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Exhibit 25.1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM T-1
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STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2)
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FIRST UNION NATIONAL BANK
(Exact name of Trustee as specified in its charter)
0 XXXXX XXXXX XXXXXX
XXXXXXXXX, XXXXX XXXXXXXX 00000-0000 00-0000000
(Address of principal executive office) (Zip Code) (I.R.S. Employer Identification No.)
Xxxxx X. Xxxxx
First Union National Bank
0000 Xxxx Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
(000) 000-0000
(Name, Address and Telephone Number of Agent for Service)
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COMMUNITY HEALTH SYSTEMS, INC.
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
00-0000000
(IRS employer identification no.)
000 XXXXXXXX XXXX, XXXXX 000
XXXXXXXXX, XXXXXXXXX 00000
(Address, including zip code, of principal executive offices)
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___% Convertible Subordinated Notes due 2008
(Title of the indenture securities)
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1. General information.
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Atlanta, Georgia.
Federal Deposit Insurance Corporation, Washington, D.C.
Securities and Exchange Commission, Division of Market Regulation,
Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee.
3.-14. Because the obligor is not in default on any securities issued under
indentures under which the applicant is trustee, Items 3 through 14 are not
required herein.
15. Foreign trustee.
Not applicable.
16. List of Exhibits.
(1) Articles of Association of the Trustee as now in effect.
(2) Certificate of Authority of the Trustee to commence
business. (See Exhibit 2 of the Form T-1 filed in
connection with Registration Statement No. 333-31863, which
is incorporated herein by reference)
(3) Authorization of the Trustee to exercise corporate trust
powers.
(4) By-Laws of the Trustee, as amended, to date.
(5) Not applicable.
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(6) Consent by the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939. Included on Page 5 of this Form T-1
Statement.
(7) Most recent report of condition of the Trustee. (See Exhibit 7
of the Form T-1 filed in connection with Registration
Statement No. 333-60170, which is incorporated herein by
reference)
(8) Not applicable.
(9) Not applicable.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, FIRST UNION NATIONAL BANK, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this
statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Nashville, and State of Tennessee on the 2nd day of October, 2001.
FIRST UNION NATIONAL BANK
(Trustee)
BY: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Vice President
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CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939 and in
connection with the proposed issuance of Notes of COMMUNITY HEALTH SYSTEMS,
INC., First Union National Bank, as the Trustee herein named, hereby consents
that reports of examinations of said Trustee by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
BY: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Vice President
Dated:
October 2, 2001
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Exhibit 1
Charter No. 1
FIRST UNION NATIONAL BANK
ARTICLES OF ASSOCIATION
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For the purposes of organizing an Association to carry on the business of
banking under the laws of the United States, the undersigned do enter into the
following Articles of Association:
FIRST. The title of this Association shall be FIRST UNION NATIONAL
BANK.
SECOND. The main office of the Association shall be in Charlotte,
County of Mecklenburg, State of North Carolina. The general business of the
Association shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not
less than five nor more than twenty-five directors, the exact number of
directors within such minimum and maximum limits to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH. The annual meeting of the shareholders for the election of
directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified therefor in the
By-Laws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all elections shall be
held according to such lawful regulations as may be prescribed by the Board of
Directors.
Nominations for election to the Board of Directors may be made by the
Board of Directors or by any stockholder of any outstanding class of capital
stock of the bank entitled to vote for election of directors. Nominations, other
than those made by or on behalf of the existing management of the bank, shall be
made in writing and shall be delivered or mailed to the President of the bank
and to the Comptroller of the Currency, Washington, D.C., not less than 14
days nor more than 50 days prior to any meeting of stockholders called for
the election of directors; PROVIDED, HOWEVER, that if less than 21 days'
notice of the meeting is given to shareholders, such nomination shall be
mailed or delivered to the President of the Bank and to the Comptroller of
the Currency not later than the close of business on the seventh day
following the day on which the notice of meeting was mailed. Such
notification shall contain the following information to the extent known to
the notifying shareholder: (a) the name and address of each proposed nominee;
(b) the principal occupation of each proposed nominee; (c) the total number
of shares of capital stock of the bank that will be voted for each proposed
nominee; (d) the name and residence address of the notifying shareholder; and
(e) the number of shares of capital stock of the bank owned by the notifying
shareholder. Nominations not made in accordance herewith may, in his
discretion, be disregarded by the Chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
FIFTH.
(a) GENERAL. The amount of capital stock of this Association shall be
(I) 25,000,000 shares of common stock of the par value of twenty dollars
($20.00) each (the "Common Stock") and (ii) 160,540 shares of preferred stock of
the par value of one dollar ($1.00) each (the "Non-Cumulative Preferred Stock"),
having the rights, privileges and preferences set forth below, but said capital
stock may be increased or decreased from time to time in accordance with the
provisions of the laws of the United States.
(b) TERMS OF THE NON-CUMULATIVE PREFERRED STOCK.
1. GENERAL. Each share of Non-Cumulative Preferred Stock shall be
identical in all respects with the other shares of Non-Cumulative Preferred
Stock. The authorized number of shares of Non-Cumulative Preferred Stock may
from time to time be increased or decreased (but not below the number then
outstanding) by the Board of Directors. Shares of Non-Cumulative Preferred Stock
redeemed by the Association shall be canceled and shall revert to authorized but
unissued shares of Non-Cumulative Preferred Stock.
2. DIVIDENDS.
(a) GENERAL. The holders of Non-Cumulative Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors,
but only out of funds legally available therefor, non-cumulative cash
dividends at the annual rate of $83.75 per share, and no more, payable
quarterly on the first days of December, March, June and September,
respectively, in
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each year with respect to the quarterly dividend period (or portion thereof)
ending on the day preceding such respective dividend payment date, to
shareholders of record on the respective date, not exceeding fifty days
preceding such dividend payment date, fixed for that purpose by the Board of
Directors in advance of payment of each particular dividend. Notwithstanding
the foregoing, the cash dividend to be paid on the first dividend payment
date after the initial issuance of Non-Cumulative Preferred Stock and on any
dividend payment date with respect to a partial dividend period shall be
$83.75 per share multiplied by the fraction produced by dividing the number
of days since such initial issuance or in such partial dividend period, as
the case may be, by 360.
(b) NON-CUMULATIVE DIVIDENDS. Dividends on the shares of
Non-Cumulative Stock shall not be cumulative and no rights shall accrue to
the holders of shares of Non-Cumulative Preferred Stock by reason of the fact
that the Association may fail to declare or pay dividends on the shares of
Non-Cumulative Preferred Stock in any amount in any quarterly dividend
period, whether or not the earnings of the Association in any quarterly
dividend period were sufficient to pay such dividends in whole or in part,
and the Association shall have no obligation at any time to pay any such
dividend.
(c) PAYMENT OF DIVIDENDS. So long as any share of Non-Cumulative
Preferred Stock remains outstanding, no dividend whatsoever shall be paid or
declared and no distribution made on any junior stock other than a dividend
payable in junior stock, and no shares of junior stock shall be purchased,
redeemed or otherwise acquired for consideration by the Association, directly
or indirectly (other than as a result of a reclassification of junior stock,
or the exchange or conversion of one junior stock for or into another junior
stock, or other than through the use of the proceeds of a substantially
contemporaneous sale of other junior stock), unless all dividends on all
shares of non-cumulative Preferred Stock and non-cumulative Preferred Stock
ranking on a parity as to dividends with the shares of Non-Cumulative
Preferred Stock for the most recent dividend period ended prior to the date
of such payment or declaration shall have been paid in full and all dividends
on all shares of cumulative Preferred Stock ranking on a parity as to
dividends with the shares of Non-Cumulative Stock (notwithstanding that
dividends on such stock are cumulative) for all past dividend periods shall
have been paid in full. Subject to the foregoing, and not otherwise, such
dividends (payable in cash, stock or otherwise) as may be determined by the
Board of Directors may be declared and paid on any junior stock from time to
time out of any funds legally available therefor, and the Non-Cumulative
Preferred
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Stock shall not be entitled to participate in any such dividends, whether
payable in cash, stock or otherwise. No dividends shall be paid or declared
upon any shares of any class or series of stock of the Association ranking on
a parity (whether dividends on such stock are cumulative or non-cumulative)
with the Non-Cumulative Preferred Stock in the payment of dividends for any
period unless at or prior to the time of such payment or declaration all
dividends payable on the Non-Cumulative Preferred Stock for the most recent
dividend period ended prior to the date of such payment or declaration shall
have been paid in full. When dividends are not paid in full, as aforesaid,
upon the Non-Cumulative Preferred Stock and any other series of Preferred
Stock ranking on a parity as to dividends (whether dividends on such stock
are cumulative or non-cumulative) with the Non-Cumulative Preferred Stock,
all dividends declared upon the Non-Cumulative Preferred Stock and any other
series of Preferred Stock ranking on a parity as to dividends with the
Non-Cumulative Preferred Stock shall be declared pro rata so that the amount
of dividends declared per share on the Non-cumulative Preferred Stock and
such other Preferred Stock shall in all cases bear to each other the same
ratio that accrued dividends per share on the Non-cumulative Preferred Stock
(but without any accumulation in respect of any unpaid dividends for prior
dividend periods on the shares of Non-Cumulative Stock) and such other
Preferred Stock bear to each other. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on
the Non-Cumulative Preferred Stock which may be in arrears.
3. VOTING. The holders of Non-Cumulative Preferred Stock shall not
have any right to vote for the election of directors or for any other purpose.
4. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Association, at the option of the
Board of Directors, may redeem the whole or any part of the shares of
Non-Cumulative Preferred Stock at the time outstanding, at any time or from time
to time after the fifth anniversary of the date of original issuance of the
Non-Cumulative Preferred Stock, upon notice given as hereinafter specified, at
the redemption price per share equal to $1,000 plus an amount equal to the
amount of accrued and unpaid dividends from the immediately preceding dividend
payment date (but without any accumulation for unpaid dividends for prior
dividend periods on the shares of Non-Cumulative Preferred Stock) to the
redemption date.
(b) PROCEDURES. Notice of every redemption of shares of
Non-Cumulative Preferred Stock shall be mailed by first class mail, postage
prepaid,
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addressed to the holders of record of the shares to be redeemed at their
respective last addresses as they shall appear on the books of the
Association. Such mailing shall be at least 10 days and not more than 60 days
prior to the date fixed for redemption. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been duly
given, whether or not the shareholder receives such notice, and failure duly
to give such notice by mail, or any defect in such notice, to any holder of
shares of Non-Cumulative Preferred Stock designated for redemption shall not
affect the validity of the proceedings for the redemption of any other shares
of Non-Cumulative Preferred Stock.
In case of redemption of a part only of the shares of
Non-Cumulative Preferred Stock at the time outstanding the redemption may be
either pro rata or by lot or by such other means as the Board of Directors of
the Association in its discretion shall determine. The Board of Directors shall
have full power and authority, subject to the provisions herein contained, to
prescribe the terms and conditions upon which shares of the Non-Cumulative
Preferred Stock shall be redeemed from time to time.
If notice of redemption shall have been duly given, and, if on
or before the redemption date specified therein, all funds necessary for such
redemption shall have been set aside by the Association, separate and apart
from its other funds, in trust for the pro rata benefit of the holders of the
shares called for redemption, so as to be and continue to be available
therefor, then, notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, all shares so
called for redemption shall no longer be deemed outstanding on and after such
redemption date, and all rights with respect to such shares shall forthwith
on such redemption date cease and terminate, except only the right of the
holders thereof to, receive the amount payable on redemption thereof, without
interest.
If such notice of redemption shall have been duly given or if the
Association shall have given to the bank or trust company hereinafter referred
to irrevocable authorization promptly to give such notice, and, if on or before
the redemption date specified therein, the funds necessary for such redemption
shall have been deposited by the Association with such bank or trust company in
trust for the pro rata benefit of the holders of the shares called for
redemption, then, notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, from and after the
time of such deposit, all shares so called for redemption shall no longer be
deemed to be outstanding and all rights with respect to such shares shall
forthwith cease and terminate, except
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only the right of the holders thereof to receive from such bank or trust
company at any time after the time of such deposit the funds so deposited,
without interest. The aforesaid bank or trust company shall be organized and
in good standing under the laws of the United States of America or any state
thereof, shall have capital, surplus and undivided profits aggregating at
least $50,000,000 according to its last published statement of condition, and
shall be identified in the notice of redemption. Any interest accrued on such
funds shall be paid to the Association from time to time. In case fewer than
all the shares of Non-Cumulative Preferred Stock represented by a stock
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
Any funds so set aside or deposited, as the case may be, and
unclaimed at the end of the relevant escheat period under applicable state law
from such redemption date shall, to the extent permitted by law, be released or
repaid to the Association, after which repayment the holders of the shares so
called for redemption shall look only to the Association for payment thereof.
5. LIQUIDATION.
(a) LIQUIDATION PREFERENCE. In the event of any voluntary
liquidation, dissolution or winding up of the affairs of the Association, the
holders of Non-Cumulative Preferred Stock shall be entitled, before any
distribution or payment is made to the holders of any junior stock, to be paid
in full an amount per share equal to an amount equal to $1,000 plus an amount
equal to the amount accrued and unpaid dividends per share from the immediately
preceding dividend payment date (but without any accumulation for unpaid
dividends for prior dividend periods on the shares of Non-Cumulative Preferred
Stock) per share to such distribution or payment date (the "liquidation
amount").
In the event of any involuntary liquidation, dissolution or winding
up of the affairs of the Association, then, before any distribution or payment
shall be made to the holders of any junior stock, the holders of Non-Cumulative
Preferred Stock shall be entitled to be paid in full an amount per share equal
to the liquidation amount.
If such payment shall have been made in full to all holders of
shares of Non-Cumulative Preferred Stock, the remaining assets of the
Association shall be distributed among the holders of junior stock, according to
their
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respective rights and preferences and in each case according to their
respective numbers of shares.
(b) INSUFFICIENT ASSETS. In the event that, upon any such
voluntary or involuntary liquidation, dissolution or winding up, the
available assets of the Association are insufficient to pay such liquidation
amount on all outstanding shares of Non-Cumulative Preferred Stock, then the
holders of Non-Cumulative Preferred Stock shall share ratably in any
distribution of assets in proportion to the full amounts to which they would
otherwise be respectively entitled.
(c) INTERPRETATION. For the purposes of this paragraph 5, the
consolidation or merger of the Association with any other corporation or
association shall not be deemed to constitute a liquidation, dissolution or
winding up of the Association.
6. PREEMPTIVE RIGHTS. The Non-Cumulative Preferred Stock is not
entitled to any preemptive, subscription, conversion or exchange rights in
respect of any securities of the Association.
7. DEFINITIONS. As used herein with respect to the Non-Cumulative
Preferred Stock, the following terms shall have the following meanings:
(a) The term "junior stock" shall mean the Common Stock and any
other class or series of shares of the Association hereafter authorized over
which the Non-Cumulative Preferred Stock has preference or priority in the
payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Association.
(b) The term "accrued dividends", with respect to any share of
any class or series, shall mean an amount computed at the annual dividend
rate for the class or series of which the particular share is a part, from,
if such share is cumulative, the date on which dividends on such share became
cumulative to and including the date to which such dividends are to be
accrued, less the aggregate amount of all dividends theretofore paid thereon
and, if such share is noncumulative, the relevant date designated to and
including the date to which such dividends are accrued, less the aggregate
amount of all dividends theretofore paid with respect to such period.
(c) The term "Preferred Stock" shall mean all outstanding shares of
all series of preferred stock of the Association as defined in this Article
Fifth of the Articles of Association, as amended, of the Association.
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8. RESTRICTION ON TRANSFER. No shares of Non-Cumulative Preferred
Stock, or any interest therein, may be sold, pledged, transferred, or otherwise
disposed of without the prior written consent of the Association. The foregoing
restriction shall be stated on any certificate for any shares of Non-Cumulative
Preferred Stock.
9. ADDITIONAL RIGHTS. The shares of Non-Cumulative Preferred Stock
shall not have any relative, participating, optional or other special rights and
powers other than as set forth herein.
SIXTH. The Board of Directors shall appoint one of its members
President of this Association, who shall be Chairman of the Board, unless the
Board appoints another director to be the Chairman. The Board of Directors shall
have the power to appoint one or more Vice Presidents; and to appoint a cashier
or such other officers and employees as may be required to transact the business
of this Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of the Association, to fix the salaries to be paid to
them; to dismiss them, to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage and administer the business and affairs of
the Association; to make all By-Laws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of Charlotte,
North Carolina, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency; and shall have the power to
establish or change the location of any branch or branches of the Association to
any other location, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue
until terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than 10 percent of the stock of
this Association, may call a special meeting of shareholders at any time. Unless
otherwise provided by the laws of the United States, a notice of the time,
place, and purpose of every annual and special meeting of the shareholders shall
be given by first-class mail, postage prepaid, mailed at least ten days prior to
the
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date of such meeting to each shareholder of record at his address as shown
upon the books of this Association.
TENTH. Each director and executive officer of this Association shall be
indemnified by the association against liability in any proceeding (including
without limitation a proceeding brought by or on behalf of the Association
itself) arising out of his status as such or his activities in either of the
foregoing capacities, except for any liability incurred on account of activities
which were at the time taken known or believed by such person to be clearly in
conflict with the best interests of the Association. Liabilities incurred by a
director or executive officer of the Association in defending a proceeding shall
be paid by the Association in advance of the final disposition of such
proceeding upon receipt of an undertaking by the director or executive officer
to repay such amount if it shall be determined, as provided in the last
paragraph of this Article Tenth, that he is not entitled to be indemnified by
the Association against such liabilities.
The indemnity against liability in the preceding paragraph of this
Article Tenth, including liabilities incurred in defending a proceeding, shall
be automatic and self-operative.
Any director, officer or employee of this Association who serves at the
request of the Association as a director, officer, employee or agent of a
charitable, not-for-profit, religious, educational or hospital corporation,
partnership, joint venture, trust or other enterprise, or a trade association,
or as a trustee or administrator under an employee benefit plan, or who serves
at the request of the Association as a director, officer or employee of a
business corporation in connection with the administration of an estate or trust
by the Association, shall have the right to be indemnified by the Association,
subject to the provisions set forth in the following paragraph of this Article
Tenth, against liabilities in any manner arising out of or attributable to such
status or activities in any such capacity, except for any liability incurred on
account of activities which were at the time taken known or believed by such
person to be clearly in conflict with the best interests of the Association, or
of the corporation, partnership, joint venture, trust, enterprise, Association
or plan being served by such person.
In the case of all persons except the directors and executive officers
of the Association, the determination of whether a person is entitled to
indemnification under the preceding paragraph of this Article Tenth shall be
made by and in the sole discretion of the Chief Executive Officer of the
Association. In the case of the directors and executive officers of the
Association, the indemnity against
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liability in the preceding paragraph of this Article Tenth shall be automatic
and self-operative.
For purposes of this Article Tenth of these Articles of Association
only, the following terms shall have the meanings indicated:
(a) "Association" means First Union National Bank and its direct and
indirect wholly-owned subsidiaries.
(b) "Director" means an individual who is or was a director of the
Association.
(c) "Executive officer" means an officer of the Association who by
resolution of the Board of Directors of the Association has been determined to
be an executive officer of the Association for purposes of Regulation O of the
Federal Reserve Board.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses, including counsel fees and expenses,
incurred with respect to a proceeding.
(e) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(f) "Proceeding" means any threatened, pending, or completed claim,
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
The Association shall have no obligation to indemnify any person for an
amount paid in settlement of a proceeding unless the Association consents in
writing to such settlement.
The right to indemnification herein provided for shall apply to persons
who are directors, officers, or employees of banks or other entities that are
hereafter merged or otherwise combined with the Association only after the
effective date of such merger or other combination and only as to their status
and activities after such date.
The right to indemnification herein provided for shall inure to the
benefit of the heirs and legal representatives of any person entitled to such
right.
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No revocation of, change in, or adoption of any resolution or provision
in the Articles of Association or By-laws of the Association inconsistent with,
this Article Tenth shall adversely affect the rights of any director, officer,
or employee of the Association with respect to (i) any proceeding commenced or
threatened prior to such revocation, change, or adoption, or (ii) any proceeding
arising out of any act or omission occurring prior to such revocation, change,
or adoption, in either case, without the written consent of such director,
officer, or employee.
The rights hereunder shall be in addition to and not exclusive of any
other rights to which a director, officer, or employee of the Association may be
entitled under any statute, agreement, insurance policy, or otherwise.
The Association shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, or
employee of the Association, or is or was serving at the request of the
Association as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, trade association, employee
benefit plan, or other enterprise, against any liability asserted against
such director, officer, or employee in any such capacity, or arising out of
their status as such, whether or not the Association would have the power to
indemnify such director, officer, or employee against such liability,
excluding insurance coverage for a formal order assessing civil money
penalties against an Association director or employee.
Notwithstanding anything to the contrary provided herein, no person
shall have a right to indemnification with respect to any liability (I) incurred
in an administrative proceeding or action instituted by an appropriate bank
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association, (II) to the extent such
person is entitled to receive payment therefore under any insurance policy or
from any corporation, partnership, joint venture, trust, trade association,
employee benefit plan, or other enterprise other than the Association, or (III)
to the extent that a court of competent jurisdiction determines that such
indemnification is void or prohibited under state or federal law.
ELEVENTH. These Articles of Association may be amended at any regular
or special meeting of the shareholders by the affirmative vote of the holders of
a majority of the stock of this Association, unless the vote of holders of a
greater amount of stock is required by law, and in that case, by the vote of the
holders of such greater amount.
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TWELFTH. The Association, at any time and from time to time, may
authorize and issue debt obligations, whether or not subordinated, without the
approval of the shareholders.
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Exhibit 3
Certificate of Fiduciary Powers
I, Xxxx X. Xxxxx, Xx., Comptroller of the Currency, do hereby certify
that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324,
et seq., as amended, 12 U.S.C. 1, et. seq., as amended, has possession, custody
and control of all records pertaining to the chartering of all National Banking
Associations.
2. "First Union National Bank," Charlotte, North Carolina, (Charter
No. 1), was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 00 Xxxx. 000, 00 X.X.X. 00x, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents
at the Treasury Department in the City
of Washington and District of Columbia,
this 3rd day of April, 2000.
/s/ Xxxx X. Xxxxx, Xx.
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Comptroller of the Currency
Exhibit 4
BY-LAWS OF
FIRST UNION NATIONAL BANK
Charter No. 1
Effective June 19, 2001
BY-LAWS OF
FIRST UNION NATIONAL BANK
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.1 ANNUAL MEETING. The annual meeting of the shareholders for
the election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday of April in
each year, commencing with the year 1998, except that the Board of Directors
may, from time to time and upon passage of a resolution specifically setting
forth its reasons, set such other date for such meeting during the month of
April as the Board of Directors may deem necessary or appropriate; provided,
however, that if an annual meeting would otherwise fall on a legal holiday, then
such annual meeting shall be held on the second business day following such
legal holiday. The holders of a majority of the outstanding shares entitled to
vote which are represented at any meeting of the shareholders may choose persons
to act as Chairman and as Secretary of the meeting.
SECTION 1.2 SPECIAL MEETINGS. Except as otherwise specifically provided
by statute, special meetings of the shareholders may be called for any purpose
at any time by the Board of Directors or by any three or more shareholders
owning, in the aggregate, not less than ten percent of the stock of the
Association. Every such special meeting, unless otherwise provided by law, shall
be called by mailing, postage prepaid, not less than ten days prior to the date
fixed for such meeting, to each shareholder at his address appearing on the
books of the Association, a notice stating the purpose of the meeting.
SECTION 1.3 NOMINATIONS FOR DIRECTORS. Nominations for election to the
Board of Directors may be made by the Board of Directors or by any stockholder
of any outstanding class of capital stock of the bank entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the bank, shall be made in writing and shall be delivered
or mailed to the President of the Bank and to the Comptroller of the Currency,
Washington, D. C., not less than 14 days nor more than 50 days prior to any
meeting of stockholders called for the election of directors, provided however,
that if less than 21 days' notice of such meeting is given to
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shareholders, such nomination shall be mailed or delivered to the
President of the Bank and to the Comptroller of the Currency not later than
the close of business on the seventh day following the day on which the
notice of meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder: (a) the name
and address of each proposed nominee; (b) the principal occupation of each
proposed nominee; (c) the total number of shares of capital stock of the bank
that will be voted for each proposed nominee; (d) the name and residence
address of the notifying shareholder; and (e) the number of shares of capital
stock of the bank owned by the notifying shareholder. Nominations not made in
accordance herewith may, in his discretion, be disregarded by the chairman of
the meeting, and upon his instructions, the vote tellers may disregard all
votes cast for each such nominee.
SECTION 1.4 JUDGES OF ELECTION. The Board may at any time appoint from
among the shareholders three or more persons to serve as Judges of Election at
any meeting of shareholders; to act as judges and tellers with respect to all
votes by ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
SECTION 1.5 PROXIES. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting. Proxies
shall be dated and shall be filed with the records of the meeting.
SECTION 1.6 QUORUM. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.1 BOARD OF DIRECTORS. The Board of Directors (hereinafter
referred to as the "Board"), shall have power to manage and administer the
business and affairs of the Association. Except as expressly limited by law, all
corporate powers of the Association shall be vested in and may be exercised by
said Board.
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SECTION 2.2 NUMBER. The Board shall consist of not less than five
nor more than twenty-five directors, the exact number within such minimum and
maximum limits to be fixed and determined from time to time by resolution of
a majority of the full Board or by resolution of the shareholders at any
meeting thereof; provided, however, that a majority of the full Board of
Directors may not increase the number of directors to a number which, (1)
exceeds by more than two the number of directors last elected by shareholders
where such number was fifteen or less, and (2) to a number which exceeds by
more than four the number of directors last elected by shareholders where
such number was sixteen or more, but in no event shall the number of
directors exceed twenty-five.
SECTION 2.3 ORGANIZATION MEETING. The Secretary of the meeting upon
receiving the certificate of the judges, of the result of any election, shall
notify the directors-elect of their election and of the time at which they are
required to meet at the Main Office of the Association for the purpose of
organizing the new Board and electing and appointing officers of the Association
for the succeeding year. Such meeting shall be held as soon thereafter as
practicable. If, at the time fixed for such meeting, there shall not be a quorum
present, the directors present may adjourn the meeting from time to time, until
a quorum is obtained.
SECTION 2.4 REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such place and time as may be designated by
resolution of the Board of Directors. Upon adoption of such resolution, no
further notice of such meeting dates or the places or times thereof shall be
required. Upon the failure of the Board of Directors to adopt such a resolution,
regular meetings of the Board of Directors shall be held, without notice, on the
third Tuesday in February, April, June, August, October and December, commencing
with the year 1997, at the main office or at such other place and time as may be
designated by the Board of Directors. When any regular meeting of the Board
would otherwise fall on a holiday, the meeting shall be held on the next
business day unless the Board shall designate some other day.
SECTION 2.5 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the President of the Association, or at the request
of three (3) or more directors. Each member of the Board of Directors shall be
given notice stating the time and place, by telegram, letter, or in person, of
each such special meeting.
SECTION 2.6 QUORUM. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but a less
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number may adjourn any meeting, from time to time, and the meeting may be
held, as adjourned, without further notice.
SECTION 2.7 VACANCIES. When any vacancy occurs among the directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
SECTION 2.8 ADVISORY BOARDS. The Board of Directors may appoint
Advisory Boards for each of the states in which the Association conducts
operations. Each such Advisory Board shall consist of as many persons as the
Board of Directors may determine. The duties of each Advisory Board shall be to
consult and advise with the Board of Directors and senior officers of the
Association in such state with regard to the best interests of the Association
and to perform such other duties as the Board of Directors may lawfully
delegate.
The senior officer in such state, or such officers as directed by such
senior officer, may appoint advisory boards for geographic regions within such
state and may consult with the State Advisory Boards prior to such appointments.
ARTICLE III
COMMITTEES OF THE BOARD
SECTION 3.1 The Board of Directors, by resolution adopted by a majority
of the number of directors fixed by these By-Laws, may designate two or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent authorized by law and provided in such resolution, shall
have and may exercise all of the authority of the Board of Directors and the
management of the Association. The designation of any committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or any member of the Board of Directors by law. The Board of Directors
reserves to itself alone the power to act on (1) dissolution, merger or
consolidation, or disposition of substantially all corporate property, (2)
designation of committees or filling vacancies on the Board of Directors or on a
committee of the Board (except as hereinafter provided), (3) adoption, amendment
or repeal of By-laws, (4) amendment or repeal of any resolution of the Board
which by its terms is not so amendable or repealable, and (5) declaration of
dividends, issuance of stock, or recommendations to stockholders of any action
requiring stockholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
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vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors
may fix such committee's rules of procedure. All action by any committee shall
be reported to the Board of Directors at a meeting succeeding such action,
except such actions as the Board may not require to be reported to it in the
resolution creating any such committee. Any action by any committee shall be
subject to revision, alteration, and approval by the Board of Directors, except
to the extent otherwise provided in the resolution creating such committee;
provided, however, that no rights or acts of third parties shall be affected by
any such revision or alteration.
ARTICLE IV
OFFICERS AND EMPLOYEES
SECTION 4.1 OFFICERS. The officers of the Association may be a
Chairman of the Board, a Vice Chairman of the Board, one or more Chairmen or
Vice Chairmen (who shall not be required to be directors of the Association),
a President, one or more Vice Presidents, a Secretary, a Cashier or
Treasurer, and such other officers, including officers holding similar or
equivalent titles to the above in regions, divisions or functional units of
the Association, as may be appointed by the Board of Directors. The Chairman
of the Board and the President shall be members of the Board of Directors.
Any two or more offices may be held by one person, but no officer shall sign
or execute any document in more than one capacity.
SECTION 4.2 ELECTION, TERM OF OFFICE, AND QUALIFICATION. Each officer
shall be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
SECTION 4.2(A) OFFICERS ACTING AS ASSISTANT SECRETARY. Notwithstanding
Section 1 of these By-laws, any Senior Vice President, Vice President, or
Assistant Vice President shall have, by virtue of his office, and by authority
of the By-laws, the authority from time to time to act as an Assistant Secretary
of the Bank, and to such extent, said officers are appointed to the office of
Assistant Secretary.
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SECTION 4.3 CHIEF EXECUTIVE OFFICER. The Board of Directors shall
designate one of its members to be the President of this Association, and the
officer so designated shall be an ex officio member of all committees of the
Association except the Examining Committee, and its Chief Executive Officer
unless some other officer is so designated by the Board of Directors.
SECTION 4.4 DUTIES OF OFFICERS. The duties of all officers shall be
prescribed by the Board of Directors. Nevertheless, the Board of Directors may
delegate to the Chief Executive Officer the authority to prescribe the duties of
other officers of the corporation not inconsistent with law, the charter, and
these By-laws, and to appoint other employees, prescribe their duties, and to
dismiss them. Notwithstanding such delegation of authority, any officer or
employee also may be dismissed at any time by the Board of Directors.
SECTION 4.5 OTHER EMPLOYEES. The Board of Directors may appoint from
time to time such tellers, vault custodians, bookkeepers, and other clerks,
agents, and employees as it may deem advisable for the prompt and orderly
transaction of the business of the Association, define their duties, fix the
salary to be paid them, and dismiss them. Subject to the authority of the Board
of Directors, the Chief Executive Officer or any other officer of the
Association authorized by him, may appoint and dismiss all such tellers, vault
custodians, bookkeepers and other clerks, agents, and employees, prescribe their
duties and the conditions of their employment, and from time to time fix their
compensation.
SECTION 4.6 REMOVAL AND RESIGNATION. Any officer or employee of the
Association may be removed either with or without cause by the Board of
Directors.
Any employee other than an officer elected by the Board of Directors may be
dismissed in accordance with the provisions of the preceding Section 4.5. Any
officer may resign at any time by giving written notice to the Board of
Directors or to the Chief Executive Officer of the Association. Any such
resignation shall become effective upon its being accepted by the Board of
Directors, or the Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
SECTION 5.1 CAPITAL MANAGEMENT GROUP. There shall be an area of this
Association known as the Capital Management Group which shall be responsible for
the exercise of the fiduciary powers of this Association. The Capital Management
Group shall consist of four service areas: Fiduciary Services, Retail Services,
Investments and Marketing. The Fiduciary Services unit shall consist of
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personal trust, employee benefits, corporate trust and operations. The
General Office for the Fiduciary Services unit shall be located in Charlotte,
N.C., with additional Trust Offices in such locations as the Association
shall determine from time to time.
SECTION 5.2 TRUST OFFICERS. There shall be a General Trust Officer of
this Association whose duties shall be to manage, supervise and direct all the
activities of the Capital Management Group. Further, there shall be one or more
Senior Trust Officers designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management Group
in accordance with provisions of applicable law and regulation.
SECTION 5.3 GENERAL TRUST COMMITTEE. There shall be a General Trust
Committee composed of not less than four (4) members of the Board of
Directors or officers of this Association who shall be appointed annually, or
from time to time, by the Board of Directors of this Association. Each member
shall serve until his successor is appointed. The Board of Directors or the
Chairman of the Board may change the membership of the General Trust
Committee at any time, fill any vacancies therein, or discharge any member
thereof with or without cause at any time. The General Trust Committee shall
counsel and advise on all matters relating to the business or affairs of the
Capital Management Group and shall adopt overall policies for the conduct of
the business of the Capital Management Group, including, but not limited to:
general administration, investment policies, new business development, and
review for approval of major assignments of functional responsibilities. The
General Trust Committee shall appoint the members of the following
subcommittees: the Investment Policy Committee, Personal Trust Administration
Committee, Account Review Committee, and Corporate and Institutional Accounts
Committee. The General Trust Committee shall meet at least quarterly or as
called for by its Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. In carrying out its
responsibilities, the General Trust Committee shall review the fiduciary
activities of the Capital Management Group and may assign the administration
and performance of any fiduciary powers or duties to any officers or
employees of the Capital Management Group or to the Investment Policy
Committee, Personal Trust Administration Committee, Account Review Committee,
or Corporate and Institutional Accounts Committee, or other committees it may
designate. One of the methods to be used in the review process will be the
scrutiny of the Reports of Examination by the Office of the Comptroller of
the Currency and the reports of the Audit Division of First Union
Corporation, as they relate to the activities of the Capital Management
Group. The Chairman of the General Trust Committee shall be appointed by the
Chairman of the Board of Directors. The Chairman of the General
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Trust Committee shall cause to be recorded in appropriate minutes all actions
taken by the Committee. The minutes shall be signed by its Secretary,
approved by its Chairman and submitted to the Board of Directors at its next
regularly scheduled meeting following a meeting of the General Trust
Committee. The Board of Directors retains responsibility for the proper
exercise of this Association's fiduciary powers.
SECTION 5.4 INVESTMENT POLICY COMMITTEE. There shall be an Investment
Policy Committee composed of not less than seven (7) officers and/or employees
of this Association, who shall be appointed annually or from time to time by the
General Trust Committee. Each member shall serve until his or her successor is
appointed. Meetings shall be called by the Chairman or by any two (2) members of
the Committee. A quorum shall consist of five (5) members. The Investment Policy
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the General Trust Committee. All actions taken by the
Investment Policy Committee shall be recorded in appropriate minutes, signed by
the Secretary thereof, approved by its Chairman, and submitted to the General
Trust Committee at its next ensuing regular meeting for its review and
approval."
SECTION 5.5 PERSONAL TRUST ADMINISTRATION COMMITTEE. There shall be a
Personal Trust Administration Committee composed of not less than five (5)
officers and/or employees of this Association, who shall be appointed annually
or from time to time by the General Trust Committee. Each member shall serve
until his or her successor is appointed. Meetings shall be called by the
Chairman or by any three (3) members of the Committee. A quorum shall consist of
three (3) members. The Personal Trust Administration Committee shall exercise
such fiduciary powers and perform such duties as may be assigned to it by the
General Trust Committee. All actions taken by the Personal Trust Administration
Committee shall be recorded in appropriate minutes, signed by the Secretary
thereof, approved by its Chairman, and submitted to the General Trust Committee
at its next ensuing regular meeting for its review and approval."
SECTION 5.6 ACCOUNT REVIEW COMMITTEE. There shall be an Account
Review Committee composed of not less than four (4) officers and/or employees
of this Association, who shall be appointed annually or from time to time by
the General Trust Committee. Each member shall serve until his or her
successor is appointed. Meetings shall be called by the Chairman or by any
two (2) members of the Committee. A quorum shall consist of three (3)
members. The Account Review Committee shall exercise such fiduciary powers
and perform such duties as may be assigned to it by the General Trust
Committee.
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All actions taken by the Account Review Committee shall be recorded in
appropriate minutes, signed by the Secretary thereof, approved by its
Chairman, and submitted to the General Trust Committee at its next ensuing
regular meeting for its review and approval."
SECTION 5.7 CORPORATE AND INSTITUTIONAL ACCOUNTS COMMITTEE. There shall
be a Corporate and Institutional Accounts Committee composed of not less than
five (5) officers and/or employees of this Association, who shall be appointed
annually or from time to time by the General Trust Committee. Each member shall
serve until his or her successor is appointed. Meetings shall be called by the
Chairman or by any two (2) members of the Committee. A quorum shall consist of
three (3) members. The Corporate and Institutional Accounts Committee shall
exercise such fiduciary powers and perform such duties as may be assigned to it
by the General Trust Committee. All actions taken by the Corporate and
Institutional Accounts Committee shall be recorded in appropriate minutes,
signed by the Secretary thereof, approved by its Chairman, and submitted to the
General Trust Committee at its next ensuing regular meeting for its review and
approval."
ARTICLE VI
STOCK AND STOCK CERTIFICATES
SECTION 6.1 TRANSFERS. Shares of stock shall be transferable on the
books of the Association, and a transfer book shall be kept in which all
transfers of stock shall be recorded. Every person becoming a shareholder by
such transfer shall, in proportion to his shares, succeed to all rights and
liabilities of the prior holder of such shares.
SECTION 6.2 STOCK CERTIFICATES. Certificates of stock shall bear the
signature of the Chairman, the Vice Chairman, the President, or a Vice President
(which may be engraved, printed, or impressed), and shall be signed manually or
by facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the Board of Directors for that
purpose, to be known as an Authorized Officer, and the seal of the Association
shall be engraved thereon. Each certificate shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
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ARTICLE VII
CORPORATE SEAL
SECTION 7.1 The President, the Cashier, the Secretary, or any Assistant
Cashier, or Assistant Secretary, or other officer thereunto designated by the
Board of Directors shall have authority to affix the corporate seal to any
document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 FISCAL YEAR. The fiscal year of the Association shall be
the calendar year.
SECTION 8.2 EXECUTION OF INSTRUMENTS. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, notices,
applications, schedules, accounts, affidavits, bonds, undertakings, proxies, and
other instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted in behalf of the Association by the Chairman of the Board,
the Vice Chairman of the Board, any Chairman or Vice Chairman, the President,
any Vice President or Assistant Vice President, the Secretary or any Assistant
Secretary, the Cashier or Treasurer or any Assistant Cashier or Assistant
Treasurer, or any officer holding similar or equivalent titles to the above in
any regions, divisions or functional units of the Association, or, if in
connection with the exercise of fiduciary powers of the Association, by any of
said officers or by any Trust Officer or Assistant Trust Officer (or equivalent
titles); provided, however, that where required, any such instrument shall be
attested by one of said officers other than the officer executing such
instrument. Any such instruments may also be executed, acknowledged, verified,
delivered or accepted in behalf of the Association in such other manner and by
such other officers as the Board of Directors may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
By-laws.
SECTION 8.3 RECORDS. The Articles of Association, the By-laws, and
the proceedings of all meetings of the shareholders, the Board of Directors,
standing committees of the Board, shall be recorded in appropriate minute
books
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provided for the purpose. The minutes of each meeting shall be signed
by the Secretary, Cashier, or other officer appointed to act as Secretary of
the meeting.
ARTICLE IX
BY-LAWS
SECTION 9.1 INSPECTION. A copy of the By-laws, with all amendments
thereto, shall at all times be kept in a convenient place at the Head Office of
the Association, and shall be open for inspection to all shareholders, during
banking hours.
SECTION 9.2 AMENDMENTS. The By-laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the whole number of Directors.
EXHIBIT A
First Union National Bank
Article X
Emergency By-laws
In the event of an emergency declared by the President of the United
States or the person performing his functions, the officers and employees of
this Association will continue to conduct the affairs of the Association under
such guidance from the directors or the Executive Committee as may be available
except as to matters which by statute require specific approval of the Board of
Directors and subject to conformance with any applicable governmental directives
during the emergency.
OFFICERS PRO TEMPORE AND DISASTER
Section 1. The surviving members of the Board of Directors or the
Executive Committee shall have the power, in the absence or disability of any
officer, or upon the refusal of any officer to act, to delegate and prescribe
such officer's powers and duties to any other officer, or to any director, for
the time being.
Section 2. In the event of a state of disaster of sufficient severity
to prevent the conduct and management of the affairs and business of this
Association by its directors and officers as contemplated by these By-laws, any
two or more available members of the then incumbent Executive Committee shall
constitute a quorum of that Committee for the full conduct and management of the
affairs and business of the Association in accordance with the provisions of
Article II of these By-laws; and in addition, such Committee shall be empowered
to exercise all of the powers reserved to the General Trust Committee under
Section 5.3 of Article V hereof. In the event of the unavail- ability, at such
time, of a minimum of two members of the then incumbent Executive Committee, any
three available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Association in
accordance with the foregoing provisions of this section. This By-law shall be
subject to implementation by resolutions of the Board of Directors passed from
time to time for that purpose, and any provisions of these By-laws (other than
this section) and any resolutions which are contrary to the provisions of this
section or to the provisions of any such implementary
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resolutions shall be suspended until it shall be determined by an interim
Executive Committee acting under this section that it shall be to the
advantage of this Association to resume the conduct and management of its
affairs and business under all of the other provisions of these By-laws.
Officer Succession
BE IT RESOLVED, that if consequent upon war or warlike damage or
disaster, the Chief Executive Officer of this Association cannot be located by
the then acting Head Officer or is unable to assume or to continue normal
executive duties, then the authority and duties of the Chief Executive Officer
shall, without further action of the Board of Directors, be automatically
assumed by one of the following persons in the order designated:
Chairman
President
Division Head/Area Administrator - Within this officer class, officers
shall take seniority on the basis of length of service in such office
or, in the event of equality, length of service as an officer of the
Association.
Any one of the above persons who in accordance with this resolution
assumes the authority and duties of the Chief Executive Officer shall continue
to serve until he resigns or until five-sixths of the other officers who are
attached to the then acting Head Office decide in writing he is unable to
perform said duties or until the elected Chief Executive Officer of this
Association, or a person higher on the above list, shall become available to
perform the duties of Chief Executive Officer of the Association.
BE IT FURTHER RESOLVED, that anyone dealing with this Association may
accept a certification by any three officers that a specified individual is
acting as Chief Executive Officer in accordance with this resolution; and that
anyone accepting such certification may continue to consider it in force until
notified in writing of a change, said notice of change to carry the signatures
of three officers of the Association.
Alternate Locations
The offices of the Association at which its business shall be conducted
shall be the main office thereof in each city which is designated as a City
Office (and branches, if any), and any other legally authorized location which
may be leased or acquired by this Association to carry on its business. During
an emergency resulting in any authorized place of business of this Association
being unable to function, the business ordinarily conducted at such location
shall be
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relocated elsewhere in suitable quarters, in addition to or in lieu of the
locations heretofore mentioned, as may be designated by the Board of
Directors or by the Executive Committee or by such persons as are then, in
accordance with resolutions adopted from time to time by the Board of
Directors dealing with the exercise of authority in the time of such
emergency, conducting the affairs of this Association. Any temporarily
relocated place of business of this Association shall be returned to its
legally authorized location as soon as practicable and such temporary place
of business shall then be discontinued.
Acting Head Offices
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its functions, the
Raleigh office, located in Raleigh, North Carolina, shall automatically and
without further action of this Board of Directors, become the "Acting Head
Office of this Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage
or disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville, North
Carolina, shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association"; and if neither the Raleigh Office nor
the Asheville Office can carry on their functions, then the Greensboro Office of
this Association, located in Greensboro, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association"; and if neither the Raleigh Office, the Asheville Office, nor the
Greensboro Office can carry on their functions, then the Lumberton Office of
this Association, located in Lumberton, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association". The Head Office shall resume its functions at its legally
authorized location as soon as practicable.
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