLiquidation Distribution upon Dissolution.
Modification of Junior Subordinated Indenture
From time to time we and the Debenture Trustee may, without the consent of the holders of the
junior subordinated debentures, modify, waive, or supplement the Junior Subordinated Indenture for
specified purposes, including, among other things:
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evidencing the succession of another entity to Wilmington Trust;
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conveying, transferring, assigning, mortgaging, or pledging any property to or with the
Debenture Trustee;
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establishing the forms and terms of any series of junior subordinated debentures;
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adding to the covenants of Wilmington Trust for the benefit of other holders of all or
any series of securities;
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adding any additional events of default for the benefit of other holders of all or any
series of securities;
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curing ambiguities, defects, or inconsistencies without materially and adversely
affecting the rights of the holders of the junior subordinated debentures or the related
trust preferred securities;
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evidencing and providing for the acceptance of appointment under the Junior Subordinated
Indenture by a successor trustee with respect to the securities of one or more series and
adding to or changing any of the provisions of the indenture as will be necessary to
provide for, or facilitate the administration of, the Trust under the indenture by more
than one trustee;
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amending provisions to comply with requirements to maintain qualification of the Junior
Subordinated Indenture under the Trust Indenture Act; and
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changing or eliminating any of the provisions of the Junior Subordinated Indenture,
provided that any such change or elimination will not apply to any outstanding securities,
or will become effective only when there
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is no security outstanding of any series created prior to the execution of the supplemental
indenture that is entitled to the benefit of that provision.
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We and the Debenture Trustee may make modifications and amendments to the indenture with the
consent of the holders of a majority in principal amount of the outstanding junior subordinated
debentures. However, no such modification or amendment may, without the consent of each affected
holder of junior subordinated debentures:
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modify the payment terms of the junior subordinated debentures; or
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reduce the percentage of holders of junior subordinated debentures necessary to modify
or amend the indenture or waive compliance by us with any covenant or past default.
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If the junior subordinated debentures are held by the Trust or the trustee of the Trust, no
modification may be made that adversely affects the holders of the related trust preferred
securities, no termination of the Junior Subordinated Indenture may occur, and no waiver of any
event of default or compliance with any covenant will be effective without the prior consent of a
majority in liquidation preference of trust preferred securities of the Trust. If the consent of
the holder of each outstanding junior subordinated debenture is required, no modification will be
effective without the prior consent of each holder of related trust preferred securities.
Conversion or Exchange
The junior subordinated debentures of a series may be convertible or exchangeable into junior
subordinated debentures of another series or into trust preferred securities of another series, on
the terms provided in the applicable prospectus supplement. These terms may include provisions for
conversion or exchange, whether mandatory, at the holders option, or at our option, in which case
the number of shares of trust preferred securities or other securities the junior subordinated
debenture holder would receive would be calculated at the time and manner described in the
applicable prospectus supplement.
Subordination of Junior Subordinated Debentures
Any junior subordinated debentures will be subordinate and junior in right of payment to all senior
indebtedness (as defined below unless specified otherwise in the applicable prospectus supplement).
If we make any payment or distribution of our assets upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring, or similar proceedings in connection with any insolvency or
bankruptcy proceeding, the holders of senior debt will first be entitled to receive payment in full
of principal of, and premium and interest, if any, on, that senior debt before the holders of
junior subordinated debentures will be entitled to receive or retain any payment in respect of the
principal of, and premium and interest, if any, on, the junior subordinated debentures. In the
event of the acceleration of the maturity of any junior subordinated debentures, the holders of all
senior debt outstanding at the time of that acceleration will first be entitled to receive payment
in full of all amounts due thereon, including any amounts due upon acceleration, before the holders
of the junior subordinated debentures will be entitled to receive or retain any payment in respect
of the principal of, or premium or interest, if any, on, the junior subordinated debentures.
Senior indebtedness means the principal of, premium, if any, and interest on (1) all of our
indebtedness for money borrowed, other than the junior subordinated debentures, whether or not
already outstanding, except for indebtedness that by its terms expressly is not superior in right
of payment to the junior subordinated debentures or ranks
pari passu
with the junior subordinated
debentures and (2) any deferrals, renewals, or extensions of any such senior indebtedness.
No payments on account of principal or premium, if any, or interest in respect of the junior
subordinated debentures may be made if there has occurred and is continuing a default in any
payment with respect to senior debt or an event of default with respect to any senior debt
resulting in the acceleration of the maturity thereof, or if any judicial proceeding is pending
with respect to any such default.
The Junior Subordinated Indenture places no limitation on the amount of senior debt that we may
incur. We expect from time to time to incur additional indebtedness and other obligations
constituting senior indebtedness.
-27-
The Junior Subordinated Indenture provides that any of the subordination provisions described above
that relate to any particular issue of junior subordinated debentures may be changed prior to
issuance. Any such change would be described in the applicable prospectus supplement.
Corresponding Junior Subordinated Debentures
Wilmington Trust may issue junior subordinated debentures under the Junior Subordinated Indenture
with terms corresponding to the terms of a series of related trust preferred securities, the
corresponding junior subordinated debentures. In that instance, concurrently with the issuance of
the Trusts trust preferred securities, the Trust will invest the proceeds thereof and the
consideration paid by us for the common securities in the series of corresponding junior
subordinated debentures issued by us to the Trust. Each series of corresponding junior subordinated
debentures will be in the principal amount equal to the aggregate stated liquidation amount of the
related trust preferred securities and the common securities of the Trust and will rank equally
with all other series of junior subordinated debentures. Holders of the related trust preferred
securities for a series of corresponding junior subordinated debentures will have the right in
connection with modifications to the Junior Subordinated Indenture or upon occurrence of debenture
events of default as described under Modification of Junior Subordinated Indenture, Events
of Default, Waiver and Notice, and Enforcement of Certain Rights by Holders of Trust Preferred
Securities.
Unless otherwise specified in the applicable prospectus supplement, if a tax event relating to the
Trust has occurred and is continuing, we may, at our option and subject to prior approval of the
Federal Reserve Board (if required), redeem the corresponding junior subordinated debentures at any
time within 90 days of the occurrence of that tax event, in whole but not in part, subject to the
provisions of the Junior Subordinated Indenture and whether or not those corresponding junior
subordinated debentures are then redeemable at our option. The redemption price for any
corresponding junior subordinated debentures will be equal to 100% of
the principal amount of those
corresponding junior subordinated debentures then outstanding plus accrued and unpaid interest to
the date fixed for redemption. For as long as the Trust is the holder of all the outstanding
corresponding junior subordinated debentures of that series, the proceeds of any such redemption
will be used by the Trust to redeem the corresponding trust securities in accordance with their
terms. We may not redeem a series of corresponding junior subordinated debentures in part unless
all accrued and unpaid interest has been paid in full on all outstanding corresponding junior
subordinated debentures of that series for all interest periods terminating on or prior to the date
of redemption.
Unless otherwise specified in the applicable prospectus supplement, we will covenant, as to each
series of corresponding junior subordinated debentures:
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to directly or indirectly maintain 100% ownership of the common securities of the Trust
unless a permitted successor succeeds to ownership of the common securities;
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not to voluntarily terminate, wind up, or liquidate any trust (with the prior approval
of the Federal Reserve Board, if required):
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in connection with a distribution of corresponding junior subordinated
debentures to the holders of the trust preferred securities in exchange therefor
upon liquidation of the Trust, or
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in connection with certain mergers, consolidations, or amalgamations permitted
by the trust agreement; and
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to use our reasonable efforts, consistent with the terms and provisions of the trust
agreement, to cause the Trust to remain classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax purposes.
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DESCRIPTION OF TRUST PREFERRED SECURITIES
The trust preferred securities will be issued pursuant to the terms of an amended and restated
trust agreement. The trust agreement will be qualified as an indenture under the Trust Indenture
Act. The Property Trustee, Wells Fargo Bank, National Association, a national banking association,
will act as trustee for the trust preferred securities under the trust agreement for purposes of
compliance with the provisions of the Trust Indenture Act. The terms of the trust
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preferred securities will include those stated in the applicable trust agreement and those made
part of the trust agreement by the Trust Indenture Act.
Set forth below is a summary of the material terms and provisions of the trust preferred
securities. The statements under this caption are brief summaries of certain provisions contained
in the Trust Agreement, the Delaware Statutory Trust Act, and the Trust Indenture Act and do not
purport to be complete, and are qualified in their entirety by reference to the Trust Agreement,
the form of which has been filed with the SEC as an exhibit to the registration statement of which
this prospectus is a part.
The declaration authorizes the administrators and the trustees to issue the trust securities on
behalf of the Trust. The trust securities represent undivided beneficial interests in the assets of
the Trust. We will own, directly or indirectly, all of the common securities. The common securities
rank equally, and payments will be made on a pro rata basis, with the trust preferred securities.
However, if an event of default under the trust agreement resulting from an event of default under
the Junior Subordinated Indenture occurs and is continuing, the rights of the holders of the common
securities to receive payments will be subordinated to the rights of the holders of the trust
preferred securities.
The trust agreement does not permit the Trust to issue any securities other than the trust
securities or to incur any indebtedness. Under the trust agreement, the Property Trustee will own
the junior subordinated debentures purchased by the Trust for the benefit of the holders of the
trust securities. The guarantee agreement we execute for the benefit of the holders of trust
preferred securities will be a guarantee on a subordinated basis with respect to the related trust
securities but will not guarantee payment of distributions or amounts payable on redemption or
liquidation of those trust securities when the Trust does not have funds on hand available to make
those payments. See Description of Guarantee.
Amounts That We May Issue
The Trust Agreement does not limit the aggregate amount of securities that may be issued. We and
the Trust may issue trust preferred securities and other securities at any time without your
consent and without notifying you.
The trust agreement and the trust preferred securities do not limit our ability to incur
indebtedness or to issue other securities. Also, we are not subject to financial or similar
restrictions by the terms of the trust preferred securities.
In the future, we may form additional trusts or other entities similar to the Trust, and those
other entities could issue securities similar to the trust securities described in this section.
In that event, we may issue subordinated debt securities under the Junior Subordinated Indenture to
those other issuer entities and guarantees under a guarantee agreement with respect to the
securities they issue. We may also enter into expense agreements with those other issuers. The
subordinated debt securities and guarantees we issue (and expense agreement we enter into) in those
cases would be similar to those described in this prospectus, with such modifications as may be
described in the applicable prospectus supplement.
Distributions
Distributions on the trust preferred securities:
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will be cumulative;
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will accumulate from the date of original issuance; and
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will be payable on those dates and in those amounts as specified in the applicable
prospectus supplement.
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If any date on which distributions are payable on the trust preferred securities is not a business
day, then payment of the distribution will be made on the next succeeding business day, and without
any interest or other payment in respect of any such delay, except that, with respect to a payment
of the redemption price, if that business day is in the next calendar year, payment of the
distribution will be made on the immediately preceding business day. Each date on which
distributions are payable in accordance with the foregoing is referred to as a distribution date.
The term distribution includes any interest payable on unpaid distributions unless otherwise
stated.
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Unless specified otherwise in the applicable prospectus supplement, the amount of distributions
payable for any period will be computed on the basis of a 360-day year of twelve 30-day months. The
amount of distributions payable for any period shorter than a full quarterly period will be
computed on the basis of the actual number of days elapsed per 30-day month. Distributions to which
holders of trust preferred securities are entitled will accumulate additional distributions at the
rate per annum if and as specified in the applicable prospectus supplement.
If provided in the applicable prospectus supplement, we may have the right under the Junior
Subordinated Indenture to defer the payment of interest on any series of the corresponding junior
subordinated debentures for up to a number of consecutive interest payment periods that will be
specified in the applicable prospectus supplement relating to that series (an extension period);
provided, however, that no extension period may extend beyond the stated maturity of the
corresponding junior subordinated debentures.
As a consequence of any such deferral, distributions on the related trust preferred securities
would be deferred, but would continue to accumulate additional distributions at the rate per annum
set forth in the applicable prospectus supplement for those trust preferred securities during any
extension period. See Description of Junior Subordinated Debentures Restrictions on Certain
Payments for a description of restrictions on certain payments resulting from deferral of interest
on junior subordinated debentures.
The revenue of the Trust available for distribution to holders of its trust preferred securities
will be limited to payments under the junior subordinated debentures in which the Trust will invest
the proceeds from the issuance and sale of its trust securities. If we do not make interest
payments on the junior subordinated debentures, the Property Trustee will not have funds available
to pay distributions on the related trust preferred securities. The payment of distributions, if
and to the extent the Trust has funds legally available for the payment of those distributions and
cash sufficient to make those payments, is guaranteed by us on the basis set forth under
Description of Guarantee.
Distributions on the trust preferred securities will be payable to the holders thereof as they
appear on the register of the Trust on the relevant record dates, which, as long as the trust
preferred securities remain in book-entry form, will be one business day prior to the relevant date
of distribution. Subject to any applicable laws and regulations and the provisions of the Trust
Agreement, each such payment will be made as described under Book-Entry Issuance. In the event
any trust preferred securities are not in book-entry form, the relevant record date for those trust
preferred securities will be the date 15 days prior to the relevant date of distribution.
Redemption or Exchange
Upon the repayment or redemption, in whole or in part, of the junior subordinated debentures,
whether at maturity or upon earlier redemption as provided in the Junior Subordinated Indenture,
the Property Trustee, upon not less than 30 nor more than 60 days notice prior to the redemption
date, will apply the proceeds from that repayment or redemption to redeem a like amount (as defined
below) of the trust securities at a redemption price (the redemption price) equal to the
aggregate liquidation amount of those trust securities plus accumulated but unpaid distributions up
to the date of redemption (the redemption date) and the related amount of the premium, if any,
paid by us upon the concurrent redemption of the junior subordinated debentures. See Description
of Junior Subordinated DebenturesRedemption. If less than all of any series of the junior
subordinated debentures are to be repaid or redeemed on a redemption date, then the proceeds from
that repayment or redemption, including the premium, if any, will be allocated pro rata to the
redemption of the trust preferred securities and the common securities.
To the extent provided in the prospectus supplement, we will have the right to redeem any series of
junior subordinated debentures:
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on or after the date that may be specified in the applicable prospectus supplement, in
whole at any time or in part from time to time; or
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at any time, in whole, but not in part, upon the occurrence of a tax event, investment
company event, or capital treatment event, in any case subject to receipt of prior approval
by the Federal Reserve Board (if then required under applicable capital guidelines or
policies). See Description of Junior Subordinated DebenturesRedemption for a
description of what constitutes a tax event, investment company event, or capital treatment
event.
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If any tax event, investment company event, or capital treatment event in respect of the trust
securities has occurred and is continuing, we will have the right to redeem the junior subordinated
debentures and thereby cause a mandatory redemption of those trust preferred securities and common
securities in whole, but not in part, at the redemption price. In the event of a tax event,
investment company event, or capital treatment event in respect of the trust preferred securities
and common securities, if we do not elect to redeem the junior subordinated debentures or to
dissolve the Trust, those trust preferred securities will remain outstanding.
Like amount means:
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with respect to a redemption of the trust securities, trust securities having a
liquidation amount (as defined below) equal to that portion of the principal amount of
junior subordinated debentures to be contemporaneously redeemed in accordance with the
Junior Subordinated Indenture, the proceeds of which will be used to pay the redemption
price of those trust securities; and
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with respect to a distribution of junior subordinated debentures to holders of the trust
securities in exchange therefor in connection with a dissolution or liquidation of the
Trust, junior subordinated debentures having a principal amount equal to the liquidation
amount of the trust securities of the holder to whom those junior subordinated debentures
would be distributed.
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Liquidation amount means the stated amount per trust security as set forth in the applicable
prospectus supplement.
Redemption Procedures
Trust preferred securities redeemed on each redemption date will be redeemed at the redemption
price with the applicable proceeds from the contemporaneous redemption of the junior subordinated
debentures. Redemptions of the trust preferred securities will be made and the redemption price
will be payable on each redemption date only to the extent that the Trust has funds on hand
available for the payment of that redemption price. See also Subordination of Common
Securities.
If the Trust gives a notice of redemption of its trust preferred securities, then, by 12:00 p.m.,
New York City time, on the redemption date, to the extent funds are available, the Property Trustee
will deposit irrevocably with the Depository Trust Company (DTC) funds sufficient to pay the
applicable redemption price and will give DTC irrevocable instructions and authority to pay the
redemption price to the holders of those preferred securities. See Book-Entry Issuance. If
those trust preferred securities are no longer in book-entry form, the Property Trustee, to the
extent funds are available, will irrevocably deposit with the paying
agent for those trust preferred
securities funds sufficient to pay the applicable redemption price and will give that paying agent
irrevocable instructions and authority to pay the redemption price to the holders thereof upon
surrender of their certificates evidencing those trust preferred securities.
Notwithstanding the foregoing, distributions payable on or prior to the redemption date for any
trust preferred securities called for redemption will be payable to
the holders of those trust
preferred securities appearing on the relevant securities register on the relevant record dates for
the related distribution dates. If notice of redemption has been given and funds deposited as
required, then upon the date of that deposit:
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all rights of the holders of those trust preferred securities will cease, except the
right of the holders of those trust preferred securities to receive the redemption price,
but without interest on that redemption price; and
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those trust preferred securities will cease to be outstanding.
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If less than all of the trust preferred securities and common securities issued by the Trust are to
be redeemed on a redemption date, then the aggregate liquidation amount of those trust preferred
securities and common securities to be redeemed will be allocated pro rata to the trust preferred
securities and the common securities based upon the relative liquidation amounts of those classes.
The Property Trustee will select the particular trust preferred securities to be redeemed on a pro
rata basis not more than 60 days prior to the redemption date from the outstanding trust preferred
securities not previously called for redemption. For all purposes of the trust agreement, unless
the context otherwise requires, all provisions relating to the redemption of trust preferred
securities relate, in the case of any
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trust preferred securities redeemed or to be redeemed only in part, to the portion of the aggregate
liquidation amount of trust preferred securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to the registered address of each holder of trust securities to be redeemed.
Subordination of Common Securities
Payment of distributions on, and the redemption price of, the Trusts trust preferred securities
and common securities, as applicable, will be made pro rata based on
the liquidation amount of those
trust preferred securities and common securities. If, however, on any distribution date or
redemption date a default in the payment of interest or principal on the junior subordinated
debentures has occurred and is continuing, no payment of any distribution on, or redemption price
of, any of the Trusts common securities, and no other payment on account of the redemption,
liquidation, or other acquisition of those common securities, will be made unless payment in full in
cash of all accumulated and unpaid distributions on all of the Trusts outstanding trust preferred
securities for all distribution periods terminating on or prior thereto, or in the case of payment
of the redemption price the full amount of such redemption price on all of the Trusts outstanding
trust preferred securities then called for redemption, will have been made or provided for, and all
funds available to the Property Trustee will first be applied to the payment in full in cash of all
distributions on, or redemption price of, the Trusts trust preferred securities then due and
payable.
In the case of any event of default under the trust agreement resulting from a debenture event of
default, as holder of the Trusts common securities we will be deemed to have waived any right to
act with respect to any such event of default under the trust agreement until the effects of all
those events of default have been cured, waived, or otherwise eliminated. Until all events of
default under the trust agreement with respect to the trust preferred securities have been so
cured, waived, or otherwise eliminated, the Property Trustee will act solely on behalf of the
holders of the trust preferred securities and not on our behalf, and
only the holders of those trust
preferred securities will have the right to direct the Property Trustee to act on their behalf.
Liquidation Distribution Upon Dissolution
Pursuant to the trust agreement, the Trust will automatically dissolve upon expiration of its term
and will dissolve on the first to occur of:
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certain events of bankruptcy, dissolution, or liquidation of Wilmington Trust;
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the distribution of a like amount of the junior subordinated debentures to the holders
of trust securities, if we, as sponsor, have given written direction to the Property
Trustee to dissolve the Trust, subject to our having received prior approval of the Federal
Reserve Board, if required;
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redemption of all of the Trusts trust preferred securities, and
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the entry of an order for the dissolution of the Trust by a court of competent
jurisdiction.
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If an early dissolution occurs as described above, the Property Trustee will liquidate the Trust as
expeditiously as possible by distributing to the holders of trust securities, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, a like amount of the junior
subordinated debentures. If the Property Trustee determines that such distribution is not
practical, then the holders will be entitled to receive, out of the assets of the Trust available
for distribution to holders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to, in the case of holders of trust preferred
securities, the aggregate liquidation amount plus accrued and unpaid distributions to the date of
payment, or the liquidation distribution. If the Trust has insufficient assets available to pay
in full the aggregate liquidation distribution, then the amounts payable directly by the Trust on
its trust preferred securities will be paid on a pro rata basis. The holders of the Trusts common
securities will be entitled to receive certain distributions upon any such liquidation pro rata
with the holders of its trust preferred securities, except that if certain debenture events of
default have occurred and are continuing, the trust preferred securities will have a priority over
the common securities.
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Events of Default; Notice
Except as otherwise set forth in the relevant prospectus supplement, any one of the following
events constitutes an event of default under the trust agreement (a trust event of default),
regardless of the reason for that event of default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule, or regulation of any administrative or governmental body:
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the occurrence of a debenture event of default with respect to the corresponding junior
subordinated debentures held by the Trust (a debenture event of default) (see
Description of Junior Subordinated DebenturesEvents of Default, Waiver, and Notice);
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the default by the Trust in the payment of any distribution on any trust security of the
Trust when that distribution becomes due and payable, and the default continues for a
period of 30 days;
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the default by the Trust in the payment of any redemption price of any trust security of
the Trust when that payment becomes due and payable;
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the default in the performance, or breach, in any material respect, of any covenant or
warranty of the trustees in the Trust Agreement, other than a covenant or warranty of
default in the performance of which, or the breach of which, is dealt with above, and
continuation of that default or breach for a period of 90 days after written notice has
been given, by registered or certified mail, to us and the defaulting trustee or trustees
by the holders of at least 25% in aggregate liquidation amount of the outstanding trust
preferred securities of a Trust, specifying that default or breach, requiring it to be
remedied, and stating that such notice is a Notice of Default under the Trust Agreement;
or
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the occurrence of certain events of bankruptcy or insolvency with respect to the
Property Trustee and our failure to appoint a successor Property Trustee within 90 days.
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Within the 90 days after the occurrence of any trust event of default actually known to the
Property Trustee, the Property Trustee will transmit notice of that trust event of default to the
holders of the trust preferred securities, the Administrators and to us, as sponsor, unless that
trust event of default has been cured or waived. We, as sponsor, and the Administrators are
required to file annually with the Property Trustee a certificate as to whether or not we or they
are in compliance with all the conditions and covenants applicable to us and to them under the
trust agreement and advise them of any defaults.
If a debenture event of default with respect to the junior subordinated debentures held by the
Trust has occurred and is continuing, the trust preferred securities of the Trust will have a
preference over the Trusts common securities as described above. See Subordination of Common
Securities and Liquidation Distribution Upon Termination. The existence of a debenture event
of default does not entitle the holders of trust preferred securities to accelerate the maturity of
the trust preferred securities.
Removal of Trustees and Administrators
Unless a debenture event of default has occurred and is continuing, any trustee may be removed at
any time by us, as the holder of the common securities. If a debenture event of default has
occurred and is continuing, the holders of a majority in liquidation amount of the outstanding
trust preferred securities may remove the Property Trustee and the Delaware Trustee. Any
administrator may be removed at any time by us, as the holder of the common securities, and in no
event will the holders of the trust preferred securities have the right to vote to appoint, remove,
or replace the Administrators. No resignation or removal of a trustee or administrator and no
appointment of a successor trustee or administrator will be effective until the acceptance of
appointment by the successor trustee or administrator, as applicable, in accordance with the
provisions of the Trust Agreement.
Mergers, Consolidations, Amalgamations, or Replacements of the Trust
The Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey,
transfer, or lease its properties and assets substantially as an entirety to us or any other
person, except as described below or as otherwise
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described in the Trust Agreement. The Trust may, at our request, with the consent of the
Administrators and without the consent of the holders of the trust preferred securities, the
Property Trustee, or the Delaware Trustee, merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer, or lease its properties and assets substantially as an entirety
to, a trust organized as such under the laws of any state if any one of the following events occur:
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that successor entity either:
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expressly assumes all of the obligations of the Trust with respect to the trust
preferred securities, or
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substitutes for the trust preferred securities other securities having
substantially the same terms as the trust preferred securities, the successor
securities, as long as the successor securities rank the same in priority as the
trust preferred securities with respect to distributions and payments upon
liquidation, redemption, and otherwise;
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we appoint a trustee of that successor entity possessing the same powers and duties as
the Property Trustee as the holder of the junior subordinated debentures;
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if the trust preferred securities are listed on a national securities exchange or
interdealer quotation system, the successor securities are listed, or any successor
securities will be listed upon notification of issuance, on any national securities
exchange or other organization on which the trust preferred securities are then listed;
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that merger, consolidation, amalgamation, replacement, conveyance, transfer, or lease
does not cause the trust preferred securities to be downgraded by any nationally recognized
statistical rating organization;
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that merger, consolidation, amalgamation, replacement, conveyance, transfer, or lease
does not adversely affect the rights, preferences, and privileges of the holders of the
trust preferred securities (including any successor securities) in any material respect;
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that successor entity has a purpose substantially identical to that of the Trust;
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prior to that merger, consolidation, amalgamation, replacement, conveyance, transfer, or
lease, we have received an opinion from independent counsel to the Trust experienced in
those matters to the effect that:
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that merger, consolidation, amalgamation, replacement, conveyance, transfer, or
lease does not adversely affect the rights, preferences, and privileges of the
holders of the trust preferred securities (including any successor securities) in
any material respect, and
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following that merger, consolidation, amalgamation, replacement, conveyance,
transfer, or lease, neither the Trust nor that successor entity will be required to
register as an investment company under the Investment Company Act; and
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we or any permitted successor or assignee owns all of the common securities of that
successor entity and guarantees the obligations of that successor entity under the
successor securities at least to the extent provided by the guarantee.
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Notwithstanding the foregoing, the Trust may not, except with the consent of all holders of the
trust preferred securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer, or lease its properties or assets substantially as an entirety to any other
entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if
that consolidation, amalgamation, merger, replacement, conveyance, transfer, or lease would cause
the Trust or the successor entity to be classified as other than a grantor trust for United States
federal income tax purposes.
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Voting Rights; Amendment of the Trust Agreement
Except as provided below and under Description of GuaranteeAmendments and Assignment and as
otherwise required by law and the Trust Agreement, the holders of the trust preferred securities
will have no voting rights.
We and the Administrators may amend the Trust Agreement and may require the Property Trustee to
join in that amendment without the consent of the holders of the trust preferred securities, unless
that amendment would materially and adversely affect the interests of any holder of trust preferred
securities, to:
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cure any ambiguity, correct, or supplement any provision in the Trust Agreement that may
be inconsistent with any other provision, or to make any other provision with respect to
matters or questions arising under the Trust Agreement, which may not be inconsistent with
the other provisions of the Trust Agreement; or
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modify, eliminate, or add to any provisions of the Trust Agreement to the extent
necessary to ensure that the Trust will be classified for United States federal income tax
purposes as a grantor trust at all times that any trust securities are outstanding, to
ensure that the Trust will not be required to register as an investment company under the
Investment Company Act, or to ensure that the trust preferred securities are treated as
Tier 1 regulatory capital.
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We, the Administrators, and the Property Trustee may amend the Trust Agreement with:
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the consent of holders representing not less than a majority (based upon liquidation
amounts) of the outstanding trust securities; and
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receipt by the trustees of an opinion of counsel to the effect that such amendment or
the exercise of any power granted to the trustees in accordance with that amendment will
not affect the Trusts status as a grantor trust for United States federal income tax
purposes or the Trusts exemption from status as an investment company under the
Investment Company Act.
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Without the consent of each holder of trust securities, the Trust Agreement may not be amended to:
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change the amount or timing of any distribution required to be made in respect of the
trust securities as of a specified date; or
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restrict the right of a holder of trust securities to institute suit for the enforcement
of any such payment on or after that date.
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As long as the Property Trustee holds any junior subordinated debentures, neither the trustees nor
the administrators may, without obtaining the prior approval of the holders of a majority in
aggregate liquidation amount of all outstanding trust preferred securities:
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direct the time, method, and place of conducting any proceeding for any remedy available
to the Debenture Trustee, or executing any trust or power conferred on the Property Trustee
with respect to such junior subordinated debentures;
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waive any past default that is waivable under the Junior Subordinated Indenture;
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exercise any right to rescind or annul a declaration that the principal of all the
junior subordinated debentures is due and payable; or
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consent to any amendment, modification, or termination of the Junior Subordinated
Indenture or those junior subordinated debentures where that consent is required.
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If a consent under the Junior Subordinated Indenture would require the consent of each affected
holder of junior subordinated debentures, no such consent may be given by the Property Trustee
without the prior consent of each holder of the trust preferred securities. The trustees may not
revoke any action previously authorized or approved by a vote of the holders of the trust preferred
securities except by subsequent vote of the holders of the trust preferred
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securities. The Property Trustee will notify each holder of the trust preferred securities of any
notice of default with respect to the junior subordinated debentures. In addition to obtaining the
foregoing approvals of the holders of the trust preferred securities, prior to taking any of the
foregoing actions the trustees will obtain an opinion of counsel
experienced in those matters to the
effect that such action would not cause the Trust to be classified as other than a grantor trust
for United States federal income tax purposes.
Any required approval of holders of trust preferred securities may be given at a meeting of holders
of trust preferred securities convened for that purpose or pursuant to written consent. The
Property Trustee will cause a notice of any meeting at which holders of trust preferred securities
are entitled to vote, or of any matter upon which action by written consent of those holders is to
be taken, to be given to each holder of record of trust preferred securities in the manner set
forth in the Trust Agreement. The Property Trustee will call a meeting of the holders of record of
the trust preferred securities at the direction of the holders of at least 25% of the aggregate
liquidation amount of the outstanding trust preferred securities.
No vote or consent of the holders of trust preferred securities will be required for the Trust to
redeem and cancel its trust preferred securities in accordance with the Trust Agreement.
For purposes of any vote or consent of the holders of trust preferred securities under any of the
circumstances described above, any of the trust preferred securities that are owned by us or our
affiliates, the trustees or any of their affiliates, or the administrators or any of their
affiliates will be treated as if they were not outstanding.
Trust Expenses
Pursuant to the Trust Agreement, we, as sponsor, agree to pay:
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all debts and other obligations of the Trust (other than with respect to the trust
preferred securities);
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all costs and expenses of the Trust (including costs and expenses relating to the
organization of the Trust, the fees and expenses of the trustees, expenses of the
administrators, and the costs and expenses relating to the operation of the Trust); and
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any and all taxes and costs and expenses with respect thereto (other than United States
withholding taxes) to which the Trust might become subject.
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COMMON SECURITIES
In connection with the issuance of trust preferred securities, the Trust will issue one series of
common securities having the terms, including distributions, redemption, voting, and liquidation
rights, set forth in the applicable prospectus supplement. Except for voting rights, the terms of
the common securities will be substantially identical to the terms of the trust preferred
securities. The common securities will rank equally, and payments will be made on the common
securities pro rata, with the trust preferred securities, except that, upon certain events of
default, the rights of the holders of the common securities to payment in respect of distributions
and payments upon liquidation, redemption, and otherwise will be subordinated to the rights of the
holders of the trust preferred securities. Except in limited circumstances, the common securities
of the Trust will carry the right to vote to appoint, remove, or replace any of the trustees or
administrators of the Trust. We will own, directly or indirectly, all of the common securities of
the Trust.
DESCRIPTION OF GUARANTEE
Set forth below is a summary of information concerning the guarantee that we will execute and
deliver for the benefit of the holders of trust preferred securities when the Trust issues trust
preferred securities (the Trust Securities Guarantee). The Trust Securities Guarantee will be
qualified as an indenture under the Trust Indenture Act. Wells Fargo Bank, National Association, a
national banking association, will act as the guarantee trustee for purposes of the Trust Indenture
Act. The statements under this caption are brief summaries of certain provisions contained in the
Trust Securities Guarantee, do not purport to be complete, and are qualified in their entirety by
reference to the Trust Securities Guarantee, the form of which has been filed with the SEC as an
exhibit to the
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registration statement of which this prospectus is a part. The guarantee trustee will hold the
trust securities guarantee for the benefit of the holders of the trust preferred securities.
Pursuant to and to the extent set forth in the Trust Securities Guarantee, we will irrevocably and
unconditionally agree to pay in full to the holders of the trust preferred securities, except to
the extent paid by the Trust, as and when due, regardless of any defense, right of set-off, or
counterclaim which the Trust may have or assert, the following payments, which are referred to as
guarantee payments, without duplication:
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any accrued and unpaid distributions that are required to be paid on the trust preferred
securities, to the extent the Trust has funds available for distributions;
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the redemption price, plus all accrued and unpaid distributions, to the extent the Trust
has funds available for redemptions, relating to any trust preferred securities called for
redemption by the Trust; and
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upon a voluntary or involuntary dissolution, winding-up, or termination of the Trust,
other than in connection with the distribution of junior subordinated debentures to the
holders of trust preferred securities or the redemption of all of the trust preferred
securities, the lesser of:
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the aggregate of the liquidation amount and all accrued and unpaid distributions
on the trust preferred securities to the date of payment; and
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the amount of assets of the Trust remaining for distribution to holders of the
trust preferred securities in liquidation of the Trust.
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The redemption price and liquidation amount will be fixed at the time the trust preferred
securities are issued.
Our obligation to make a guarantee payment may be satisfied by direct payment of the required
amounts to the holders of trust preferred securities or by causing the Trust to pay those amounts to
those holders.
The Trust Securities Guarantee will not apply to any payment of distributions except to the extent
the Trust has funds available for those payments. If we do not make interest payments on the junior
subordinated debentures purchased by the Trust, the Trust will not pay distributions on the trust
securities and will not have funds available for those payments. See Status of the Guarantee.
Because we are a holding company, our rights to participate in the assets of any of our
subsidiaries upon the subsidiarys liquidation or reorganization will be subject to the prior
claims of the subsidiarys creditors except to the extent that we may ourselves be a creditor with
recognized claims against the subsidiary. Except as otherwise described in the applicable
prospectus supplement, the Trust Securities Guarantee does not limit the incurrence or issuance by
us of other secured or unsecured debt.
The obligations under the Trust Securities Guarantee, when taken together with our obligations
under the junior subordinated debentures, the Junior Subordinated Indenture, and the Trust
Agreement, including our obligations to pay costs, expenses, debts, and liabilities of the Trust,
other than those relating to trust securities, will provide a full and unconditional guarantee, on
a subordinated basis, of payments due on the trust preferred securities. No single document
standing alone or operating in conjunction with fewer than all of the other documents constitutes a
guarantee. It is only the combined operation of these documents that has the effect of providing a
full, irrevocable, and unconditional guarantee of the Trusts obligation under its trust preferred
securities.
Status of the Guarantee
The guarantee under the Trust Securities Guarantee will be unsecured and will rank:
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subordinate and junior in right of payment to all our other liabilities in the same
manner as the Junior Subordinated Indenture; and
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equally with all other trust security guarantees that we may issue.
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The guarantee will constitute a guarantee of payment and not of collection. This means that the
guaranteed party may sue the guarantor to enforce its rights under the guarantee without suing any
other person or entity. The
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guarantee will be held for the benefit of the holders of the trust preferred securities. The
guarantee will be discharged only by payment of the guarantee payments in full to the extent not
paid by the Trust or upon the junior subordinated debentures.
Amendments and Assignment
The Trust Securities Guarantee may be amended only with the prior approval of the holders of not
less than a majority in aggregate liquidation amount of the outstanding trust preferred securities.
No vote will be required, however, for any changes that do not adversely affect the rights of
holders of trust preferred securities. All guarantees and agreements contained in the Trust
Securities Guarantee will bind our successors, assignees, receivers, trustees, and representatives
and will be for the benefit of the holders of the trust preferred securities then outstanding.
Termination of the Guarantee
The Trust Securities Guarantee will terminate upon full payment of the redemption price of all
trust preferred securities, distribution of the junior subordinated debentures to the holders of
the trust preferred securities, or full payment of the amounts payable in accordance with the Trust
Agreement upon liquidation of the Trust. The Trust Securities Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder of trust preferred
securities is required to repay any sums paid under the trust securities or the Trust Securities
Guarantee.
Events of Default
An event of default under the Trust Securities Guarantee will occur if we fail to perform any
payment or other obligation under the guarantee.
The holders of a majority in liquidation amount of the trust preferred securities will have the
right to direct the time, method, and place of conducting any proceeding for any remedy available
to the guarantee trustee in respect of the Trust Securities Guarantee or to direct the exercise of
any trust or power conferred upon the guarantee trustee under the Trust Securities Guarantee. Any
holder of trust preferred securities may institute a legal proceeding directly against us to
enforce the guarantee trustees rights and our obligations under the Trust Securities Guarantee,
without first instituting a legal proceeding against the Trust, the guarantee trustee, or any other
person or entity.
As guarantor, we are required to file annually with the guarantee trustee a certificate as to
whether or not we are in compliance with all applicable conditions and covenants applicable to us
and to them under the Trust Securities Guarantee and advise them of any defaults.
Information Concerning the Guarantee Trustee
Prior to the occurrence of a default under the Trust Securities Guarantee, the guarantee trustee is
required to perform only the duties that are specifically set forth in the Trust Securities
Guarantee. Following the occurrence of a default, the guarantee trustee will exercise the same
degree of care as a prudent individual would exercise in the conduct of his or her own affairs.
Provided that the foregoing requirements have been met, the guarantee trustee is under no
obligation to exercise any of the powers vested in it by the Trust Securities Guarantee at the
request of any holder of trust preferred securities, unless offered indemnity satisfactory to it
against the costs, expenses, and liabilities which might be incurred thereby.
We and our affiliates may maintain certain accounts and other banking relationships with the
guarantee trustee, the Property Trustee, the Delaware Trustee, and their respective affiliates in
the ordinary course of business.
RELATIONSHIP AMONG TRUST PREFERRED SECURITIES, JUNIOR SUBORDINATED
DEBENTURES, AND GUARANTEE
As set forth in the Trust Agreement, the sole purpose of the Trust is to issue the trust securities
and to invest the proceeds in the junior subordinated debentures.
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As long as payments of interest and other payments are made when due on the junior subordinated
debentures, those payments will be sufficient to cover the distributions and payments due on the
trust securities. This is due to the following factors:
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the aggregate principal amount of junior subordinated debentures will be equal to the
sum of the aggregate stated liquidation amount of the trust securities;
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the interest rate and the interest and other payment dates on the junior subordinated
debentures will match the distribution rate and distribution and other payment dates for
the trust securities;
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under the Junior Subordinated Indenture, we will pay, and the Trust will not be
obligated to pay, directly or indirectly, all costs, expenses, debts, and obligations of
the Trust, other than those relating to the trust securities; and
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the Trust Agreement further provides that the trustees may not cause or permit the Trust
to engage in any activity that is not consistent with the purposes of the Trust.
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To the extent that funds are available, we guarantee payments of distributions and other payments
due on the trust preferred securities to the extent described in this prospectus. If we do not make
interest payments on the junior subordinated debentures, the Trust will not have sufficient funds
to pay distributions on the trust preferred securities. The guarantee under the Trust Securities
Guarantee is a subordinated guarantee in relation to the trust preferred securities. The Trust
Securities Guarantee does not apply to any payment of distributions unless and until the Trust has
sufficient funds for the payment of such distributions. See Description of Guarantee.
We have the right to set off any payment that we are otherwise required to make under the Junior
Subordinated Indenture against any payment that we have previously made or are concurrently on the
date of that payment making under the trust securities guarantee.
The Trust Securities Guarantee covers the payment of distributions and other payments on the trust
preferred securities only if and to the extent that we have made a payment of interest, principal,
or other payments on the junior subordinated debentures. The obligations under the Trust Securities
Guarantee, when taken together with our obligations under the junior subordinated debentures, the
indenture, and the Trust Agreement, will provide a full and unconditional guarantee of
distributions, redemption payments, and liquidation payments on the trust preferred securities. No
single document standing alone or operating in conjunction with fewer than all of the other
documents constitutes a guarantee. It is only the combined operation of these documents that has
the effect of providing a full, irrevocable, and unconditional guarantee of the Trusts obligations
under its trust preferred securities.
If we fail to make interest or other payments on the junior subordinated debentures when due,
taking account of any extension period, the Trust Agreement allows the holders of the trust
preferred securities to direct the Property Trustee to enforce its rights under the junior
subordinated debentures. A holder of trust securities may institute a direct action if a trust
agreement event of default has occurred and is continuing and that event is attributable to our
failure to pay interest or principal on the junior subordinated debentures when due. A direct
action may be brought without first (1) directing the Property Trustee to enforce the terms of the
junior subordinated debentures or (2) suing us to enforce the Property Trustees rights under the
junior subordinated debentures. In connection with that direct action, we will be subrogated to the
rights of that holder of trust preferred securities under the Trust Agreement to the extent of any
payment made by us to that holder of trust preferred securities. Consequently, we will be entitled
to payment of amounts that a holder of trust preferred securities receives in respect of an unpaid
distribution to the extent that such holder receives or has already received full payment relating
to that unpaid distribution from the Trust.
We acknowledge that the guarantee trustee will enforce the Trust Securities Guarantee on behalf of
the holders of the trust preferred securities. If we fail to make payments under the Trust
Securities Guarantee, the holders of the trust preferred securities may direct the guarantee
trustee to enforce its rights thereunder. If the guarantee trustee fails to enforce the Trust
Securities Guarantee, any holder of trust preferred securities may directly sue us to enforce the
guarantee trustees rights under the Trust Securities Guarantee. A holder of trust preferred
securities may also
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directly sue us to enforce that holders right to receive payment under the Trust Securities
Guarantee. In either case, that holder need not first (1) direct the guarantee trustee to enforce
the terms of the Trust Securities Guarantee or (2) sue the related trust or any other person or
entity.
A default or event of default under any of our senior debt would not constitute a default or event
of default under the Junior Subordinated Indenture. However, in the event of a payment default
under, or acceleration of, our senior debt, the subordination provisions of the Junior Subordinated
Indenture provide that no payments may be made in respect of the junior subordinated debentures
until that senior debt has been paid in full or any payment default thereunder has been cured or
waived. Failure to make required payments on the junior subordinated debentures would constitute an
event of default under the Junior Subordinated Indenture.
Limited Purpose of Trust
The trust securities evidence a beneficial interest in the Trust and the Trust exists for the sole
purpose of issuing its trust preferred securities and common securities and investing the proceeds
in the junior subordinated debentures issued by Wilmington Trust. A principal difference between
the rights of a holder of a trust preferred security and a holder of a junior subordinated
debenture is that a holder of a junior subordinated debenture is entitled to receive from us the
principal amount of, and interest accrued on, corresponding junior subordinated debentures held,
while a holder of trust preferred securities is entitled to receive distributions from the Trust
(or from us under the trust securities guarantee) if and to the extent the Trust has funds
available for the payment of those distributions.
Rights Upon Dissolution
Upon any voluntary or involuntary dissolution, winding up, or liquidation of the Trust involving
the liquidation of the junior subordinated debentures, after satisfaction of liabilities to
creditors of the Trust in accordance with applicable law, the holders of the trust preferred
securities will be entitled to receive, out of the assets held by the Trust, the liquidation
distribution in cash. See Description of Trust Preferred SecuritiesLiquidation Distribution Upon
Dissolution. Upon any voluntary or involuntary liquidation or bankruptcy of Wilmington Trust, the
Property Trustee, as holder of the corresponding junior subordinated debentures, would be a
subordinated creditor of Wilmington Trust, subordinated in right of payment to all senior debt as
set forth in the Junior Subordinated Indenture, but entitled to receive payment in full of
principal and interest before any of our stockholders receive distributions. Since we are the
guarantor under the Trust Securities Guarantee and have agreed to pay for all costs, expenses, and
liabilities of the Trust (other than the Trusts obligations to the holders of its trust preferred
securities), the positions of a holder of such trust preferred securities and a holder of such
junior subordinated debentures relative to other creditors and to our stockholders in the event of
liquidation or bankruptcy are expected to be substantially the same.
DESCRIPTION OF OTHER SECURITIES
We will set forth in the applicable prospectus supplement a description of any preferred stock,
depositary shares, purchase contracts, units, warrants, or rights.
BOOK-ENTRY ISSUANCE
To the extent permitted under our Certificate of Incorporation and Bylaws, 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 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
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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 may 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 Trust, the trustees, or any of our respective agents will have any
responsibility or liability for any aspect of the records of DTC, any nominee, or any DTC
participant relating to, or payments made on account of, beneficial interests in a global security
or for maintaining, supervising, or reviewing any of the records of DTC, any nominee, or any DTC
participant relating to those beneficial interests.
A global security is exchangeable for certificated securities registered in the name of a person
other than DTC or its nominee only if:
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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 any 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.
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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 Exchange Act. 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), which is owned by the users of its regulated subsidiaries. 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 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 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.
-42-
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. Secondary market trading between Euroclear participants and/or Clearstream customers
will be settled using the procedures applicable to conventional eurobonds in same-day 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 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 their respective U.S. depositaries.
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.
PLAN OF DISTRIBUTION
We or the Trust, as applicable, 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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-43-
In addition, the securities may be issued as a dividend or distribution or in a subscription rights
offering to existing holders of securities. In some cases, we may also repurchase securities and
reoffer them to the public by one or more of the means described above.
In addition, we may enter into derivative or other hedging transactions with third parties, or sell
securities not covered by this prospectus to third parties in privately negotiated transactions.
The applicable prospectus supplement may indicate that third parties may sell securities covered by
this prospectus and the applicable prospectus supplement, including in short sale transactions to
the extent not prohibited by law, regulation, or order, in connection with those derivatives. If
so, the third party may use securities we pledge or that are borrowed from us or others to settle
those sales or to close out any related open borrowings of stock, and may use securities received
from us in settlement of those derivatives to close out any related open borrowings of stock. The
third party in those sale transactions will be an underwriter and, if applicable, will be
identified in the applicable prospectus supplement (or a post-effective amendment thereto).
A prospectus supplement with respect to each offering of securities will include, to the extent
applicable:
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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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to the extent not contained herein, a description of the securities;
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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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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 will be conducted by underwriters acting as principal or agent of
Wilmington Trust or the Trust, who may also be third-party sellers of securities as described
above.
In addition, we may sell some or all of the securities covered by this prospectus through:
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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
the securities so offered and sold.
In connection with offerings made through underwriters or agents, we and/or the Trust may enter
into agreements with those underwriters or agents pursuant to which we receive our outstanding
securities in consideration for the securities being offered to the public for cash. In connection
with these arrangements, the underwriters or agents also may sell securities covered by this
prospectus to hedge their positions in any such outstanding securities, including in short sale
transactions to the extent not prohibited by law, regulation, or order. If so, the underwriters or
agents may use the securities received from us or the Trust under those arrangements to close out
any related open borrowings of securities.
We or the Trust 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 or the Trust may solicit offers to purchase the securities covered by this prospectus directly
from, and we or the Trust may make sales of those 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 those 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 or the Trust.
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 or the Trust 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 those offered securities, if so described in the applicable prospectus supplement.
We or the Trust may authorize underwriters, dealers, or agents to solicit offers by certain
purchasers to purchase the securities from us or the Trust 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.
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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.
Unless otherwise indicated in the applicable prospectus supplement, and except for offerings of our
common stock, 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, no FINRA member may receive an amount of underwriting
compensation in connection with a public offering of securities that is unfair or unreasonable.
For determining the maximum amount of underwriting compensation considered fair and reasonable, the
following factors are taken into consideration: the offering proceeds, the amount of risk assumed
by the underwriter and related persons, and the type of securities being offered. FINRA guidelines
note that fair and reasonable compensation generally will vary directly with the amount of risk
assumed by participating members, and inversely with the dollar amount of the offering proceeds.
If more than 10% of the net proceeds of any offering of securities made under this prospectus will
be received by FINRA members participating in the offering or affiliates or associated persons of
those FINRA members, the offering will be conducted in accordance with NASD Conduct Rule 2710(h).
Selling securityholders may use this prospectus in connection with resales of the securities
covered by this prospectus. The applicable prospectus supplement will identify the selling
securityholders, the terms of the securities, and the plan of
distribution for those securities.
Selling securityholders may be deemed to be underwriters in connection with the securities they
resell and any profits on the sales may be deemed to be underwriting discounts and commissions
under the Securities Act. The selling securityholders will receive all the proceeds from their sale
of the securities. We will not receive any proceeds from sales by selling securityholders.
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LEGAL MATTERS
Unless otherwise specified in the applicable prospectus supplement, the validity of the securities
of Wilmington Trust Corporation covered by this prospectus will be passed upon for us by Gerard A.
Chamberlain, Esquire, Deputy General Counsel and Vice President. Mr. Chamberlain is an employee of
Wilmington Trust Company and owns stock and options to purchase greater than 500 shares of stock of
Wilmington Trust Corporation. Certain matters of Delaware law relating to the validity of the trust
preferred securities will be passed upon for the Trust and us by Richards, Layton & Finger, P.A.,
special Delaware counsel for the Trust. If legal matters in connection with offerings made by this
prospectus are passed on by counsel for the underwriters, dealers, or agents, if any, that counsel
will be named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Wilmington Trust Corporation as of December 31, 2007 and
2006, and for each of the years in the three-year period ended December 31, 2007, and managements
assessment of the effectiveness of internal control over financial reporting as of December 31,
2007, have been incorporated by reference herein in reliance upon the reports of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The audit report covering the
December 31, 2007 financial statements refers to the Companys adoption of Statement of Financial
Accounting Standards No. 123 (revised), Share-Based Payment, effective January 1, 2006, and
Statement of Financial Accounting Standards No. 158, Employers Accounting for Defined Benefit
Pension and Other Postretirement Plans, effective December 31, 2006.
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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.
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SEC Registration Fees
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$
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#
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Rating Agency Fees
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425,000
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Printing and engraving fees
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55,000
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Accountant fees and expenses
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450,000
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Legal fees and expenses
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550,000
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Trustees, Registrar and Transfer Agents, and Depositaries
fees and expenses
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150,000
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Miscellaneous expenses
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70,000
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Total
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1,630,000
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*
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#
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Deferred in reliance on Rule 456(b) and 457(r). Through the date hereof, we have paid $13,755 in
SEC registration fees under this registration statement.
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*
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Plus SEC Registration Fees.
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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.
II-1
ITEM 17. UNDERTAKINGS
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(a)
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Each of the undersigned registrants hereby undertake:
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(1)
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To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
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(ii)
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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
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(iii)
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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;
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(A)
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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.
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(2)
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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.
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(3)
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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.
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(4)
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That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
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(i)
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Each prospectus filed by a 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
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(ii)
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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
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II-2
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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
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.
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(5)
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That, for the purpose of determining liability of the
registrants under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
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The undersigned registrants undertake that in a primary offering of
securities of the undersigned registrants 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 registrants
will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the
undersigned registrants relating to the offering required to be filed
pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned registrants or
used or referred to by that undersigned registrant;
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(iii)
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The portion of any other free writing
prospectus relating to the offering containing material information
about the undersigned registrants or its securities provided by or on
behalf of the undersigned registrants; and
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(iv)
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Any other communication that is an offer in the
offering made by the undersigned registrants to the purchaser.
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(b)
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The undersigned registrants hereby undertake that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Companys 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.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of either
registrant pursuant to the foregoing provisions, or otherwise, the registrants have
been advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by a
registrant of expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being
registered, the applicable registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue.
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II-3
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(d)
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The undersigned registrants hereby undertake that:
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(1)
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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 a registrant pursuant to 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.
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(2)
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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.
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(e)
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The undersigned registrants hereby undertake 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.
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II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Wilmington Trust
Corporation certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 2 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wilmington,
State of Delaware, on January 12, 2009.
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WILMINGTON TRUST CORPORATION
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Dated: January 12, 2009
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By:
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/s/ David R. Gibson
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David R. Gibson
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Executive Vice President and Chief Financial
Officer
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* * * * *
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.
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Signature
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Title
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Date
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Director, Chairman of the Board,
and Chief Executive Officer
(Principal Executive Officer)
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January 12, 2009
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Director, President, and Chief
Operating Officer
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January 12, 2009
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Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
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January 12, 2009
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Senior Vice President and Controller
(Principal Accounting Officer)
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January 12, 2009
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Director
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January 12, 2009
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Director
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January 12, 2009
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Thomas L. duPont
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Director
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January 12, 2009
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Director
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January 12, 2009
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II-5
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Signature
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Title
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Date
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Director
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January 12, 2009
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Director
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January 12, 2009
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Director
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January 12, 2009
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Director
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January 12, 2009
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Director
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January 12, 2009
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Director
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January 12, 2009
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Director
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January 12, 2009
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Director
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January 12, 2009
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/s/ Gerard A. Chamberlain
Gerard A. Chamberlain
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January 12, 2009
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Attorney-in-fact
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II-6
Pursuant to the requirements of the Securities Act of 1933, Wilmington Capital Trust A
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Post-Effective Amendment No. 2 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Wilmington, State of Delaware, on January 12, 2009.
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WILMINGTON CAPITAL TRUST A
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By: Wilmington Trust Corporation, as Sponsor
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By:
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/s/ Gerard A. Chamberlain
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Gerard A. Chamberlain
Administrator
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II-7
EXHIBIT INDEX
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EXHIBIT NO.
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DESCRIPTION
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1.1
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Form of Underwriting Agreement for Debt Securities.
1
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1.2
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ATM Equity Offering Sales Agreement.
2
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1.3
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Form of Underwriting Agreement for Common Stock.
3
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1.4
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Form of Underwriting Agreement for Preferred Stock.
3
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1.5
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Form of Underwriting Agreement for Depositary Shares.
3
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1.6
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Form of Underwriting Agreement for Purchase Contracts.
3
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1.7
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Form of Underwriting Agreement for Units.
3
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1.8
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Form of Underwriting Agreement for Warrants.
3
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1.9
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Form of Underwriting Agreement for Rights.
3
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1.10
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Form of Underwriting Agreement for Trust Preferred Securities.
3
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1.11
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Letter Agreement including the Securities Purchase Agreement Standard Terms incorporated
therein, dated December 12, 2008, between Wilmington Trust Corporation and the United
States Department of the Treasury.
12
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3.1
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Amended and Restated Certificate of Incorporation of the Corporation (Commission File
Number 1-14659).
4
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3.2
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Amended and Restated Bylaws of the Corporation (Commission File Number 1-14659).
5
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4.1
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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).
6
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4.2
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Indenture relating to Subordinated Debt Securities dated as of May 4, 1998 between
Wilmington Trust Corporation and Norwest Bank Minnesota, National Association.
7
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4.3
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Form of Indenture relating to Senior Debt Securities.
8
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4.4
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Form of Indenture relating to Junior Subordinated Debentures.
9
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4.5
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Form of Subordinated Debt Security (included in Exhibit 4.2).
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4.6
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Form of Senior Debt Security (included in Exhibit 4.3).
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4.7
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Form of 8.50% Subordinated Note due 2018.
10
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4.8
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Form of Junior Subordinated Debenture (included in Exhibit 4.4 filed herewith).
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4.9
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Certificate of Trust of Wilmington Trust Capital A.
9
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4.10
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Trust Agreement of Wilmington Trust Capital A.
9
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EXHIBIT NO.
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DESCRIPTION
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4.11
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Form of Amended and Restated Trust Agreement of Wilmington Trust Capital A.
9
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4.12
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Form of Trust Preferred Security (included in Exhibit 4.10 filed herewith).
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4.13
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Form of Guarantee Agreement between Wilmington Trust Corporation, as guarantor, and Wells
Fargo Bank, National Association, as trustee.
9
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4.14
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Form of Preferred Stock.
3
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4.15
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Form of Deposit Agreement.
3
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4.16
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Form of Purchase Contracts.
3
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4.17
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Form of Warrant.
3
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4.18
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Form of Rights Agreement.
3
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4.19
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Form of Certificate for Series A Preferred Stock.
13
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4.20
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Warrant to purchase shares of Common Stock issued on December 12, 2008.
14
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5.1
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Opinion of Gerard A. Chamberlain, Deputy General Counsel and Vice President of the
Corporation, as to the validity of the debt securities, common stock, preferred stock,
junior subordinated debentures, depositary shares, purchase contracts, units, warrants,
rights, and guarantees of Wilmington Trust Corporation.
9
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5.2
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Opinion of Richards, Layton & Finger, P.A. as to the validity of the Trust Preferred
Securities of Wilmington Trust Capital A.
9
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5.3
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Opinion of Gerard A. Chamberlain, Deputy General Counsel and Vice President of the
Corporation, as to the validity of the preferred stock, warrants, and common stock of
Wilmington Trust Corporation issued under the Purchase Agreement.
9
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12.1
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Statement Regarding Computation of Ratios of Earnings to Fixed Charges.
9
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23.1
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Consent of KPMG LLP.
9
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23.2
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Consent of Gerard A. Chamberlain, Deputy General Counsel and Vice President of the
Corporation (included in Exhibits 5.1 and 5.3 hereto).
9
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23.2
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Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2 hereto).
9
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24.1
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Power of Attorney (included on signature pages to the original registration statement filed
on November 29, 2007).
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25.1
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Statement of Eligibility of Trustee on Form T-1 for Wells Fargo Bank, N.A., as Trustee
under the Indenture for Subordinated Debt Securities.
11
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25.2
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Statement of Eligibility of Trustee on Form T-1 for Wells Fargo Bank, N.A., as Trustee
under the Indenture for Senior Debt Securities.
9
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25.3
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Statement of Eligibility of Trustee on Form T-1 for Wells Fargo Bank, N.A., as Trustee
under the Indenture for Junior Subordinated Debentures.
9
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25.4
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Statement of Eligibility of Trustee on Form T-1 for Wells Fargo Bank, N.A., as Trustee
under the Guarantee Agreement with respect to the Trust Preferred Securities of Wilmington
Trust Capital A.
9
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EXHIBIT NO.
|
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DESCRIPTION
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25.5
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Statement of Eligibility of Trustee on Form T-1 for Wells Fargo Bank, N.A., as Trustee
under the Amended and Restated Trust Agreement with respect to the Trust Preferred
Securities of Wilmington Trust Capital A.
9
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1
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Previously filed as Exhibit 1.1 to the Form S-3 of Wilmington Trust Corporation filed
on March 31, 1998.
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2
|
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Incorporated by reference to Exhibit 1.1 to the Current Report on Form 8-K of
Wilmington Trust Corporation filed on September 22, 2008.
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3
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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.
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4
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Incorporated by reference to Exhibit 3(a) to the Report on Form S-8 of Wilmington
Trust Corporation filed on October 31, 1991.
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5
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Incorporated by reference to Exhibit 1 to the Current Report on Form 8-K of Wilmington
Trust Corporation filed on December 22, 2004.
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6
|
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Incorporated by reference to Exhibit 1 to the Form 8-A/A of Wilmington Trust
Corporation filed on December 22, 2004.
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7
|
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Previously filed as Exhibit 4.2 to the Form S-3 of Wilmington Trust Corporation filed
on November 29, 2007.
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8
|
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Previously filed as Exhibit 4.1 to the Form S-3 of Wilmington Trust Corporation filed
on March 31, 1998.
|
|
9
|
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Filed herewith.
|
|
10
|
|
Incorporated by reference to Exhibit 4.2 to the Current Report on Form 8-K of
Wilmington Trust Corporation filed on April 1, 2008.
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11
|
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Previously filed as Exhibit 25.1 to the Form S-3 of Wilmington Trust Corporation
filed on November 29, 2007.
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12
|
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Previously filed as Exhibit 10.1 to the Current Report on Form 8-K of Wilmington
Trust Corporation filed on December 16, 2008.
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13
|
|
Previously filed as Exhibit 4.1 to the Current Report on Form 8-K of Wilmington Trust
Corporation filed on December 16, 2008.
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|
14
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|
Previously filed as Exhibit 4.2 to the Current Report on Form 8-K of Wilmington Trust
Corporation filed on December 16, 2008.
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