<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 7, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------
BANK ONE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 31-1597175 6712
(State or other jurisdiction (I.R.S. Employer (Primary Standard
of incorporation or organization) Identification No.) Industrial Classification
Code Number)
---------------------
ONE FIRST NATIONAL PLAZA
CHICAGO, IL 60670
(312) 732-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------------
ROBERT A. ROSHOLT, CHIEF FINANCIAL OFFICER
BANK ONE CORPORATION
ONE FIRST NATIONAL PLAZA, CHICAGO, IL 60670
(312) 732-3209
(Name, address, including zip code, and telephone number,
including area code, of registrant's agent for service)
COPIES TO:
<TABLE>
<S> <C> <C>
LAURENCE GOLDMAN, ESQ. CRAIG M. WASSERMAN, ESQ. B. ROBBINS KIESSLING, ESQ.
BANK ONE CORPORATION WACHTELL, LIPTON, ROSEN & KATZ CRAVATH, SWAINE & MOORE
ONE FIRST NATIONAL PLAZA 51 WEST 52ND STREET WORLDWIDE PLAZA, 825 EIGHTH AVENUE
CHICAGO, ILLINOIS 60670 NEW YORK, NY 10019 NEW YORK, NEW YORK 10019
(312) 732-3565 (212) 403-1000 (212) 474-1000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
---------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
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. [X]
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 statement number of the earlier
effective registration statement for the same offering. [_]
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. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
PROPOSED
MAXIMUM
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT OFFERING PRICE PER OFFERING REGISTRATION
BE REGISTERED TO BE REGISTERED SHARE PRICE (1) FEE (1)
- ------------------------------------ ---------------- ------------------ --------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 891,000 shares N/A $35,640,000 $10,514
</TABLE>
(1) In accordance with Rule 457(c), the aggregate offering price and
registration fee for the 891,000 shares of Common Stock is based on the
average of the high and low prices for the Registrant's Common Stock on the
New York Stock Exchange, Inc. Composite Transactions Tape on October 5,
1998.
<PAGE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF SECTION
8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 7, 1998
The information in this prospectus is not complete, and it may change. This
prospectus is included in a registration statement that we filed with the
Securities and Exchange Commission. The selling stockholder cannot sell these
securities until that registration statement becomes effective. This prospectus
is not an offer to sell these securities or the solicitation of an offer to buy
these securities in any state where an offer to sell or the solicitation of an
offer to buy is not permitted.
PROSPECTUS BANK ONE CORPORATION
891,000 SHARES One First National Plaza
COMMON STOCK Chicago, Illinois 60670
PAR VALUE $.01 PER SHARE (312) 732-4000
891,000 SHARES
BANK ONE CORPORATION
COMMON STOCK
____________
This Prospectus covers the sale of up to 891,000 shares of BANK ONE common
stock.
BANK ONE common stock is listed on the New York Stock Exchange under the
symbol "ONE". On October , 1998, the last reported sale price of the common
stock on the NYSE was $ per share.
____________
Credit Suisse First Boston Corporation, a stockholder of BANK ONE, is
offering these shares for sale. BANK ONE will receive none of the proceeds of
the sale of these shares.
____________
THE SECURITIES AND EXCHANGE COMMISSION HAS NOT APPROVED OR DISAPPROVED THESE
SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE NOT OBLIGATIONS OF A BANK OR SAVINGS ASSOCIATION AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
____________
The date of this Prospectus is October , 1998
<PAGE>
We have not authorized anyone (including any salesman or broker) to give oral or
written information about this offering that is different from the information
included in this prospectus or that is not included in this prospectus.
____________________
TABLE OF CONTENTS
Where You Can Find More Information......................... 1
Forward-Looking Statements.................................. 4
About BANK ONE CORPORATION.................................. 5
Use of Proceeds............................................. 5
Selling Stockholder......................................... 6
Plan of Distribution........................................ 6
Legal Matters............................................... 8
Experts..................................................... 8
____________________
[LOGO APPEARS HERE]
891,000 SHARES
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
____________________
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
Federal securities law requires BANK ONE to file information with the
Securities and Exchange Commission concerning its business and operations.
Accordingly, BANK ONE files, and its predecessors, BANC ONE CORPORATION and
First Chicago NBD Corporation filed, annual, quarterly and special reports,
proxy statements and other information with the Commission. You can inspect and
copy this information at the public reference facility maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549. You can also do so at the following regional offices of the
Commission:
. New York Regional Office, Seven World Trade Center, Suite 1300,
New York, New York 10048
. Chicago Regional Office, Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661
You can get additional information about the operation of the
Commission's public reference facilities by calling the Commission at 1-800-SEC-
0330. The Commission also maintains a web site (http://www.sec.gov) that
contains reports, proxy and information statements and other information
regarding companies that, like BANK ONE, file information electronically with
the Commission. You can also inspect information about BANK ONE at the offices
of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The Commission allows BANK ONE to "incorporate by reference" the
information we file with them, which means that we can disclose important
information to you by referring you to the other information we have filed with
the Commission. The information that we incorporate by reference is considered
to be part of this prospectus, and later information that we file with the
Commission will automatically update and supersede the information we've
included in this prospectus. We incorporate by reference the documents listed
below. On October 2, 1998, BANC ONE CORPORATION and First Chicago NBD
Corporation merged into BANK ONE, which did not conduct any substantial business
prior to the merger; the documents we list below were filed by us or by one of
our predecessor companies. We also incorporate by reference any future filings
BANK ONE makes with the Commission under Sections 13(a), 13(c) or 15(d) of the
Securities Exchange Act of 1934 until the selling stockholder sells all of the
shares or until the offering of the shares is otherwise ended. This prospectus
is part of a registration statement that we filed with the Commission
(Registration No. 333- ).
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<PAGE>
<TABLE>
<CAPTION>
BANK ONE SEC FILINGS PERIOD
- -------------------- ------
<S> <C>
Current Reports on Form 8-K......................... Dated:
. October 2, 1998
. October 6, 1998
Registration Statement on Form S-4 (Registration No.
333-60313).......................................... Dated: July 31, 1998
The description of BANK ONE Common Stock set forth
in the Current Report on Form 8-K dated October 2,
1998, including any amendment or report filed with
the Commission for the purpose of updating such
description
BANC ONE SEC FILINGS PERIOD
- -------------------- ------
Annual Report on Form 10-K......................... Year ended December 31, 1997
Quarterly Reports on Form 10-Q..................... Quarters ended March 31, 1998, and June 30, 1998
(as amended by the Form 10-Q/A filed August 14, 1998).
Current Reports on Form 8-K........................ Dated:
. January 26, 1998
. April 14, 1998, as amended by the Form 8-K/A filed
April 21, 1998,amended by the Form 8-K/A filed May 19, 1998,
as amended by the Form 8-K/A filed August 17, 1998
. April 22, 1998
. July 21, 1998
. July 22, 1998
. July 24, 1998, as amended by the Form 8-K filed August 11, 1998
. July 24, 1998
. August 28, 1998
. September 11, 1998
. September 17, 1998
FIRST CHICAGO NBD SEC FILINGS PERIOD
- ----------------------------- ------
Annual Report on Form 10-K......................... Year ended December 31, 1997
Quarterly Reports on Form 10-Q..................... Quarters ended March 31, 1998, and June 30, 1998
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
Current Reports on Form 8-K........................ Dated:
. January 16, 1998
. February 17, 1998
. April 10, 1998
. April 13, 1998
. April 21, 1998
. May 19, 1998
. July 13, 1998
. August 17, 1998
. September 11, 1998
. September 15, 1998
</TABLE>
You can request a free copy of these filings by writing or calling us
at the following address:
Investor Relations
BANK ONE CORPORATION
One First National Plaza
Chicago, Illinois 60670
(312) 732-4812
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement to this prospectus. We have not
authorized anyone else to provide you with different information or additional
information. The selling stockholder will not make an offer of these shares in
any state where the offer is not permitted. You should not assume that the
information in this prospectus, or any supplement to this prospectus, is
accurate at any date other than the date indicated on the cover page of these
documents.
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<PAGE>
FORWARD-LOOKING STATEMENTS
This Prospectus (including information included or incorporated by
reference herein) contains certain forward-looking statements with respect to
the financial condition, results of operations, plans, objectives, future
performance and business of BANK ONE and its predecessors, BANC ONE and First
Chicago NBD, as well as certain information relating to the merger of BANC ONE
and First Chicago NBD to form BANK ONE, including, without limitation,
statements relating to the cost savings, revenue enhancement and restructuring
charges estimated to result from the merger and statements preceded by, followed
by or that included the words "believes," "expects," "anticipates," "estimates"
or similar expressions. These forward-looking statements involve certain risks
and uncertainties. Actual results may differ materially from those contemplated
by such forward-looking statements due to, among others, the following factors:
(a) expected cost savings and revenue enhancements from the merger may not be
fully realized or realized within the expected time frame; (b) revenues
following the merger may be lower than expected, or deposit attrition, operating
costs or customer loss and business disruption following the merger may be
greater than expected; (c) competitive pressures among depository and other
financial institutions may increase significantly; (d) costs or difficulties
related to the integration of the business of BANC ONE and First Chicago NBD may
be greater than expected; (e) changes in the interest rate environment may
reduce margins; (f) general economic or business conditions, either nationally
or in the states in which BANK ONE is doing business, may be less favorable than
expected resulting in, among others things, a deterioration in credit quality or
a reduced demand for credit; (g) legislative or regulatory changes may adversely
affect the business in which BANK ONE is engaged; (h) technological changes
(including the costs of remediating or failing to remediate "Year 2000" and
"Euro" data systems compliance issues, including those of BANK ONE and those of
other persons by whom BANK ONE's business may be affected) may be more difficult
or expensive than anticipated; and (i) changes may occur in the securities and
capital markets.
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<PAGE>
ABOUT BANK ONE CORPORATION
Unless the context otherwise requires, all references to BANK ONE
include BANK ONE CORPORATION and our consolidated subsidiaries.
BANK ONE is a multi-bank holding company registered under the Bank
Holding Company Act of 1956, as amended (the "BHC Act"). BANK ONE is the
successor to the businesses of BANC ONE CORPORATION ("BANC ONE") and First
Chicago NBD Corporation ("FCN") pursuant to the merger of BANC ONE and FCN into
BANK ONE, which merger was consummated on October 2, 1998.
Through its bank subsidiaries, BANK ONE provides domestic retail
banking, worldwide corporate and institutional banking, and trust and investment
management services. As of October 2, 1998, BANK ONE operated banking offices in
Arizona, Colorado, Florida, Illinois, Indiana, Kentucky, Louisiana, Michigan,
Ohio, Oklahoma, Texas, Utah, West Virginia and Wisconsin. BANK ONE also owns
nonbank subsidiaries that engage in businesses related to banking and finance,
including credit card and merchant processing, consumer and education finance,
mortgage lending and servicing, insurance, venture capital, investment and
merchant banking, trust, brokerage, investment management, leasing, community
development and data processing.
BANK ONE is a legal entity separate and distinct from its affiliate
banks and its nonbank subsidiaries. Accordingly, the right of BANK ONE, and
therefore the right of BANK ONE's creditors and stockholders, to participate in
any distribution of the assets or earnings of such affiliate or subsidiary is
necessarily subject to the prior claims of creditors of such affiliate or
subsidiary except to the extent that claims of BANK ONE in its capacity as a
creditor may be recognized. The principal sources of BANK ONE's revenues are
dividends, interest on loans and fees from such affiliates and subsidiaries.
Applicable federal law restricts the ability of certain of such affiliates and
subsidiaries to pay dividends to BANK ONE.
As of June 30, 1998, on a pro forma basis, BANK ONE had assets of $244
billion, deposits of $154 billion and stockholders' equity of $19 billion.
BANK ONE is a Delaware corporation and its principal executive office
is located at One First National Plaza, Chicago Illinois, 60670 and its
telephone number is (312) 732-4000.
USE OF PROCEEDS
All of the shares of the common stock, par value $.01 per share, of
BANK ONE (the "Shares") offered hereby are being sold by Credit Suisse First
Boston Corporation (the "Selling Stockholder"). BANK ONE will not receive any of
the proceeds from the sale of the Shares. BANK ONE will pay certain expenses
relating to this offering, estimated to be approximately $40,000. See "Selling
Stockholder."
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<PAGE>
SELLING STOCKHOLDER
Prior to consummation of the Merger, FCN sold 550,000 shares of its
common stock, par value $1.00 per share ("FCN Common Stock"), to the Selling
Stockholder in a transaction (the "Private Placement") exempt from registration
under the Securities Act of 1933, as amended (the "Securities Act"). At
consummation of the Merger, the 550,000 shares of FCN Common Stock sold in the
Private Placement were converted into the right to receive the 891,000 Shares
based on the 1.62 exchange ratio in the Merger.
As of October , 1998, the Selling Stockholder owned shares of
BANK ONE Common Stock, including the Shares. Before and after the offering, the
Selling Stockholder will beneficially own less than 1% of the outstanding shares
of BANK ONE Common Stock. The Selling Stockholder has not held any position or
office or, except for investment banking services provided in the ordinary
course of the Selling Stockholder's business, had any material relationship with
BANK ONE or its affiliates or predecessors within the past three years other
than as a result of the ownership of FCN Common Stock and BANK ONE Common Stock.
There can be no assurance that the Selling Stockholder will sell all or any of
the Shares offered hereunder.
PLAN OF DISTRIBUTION
All or part of the Shares may be offered by the Selling Stockholder
from time to time in transactions on the New York Stock Exchange, Inc. (the
"NYSE"), in privately negotiated transactions, through the writing of options on
the Shares, or a combination of such methods of sale, at fixed prices that may
be changed, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, or at negotiated prices. For purposes of this
Prospectus, the term "Selling Stockholder" includes donees, transferees,
pledgees or other successors in interest of or to the Selling Stockholder that
receive the Shares as a gift, partnership distribution or other non-sale related
transfer. The Selling Stockholder will act independently of BANK ONE in making
decisions with respect to the timing, manner and size of each sale. The methods
by which the Shares may be sold or distributed may include, but are not limited
to, the following:
(a) a cross or block trade in which the broker or dealer engaged by
the Selling Stockholder will attempt to sell the Shares as agent
but may position and resell a portion of the block as principal
to facilitate the transaction;
(b) purchases by a broker or dealer as principal and resale by such
broker or dealer for its account;
(c) an exchange distribution in accordance with the rules of such
exchange;
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<PAGE>
(d) ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
(e) privately negotiated transactions;
(f) short sales or borrowings, returns and reborrowings of the Shares
pursuant to stock loan agreements to settle short sales;
(g) delivery in connection with the issuance of securities by
issuers, other than BANK ONE, that are exchangeable for (whether
on an optional or mandatory basis), or payable in, such shares
(whether such securities are listed on a national securities
exchange or otherwise) or pursuant to which such shares may be
distributed; and
(h) a combination of any such methods of sale or distribution.
In effecting sales, brokers or dealers engaged by the Selling
Stockholder may arrange for other brokers or dealers to participate in such
sales. Brokers or dealers may receive commissions or discounts from the Selling
Stockholder or from the purchasers in amounts to be negotiated immediately prior
to the sale. The Selling Stockholder may also sell the Shares in accordance with
Rule 144 under the Securities Act or pursuant to other exemptions from
registration under the Securities Act.
If the Shares are sold in an underwritten offering, the Shares may be
acquired by the underwriters for their own account and may be further resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The names of the underwriters with respect to any such
offering and the terms of the transactions, including any underwriting
discounts, concessions or commissions and other items constituting compensation
of the underwriters and broker-dealers, if any, will be set forth in a
Prospectus Supplement relating to such offering. Any public offering price and
any discounts, concessions or commissions allowed or reallowed or paid to
broker-dealers may be changed from time to time. Unless otherwise set forth in a
Prospectus Supplement, the obligations of the underwriters to purchase the
Shares will be subject to certain conditions precedent and the underwriters will
be obligated to purchase all the Shares specified in such Prospectus Supplement
if any such Shares are purchased. This Prospectus also may be used by brokers
who borrow the Shares to settle short sales of shares of BANK ONE Common Stock
and who wish to offer and sell such Shares under circumstances requiring use of
the Prospectus or making use of the Prospectus desirable.
From time to time the Selling Stockholder may engage in short sales,
short sales against the box, puts, calls and other transactions in securities of
BANK ONE, or derivatives thereof, and may sell and deliver the Shares in
connection therewith.
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<PAGE>
None of the proceeds from the sales of the Shares by the Selling
Stockholder will be received by BANK ONE. BANK ONE will bear certain expenses in
connection with the registration of the Shares being offered by the Selling
Stockholder, including all costs incident to the offering and sale of the Shares
to the public other than any commissions and discounts of underwriters, dealers
or agents and any transfer taxes.
The Selling Stockholder, and any broker-dealer who acts in connection
with the sale of Shares hereunder, may be deemed to be an "underwriter" as that
term is defined in the Securities Act, and any commissions received by them and
profit on any resale of the Shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act. BANK ONE has
agreed to indemnify the Selling Stockholder, any underwriters and certain other
participants in an underwriting or distribution of the Shares and their
directors, officers, employees and agents against certain liabilities, including
liabilities arising under the Securities Act.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon
for BANK ONE by its General Counsel, Sherman I. Goldberg, Esq. As of October 2,
1998, Mr. Goldberg beneficially owned 407,653 shares of BANK ONE Common Stock
and 217,417 options to purchase additional shares of BANK ONE Common Stock.
EXPERTS
The consolidated financial statements of BANC ONE and its subsidiaries
incorporated in this Prospectus by reference to the BANC ONE Annual Report on
Form 10-K for the year ended December 31, 1997 have been audited by
PricewaterhouseCoopers LLP, independent accountants, as set forth in their
report dated February 12, 1998 accompanying such financial statements, and are
incorporated herein by reference in reliance upon the report of such firm, given
on the authority of said firm as expert in auditing and accounting.
The consolidated financial statements of FCN included in the Annual
Report on Form 10-K for the year ended December 31, 1997 incorporated herein by
reference have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
expert in accounting and auditing in giving said report.
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<PAGE>
The supplemental consolidated financial statements of BANK ONE
appearing in the Current Report on Form 8-K dated October 6, 1998, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their report with respect thereto, and are incorporated herein by reference in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than underwriting
discounts and commissions, payable in connection with the sale and distribution
of the securities being registered. All amounts except the Securities and
Exchange Commission registration fee are estimated.
<TABLE>
<CAPTION>
ITEM AMOUNT
- ---- ------
<S> <C>
Registration fee......................................... $10,514
Blue Sky fees and expenses............................... N/A
Printing and engraving expenses.......................... $10,000
Legal fees and expenses.................................. $10,000
Accounting fees and expenses............................. $ 5,000
Transfer Agent and Registrar fees........................ NONE
Miscellaneous............................................ $ 4,500
Total.............................................. $40,014
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware contains detailed provisions on
indemnification of directors and officers of a Delaware corporation against
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with certain litigation.
The Registrant's Certificate of Incorporation, as amended (the
"Certificate"), provides that the Registrant will indemnify each director,
officer, employee or agent of the Registrant or any individual serving in such a
capacity with another business entity at the Registrant's request (an
"Indemnitee") to the fullest extent permitted by the General Corporation Law of
the State of Delaware ("Delaware Law") or any other applicable laws as presently
or hereinafter in effect against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Indemnitee in connection therewith. The Registrant's Certificate also
authorizes the Registrant to enter into agreements with any person providing for
indemnification greater or different than that provided therein. The
Registrant's Certificate provides that expenses incurred by a director, officer
or employee in defending an action suit or proceeding shall be paid by the
Registrant in advance of the final disposition of such action upon receipt of an
undertaking by or on behalf of such person that he will repay such amount if it
is ultimately determined that
II-1
<PAGE>
he is not entitled to be indemnified by the Registrant. The Registrant's
Certificate and the Delaware Law also provide that the indemnification
provisions of the Registrant's Certificate and the statute are not exclusive of
any other right to which a person seeking indemnification and advancement of
expenses may be entitled under any statute, by-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
The directors and officers of the Registrant are covered by an insurance
policy indemnifying them against certain civil liabilities, including
liabilities under the federal securities laws, which might be incurred by them
in such capacity.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
The following Exhibits are filed herewith or incorporated herein by
reference:
3.1 Certificate of Incorporation of the Company, as amended.
3.2 Bylaws of the Company.
5.1 Opinion of Sherman I. Goldberg, Esq.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Arthur Andersen LLP.
23.4 Consent of Sherman I. Goldberg (contained in Exhibit 5.1).
24.1 Power of Attorney.
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<PAGE>
(b) Financial Statement Schedules
Either not applicable or shown in the financial statements or notes
thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement
(notwithstanding the foregoing, any increase or decrease in the 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 percent change in the
maximum aggregate offering price set forth in the "Calculation of Regitration
Fee" table in the effective Registration Statement); and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
Provided, however, that (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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(4) For purposes of determining any liability under the Securities Act,
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 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.
(5) For purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted as to directors, officers and controlling persons of the
Registrant pursuant to the Delaware General Corporation Law, the Certificate of
Incorporation or the By-laws of Registrant, indemnification agreements entered
into between Registrant and its officers and directors, or otherwise, Registrant
has been advised that in the opinion of the Securities and Exchange Commission
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 Registrant of expenses incurred or
paid by a director, officer, or controlling person of 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, 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing this Registration Statement on Form
S-3 and has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Chicago, Illinois, on October
7, 1998.
BANK ONE CORPORATION
(Registrant)
By /s/ M. Eileen Kennedy
------------------------------------------
M. Eileen Kennedy
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 7, 1998.
Signature Title
--------- -----
/s/ John H. Bryan * Director
- -----------------------------------
John H. Bryan
/s/ Siegfried Buschmann * Director
- -----------------------------------
Siegfried Buschmann
/s/ James S. Crown * Director
- -----------------------------------
James S. Crown
/s/ Bennett Dorrance * Director
- -----------------------------------
Bennett Dorrance
/s/ Dr. Maureen A. Fay, O.P. * Director
- -----------------------------------
Dr. Maureen A. Fay, O.P.
/s/ John R. Hall * Director
- -----------------------------------
John R. Hall
II-5
<PAGE>
/s/ Verne G. Istock * Director
- -----------------------------------
Verne G. Istock
/s/ Laban P. Jackson, Jr. * Director
- -----------------------------------
Laban P. Jackson, Jr.
/s/John W. Kessler * Director
- -----------------------------------
John W. Kessler
/s/ Richard J. Lehmann * Director
- -----------------------------------
Richard J. Lehmann
/s/ William G. Lowrie * Director
- -----------------------------------
William G. Lowrie
/s/ Richard A. Manoogian * Director
- -----------------------------------
Richard A. Manoogian
/s/ William T. McCormick * Director
- -----------------------------------
William T. McCormick
/s/ John B. McCoy * Director and Principal Executive Officer
- -----------------------------------
John B. McCoy
/s/ Thomas E. Reilly, Jr. * Director
- -----------------------------------
Thomas E. Reilly, Jr.
/s/ John W. Rogers, Jr. * Director
- -----------------------------------
John W. Rogers, Jr.
/s/ Thekla R. Shackelford * Director
- -----------------------------------
Thekla R. Shackelford
/s/ Alex Shumate * Director
- -----------------------------------
Alex Shumate
II-6
<PAGE>
/s/ Frederick P. Stratton, Jr. * Director
- -------------------------------------
Frederick P. Stratton, Jr.
/s/ John C. Tolleson * Director
- -------------------------------------
John C. Tolleson
/s/ David J. Vitale * Director
- -------------------------------------
David J. Vitale
/s/ Robert D. Walter * Director
- -------------------------------------
Robert D. Walter
/s/ William J. Roberts * Principal Accounting Officer
- -------------------------------------
William J. Roberts
/s/ Robert A. Rosholt * Principal Financial Officer
- -------------------------------------
Robert A. Rosholt
* The undersigned, by signing her name hereto, does hereby sign this
Registration Statement on behalf of each of the above-indicated directors and
officers of the Registrant pursuant to a power of attorney signed by such
directors and officers.
/s/ M. Eileen Kennedy
--------------------------
M. Eileen Kennedy
Attorney-in-Fact
II-7
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
- ------- -------
3.1 Certificate of Incorporation of the Company, as amended.
3.2 Bylaws of the Company.
5.1 Opinion of Sherman I. Goldberg, Esq.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Arthur Andersen LLP.
23.4 Consent of Sherman I. Goldberg (contained in Exhibit 5.1).
24.1 Power of Attorney.
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
HORNET REORGANIZATION CORPORATION
I, the undersigned, for the purpose of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware, do
hereby execute this Certificate of Incorporation and do hereby certify as
follows:
ARTICLE I
---------
The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
Hornet Reorganization Corporation.
ARTICLE II
----------
The address of the Corporation's registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street in the City of Wilmington,
County of New Castle. The name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III
-----------
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
-1-
<PAGE>
ARTICLE IV
----------
Section 1. The Corporation shall be authorized to issue 2,000 shares of
capital stock, of which 1,000 shares shall be shares of Common Stock, without
par value ("Common Stock"), and 1,000 shares shall be shares of Preferred Stock,
without par value ("Preferred Stock").
Section 2. Shares of Preferred Stock may be issued from time to time in one or
more series. The Board (as defined below) is hereby authorized to fix the voting
rights, if any, designations, powers, preferences and the relative,
participation, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, of any unissued series of Preferred Stock;
and to fix the number of shares constituting such series, and to increase or
decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding).
Section 3. Except as otherwise provided by law or by the resolution or
resolutions adopted by the Board designating the rights, powers and preferences
of any series of Preferred Stock, the Common Stock shall have the exclusive
right to vote for the election of directors and for all other purposes. Each
share of Common Stock shall have one vote, and the Common Stock shall vote
together as a single class.
ARTICLE V
---------
Unless and except to the extent that the By-Laws of the Corporation shall so
require, the election of directors of the Corporation need not be by written
ballot.
-2-
<PAGE>
ARTICLE VI
----------
In furtherance and not in limitation of the powers conferred by law, the Board
of Directors of the Corporation (the "Board") is expressly authorized and
empowered to make, alter and repeal the By-Laws of the Corporation by a majority
vote at any regular or special meeting of the Board or by written consent,
subject to the power of the stockholders of the Corporation to alter or repeal
any By-Laws made by the Board.
ARTICLE VII
-----------
The Corporation reserves the right at any time from time to time to amend,
alter, change or repeal any provisions contained in this Certificate of
Incorporation, and any other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article.
ARTICLE VIII
------------
Section 1. Elimination of Certain Liability of Directors. A director of the
---------------------------------------------
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the General Corporation Law of the State of Delaware of the same
exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph shall not adversely affect
any right or protection of a director of the Corporation existing hereunder with
respect to any act or omission occurring prior to such repeal or modification.
Section 2. Indemnification and Insurance.
-----------------------------
(a) Right to Indemnification. Each person who was or is made a party or is
------------------------
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, to
the fullest extent permitted by law, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines,
amounts paid or to be paid in settlement, and excise
-3-
<PAGE>
taxes or penalties arising under the Employee Retirement Income Security Act of
1974) reasonably incurred or suffered by such person in connection therewith and
such indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that, except as
provided in paragraph (b) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board. The right to indemnification conferred in this Section
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the General Corporation Law
of the State of Delaware requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to any employee
benefit plan) in advance of the final disposition of a proceeding, shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may, by action of the Board, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of this
-------------------------------
Section is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the Corporation (including its Board, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the payment of
-------------------------
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Section shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-law, agreement, vote of stockholders or
disinterested directors or otherwise.
-4-
<PAGE>
(d) Insurance. The Corporation may maintain insurance, at its expense, to
---------
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the General Corporation Law of the State of Delaware.
ARTICLE IX
----------
The name and mailing address of the incorporator is Lawrence S. Makow, Esq., c/o
Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019.
-5-
<PAGE>
IN WITNESS WHEREOF, I, the undersigned, being the incorporator hereinbefore
named, do hereby further certify that the facts hereinabove stated are truly set
forth and, accordingly, I have hereunto set my hand this 9/th/ day of April,
1998.
/s/ Lawrence S. Makow
- ---------------------
Lawrence S. Makow
Incorporator
-6-
<PAGE>
CERTIFICATE OF AMENDMENT
TO
THE CERTIFICATE OF INCORPORATION
OF
HORNET REORGANIZATION CORPORATION
(Pursuant to Section 242 of the General Corporation Law of the State of
Delaware)
_____________
Hornet Reorganization Corporation (the "Company"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Company, by unanimous written
consent dated June 2, 1998, adopted a resolution setting forth the following
amendments to the Certificate of Incorporation of the Company (the "Certificate
of Incorporation") and declaring said amendments to be advisable. The
resolutions setting forth the proposed amendments are as follows:
RESOLVED, that the Certificate of Incorporation shall be amended by
changing the first sentence of Article I of the Certificate of Incorporation so
that, as amended, such Article shall read in its entirety as follows:
"The name of the corporation (which is hereinafter referred to as the
`Corporation') is:
BANC ONE CORPORATION (DE)."
RESOLVED, further, that the Certificate of Incorporation shall be amended
by changing the first sentence of Article IV of the Certificate of Incorporation
so that, as amended, such sentence shall read in its entirety as follows:
"The Corporation shall be authorized to issue two billion five hundred
and fifty million (2,550,000,000) shares of capital stock, of which
two billion five hundred million (2,500,000,000) shares shall be shares of
Common Stock, par value $.01 per share ("Common Stock"), and fifty
million (50,000,000) shares shall be shares of Preferred Stock, par
value $.01 per share ("Preferred Stock").
SECOND: That thereafter, in accordance with Section 228 of the General
Corporation Law of the State of Delaware, the sole stockholder of the Company
executed a consent in writing approving the Amendments, which was delivered by
hand to the Company to its principal place of business at 100 East Broad Street,
Columbus, Ohio 43271.
-7-
<PAGE>
THIRD: That the amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Hornet Reorganization Corporation has caused
this Certificate of Amendment to be signed by Michael J. McMennamin, its Vice
President, and attested to by Steven Allen Bennett, its Secretary, dated as of
this 29/th/ day of May, 1998.
ATTEST: HORNET REORGANIZATION CORPORATION
BY: /s/ Steven Allen Bennett BY: /s/ Michael J. McMennamin
Name: Steven Allen Bennett Name: Michael J. McMennamin
Title: Secretary Title: Vice President
-8-
<PAGE>
CERTIFICATE OF AMENDMENT
TO
THE CERTIFICATE OF INCORPORATION
OF
BANC ONE CORPORATION (DE)
(Pursuant to Section 242 of the General Corporation Law of the State of
Delaware) BANC ONE CORPORATION (DE) (the "Company"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Company, by unanimous written consent
dated July 6, 1998, adopted a resolution setting forth the following amendment
to the Certificate of Incorporation of the Company (the "Certificate of
Incorporation") and declaring said amendment to be advisable. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation shall be amended by changing the
first sentence of Article I of the Certificate of Incorporation so that, as
amended, such Article shall read in its entirety as follows:
"The name of the corporation (which is hereinafter referred to as the
`Corporation') is:
BANK ONE CORPORATION"
SECOND: That thereafter, in accordance with Section 228 of the General
Corporation Law of the State of Delaware, the sole stockholder of the Company
executed a consent in writing approving the Amendment, which was delivered by
hand to the Company to its principal place of business at 100 East Broad Street,
Columbus, Ohio 43271.
THIRD: That the amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said BANC ONE CORPORATION (DE) has caused this Certificate
of Amendment to be signed by Michael J. McMennamin, its Vice President, and
attested to by Steven A. Bennett, its Secretary, dated as of this 13/th/ day of
July, 1998.
ATTEST: BANC ONE CORPORATION (DE)
BY:/s/ Steven A. Bennett BY: /s/ Michael J. McMennamin
--------------------------- -------------------------------
Steven A. Bennett Michael J. McMennamin
Secretary Vice President
-9-
<PAGE>
CERTIFICATE OF MERGER
BANC ONE CORPORATION
INTO
BANK ONE CORPORATION
Pursuant to Title 8, Section 252 of the General Corporation Law of the
State of Delaware ("DGCL"), BANC ONE CORPORATION, a corporation organized and
existing under the laws of the State of Ohio ("BANC ONE"), and BANK ONE
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware and a wholly-owned subsidiary of BANC ONE ("BANK ONE"), do hereby
certify to the following facts relating to the merger (the "Merger") of BANC ONE
with and into BANK ONE.
FIRST: The name and state of incorporation of each constituent entity
that is a party to the Merger is as follows:
Name State of Incorporation
---- ----------------------
BANC ONE CORPORATION Ohio
BANK ONE CORPORATION Delaware
SECOND: An Agreement and Plan of Reorganization, dated as of April
10, 1998, as amended (the "Agreement "), by and between BANC ONE, BANK ONE, and
First Chicago NBD Corporation, a Delaware corporation, has been approved,
adopted, certified, executed and acknowledged by each of the constituent
corporations in accordance with Section 252(c) of the DGCL.
THIRD: The name of the surviving corporation, which will be a
Delaware corporation, is "BANK ONE CORPORATION" (the "Surviving Corporation").
FOURTH: The certificate of incorporation of the Surviving Corporation
shall be the Certificate of Incorporation of BANK ONE with such amendments as
are set forth on Exhibit A attached hereto.
FIFTH: The authorized capital stock of BANC ONE CORPORATION, the Ohio
corporation, consists of 950,000,000 shares of Common Stock, without par value,
10,000,000 shares of Class A Preferred Stock, without par value, 1,000,000
shares of Class B Convertible Preferred Stock, without par value, and 24,000,000
shares of Class C Preferred Stock, without par value.
-10-
<PAGE>
SIXTH: The executed Agreement is on file at the office of the
Surviving Corporation at the following address:
BANK ONE CORPORATION
One First National Plaza
Chicago, Illinois 60670
SEVENTH: A copy of the Agreement will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of any constituent
corporation.
IN WITNESS WHEREOF, BANK ONE and BANC ONE have caused this Certificate
of Merger to be duly executed as of this 1st day of October, 1998 to be
effective at 12:01 a.m. on October 2, 1998.
ATTEST: BANC ONE CORPORATION
By: /s/ Steven A. Bennett By: /s/ John B. McCoy
------------------------ ---------------------
Name: Steven A. Bennett Name: John B. McCoy
Title: Secretary Title: Chairman and Chief
Executive Officer
ATTEST: BANK ONE CORPORATION
By: /s/ Steven A. Bennett By: /s/ John B. McCoy
------------------------
Name: Steven A. Bennett Name: John B. McCoy
Title: Secretary Title: Chairman, President and
Chief Executive Officer
-11-
<PAGE>
AMENDMENTS TO CERTIFICATE OF INCORPORATION
OF
BANK ONE CORPORATION
1. ARTICLE FOURTH OF THE CERTIFICATE OF INCORPORATION OF THE CORPORATION
IS HEREBY DELETED AND THE FOLLOWING IS SUBSTITUTED THEREFOR:
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is two billion five hundred fifty
million (2,550,000,000) shares which shall be divided into two classes as
follows:
(a) Two billion five hundred million (2,500,000,000) shares of common
stock, par value $0.01 per share ("Common Stock"); and
(b) Fifty million (50,000,000) shares of preferred stock, par value $0.01
per share ("Preferred Stock").
The designations, voting powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions of the above classes of stock and other general provisions relating
thereto shall be as follows:
PART I
PREFERRED STOCK
(a) Shares of Preferred Stock may be issued in one or more series at such
time or times and for such consideration or considerations as the Board of
Directors may determine. All shares of any one series shall be of equal rank and
identical in all respects except that the dates from which dividends accrue or
accumulate with respect thereto may vary.
(b) The Board of Directors is expressly authorized at any time, and from
time to time, to provide for the issuance of shares of Preferred Stock in one or
more series, with such voting powers, full or limited, or without voting powers,
and with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the resolution or resolutions providing for
the issue thereof adopted by the Board of Directors, and as are not stated and
expressed in this Certificate of Incorporation, or any amendment thereto,
including (but without limiting the generality of the foregoing) the following:
(i) The distinctive designation and number of shares comprising such
series, which number may (except where otherwise provided by the Board of
Directors in creating such series) be increased or decreased (but not below the
number of shares then outstanding) from time to time by action of the Board of
Directors.
-12-
<PAGE>
(ii) The dividend rate or rates on the shares of such series and the
relation which such dividends shall bear to the dividends payable on any other
class of capital stock or on any other series of Preferred Stock, the terms and
conditions upon which and the periods in respect of which dividends shall be
payable, whether and upon what conditions such dividends shall be cumulative
and, if cumulative, the date or dates from which dividends shall accumulate.
(iii) Whether the shares of such series shall be redeemable, and, if
redeemable, whether redeemable for cash, property or rights, including
securities of any other corporation, at the option of either the holder or the
corporation or upon the happening of a specified event, the limitations and
restrictions with respect to such redemption, the time or times when, the price
or prices or rate or rates at which, the adjustments with which and the manner
in which such shares shall be redeemable, including the manner of selecting
shares of such series for redemption if less than all shares are to be redeemed.
(iv) The rights to which the holders of shares of such series shall
be entitled, and the preferences, if any, over any other series (or of any other
series over such series), upon the voluntary or involuntary liquidation,
dissolution, distribution or winding up of the corporation, which rights may
vary depending on whether such liquidation, dissolution, distribution or winding
up is voluntary or involuntary, and, if voluntary, may vary at different dates.
(v) Whether the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund, and, if so, whether and
upon what conditions such purchase, retirement or sinking fund shall be
cumulative or noncumulative, the extent to which and the manner in which such
fund shall be applied to the purchase or redemption of the shares of such series
for retirement or to other corporate purposes and the terms and provisions
relative to the operation thereof.
(vi) Whether the shares of such series shall be convertible into or
exchangeable for shares of any other class or of any other series of any class
of capital stock of the corporation, and, if so convertible or exchangeable, the
price or prices or the rate or rates of conversion or exchange and the method,
if any, of adjusting the same, and any other terms and conditions of such
conversion or exchange.
(vii) The voting powers, full and/or limited, if any, of the shares
of such series, and whether and under what conditions the shares of such series
(alone or together with the shares of one or more other series having similar
provisions) shall be entitled to vote separately as a single class, for the
election of one or more additional directors of the corporation in case of
dividend arrearages or other specified events, or upon other matters.
(viii) Whether the issuance of any additional shares of such series,
or of any shares of any other series, shall be subject to restrictions as to
issuance, or as to the powers, preferences or rights of any such other series.
(ix) Any other preferences, privileges and powers and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions of such series, as the Board of Directors may deem advisable and
as shall not be inconsistent with the provisions of this Certificate of
Incorporation.
-13-
<PAGE>
(c) Unless and except to the extent otherwise required by law or
provided in the resolution or resolutions of the Board of Directors creating any
series of Preferred Stock pursuant to this Part I, the holders of the Preferred
Stock shall have no voting power with respect to any matter whatsoever. In no
event shall the Preferred Stock be entitled to more than one vote in respect of
each share of stock.
(d) Shares of Preferred Stock redeemed, converted, exchanged,
purchased, retired or surrendered to the corporation, or which have been issued
and reacquired in any manner, may, upon compliance with any applicable
provisions of the General Corporation Law of the State of Delaware, be given the
status of authorized and unissued shares of Preferred Stock and may be reissued
by the Board of Directors as part of the series of which they were originally a
part or may be reclassified into and reissued as part of a new series or as a
part of any other series, all subject to the protective conditions or
restrictions of any outstanding series of Preferred Stock.
(e) Pursuant to the authority conferred by this Article FOURTH upon
the Board of Directors, the two series of Preferred Stock described in Annexes A
and B, which are attached hereto and incorporated herein by reference, have been
designated by the Board of Directors, each such series consisting of such number
of shares, and having such relative rights, preferences and limitations thereof
as are stated and expressed in such Annexes A and B with respect to such series.
PART II
COMMON STOCK
(a) Except as otherwise required by law or by any amendment to this
Certificate of Incorporation, each holder of Common Stock shall have one vote
for each share of stock held by him on all matters voted upon by the
stockholders.
(b) Subject to the preferential dividend rights, if any, applicable to
shares of Preferred Stock and subject to applicable requirements, if any, with
respect to the setting aside of sums for purchase, retirement or sinking funds
for Preferred Stock, the holders of Common Stock shall be entitled to receive,
to the extent permitted by law, such dividends as may be declared from time to
time by the Board of Directors.
(c) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the corporation, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of shares of Preferred Stock, holders of Common Stock shall be
entitled to receive all of the remaining assets of the corporation of whatever
kind available for distribution to stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively. The Board of
Directors may distribute in kind to the holders of Common Stock such remaining
assets of the corporation, or may sell, transfer, or otherwise dispose of all or
any part of such remaining assets to any corporation, trust or entity, or any
combination thereof, and may sell all or any part of the consideration so
received and distribute any balance thereof in kind to holders of Common Stock.
The merger or consolidation of the corporation into or with any other
corporation, or the merger of any other corporation into it, or any purchase or
redemption of shares of stock of the corporation of any class, shall not be
deemed to be a dissolution, liquidation or winding up of the corporation for the
purposes of this paragraph.
-14-
<PAGE>
(d) Such numbers of shares of Common Stock as may from time to time be
required for such purpose shall be reserved for issuance (i) upon conversion of
any shares of Preferred Stock or any obligation of the corporation convertible
into shares of Common Stock which is at the time outstanding or issuable upon
exercise of any options or warrants at the time outstanding and (ii) upon
exercise of any options or warrants at the time outstanding to purchase shares
of Common Stock.
PART III
GENERAL PROVISIONS
(a) At any meeting of stockholders, the presence in person or by proxy
of the holders of record of a majority of the outstanding shares of stock of the
corporation entitled to be voted at such meeting shall constitute a quorum for
all purposes, except as otherwise provided by this Certificate of Incorporation
or required by applicable law.
(b) Subject to the protective conditions or restrictions of any
outstanding series of Preferred Stock, any amendment to this Certificate of
Incorporation which shall increase or decrease the authorized capital stock of
any class or classes may be adopted by the affirmative vote of the holders of a
majority of the stock of the corporation entitled to vote.
(c) No holder of stock of any class of the corporation shall be
entitled as a matter of right to purchase or subscribe for any part of any
unissued stock of any class, or of any additional stock of any class of capital
stock of the corporation, or of any bonds, certificates of indebtedness,
debentures, or other securities, whether or not convertible into stock of the
corporation, now or hereafter authorized, but any such stock or other securities
may be issued and disposed of pursuant to resolution by the Board of Directors
to such persons, firms, corporations or associations and upon such terms and for
such consideration (not less than the par value or stated value thereof) as the
Board of Directors in the exercise of its discretion may determine and may be
permitted by law without action by the stockholders. The Board of Directors may
provide for payment therefor to be received by the corporation in cash, personal
property, real property (or leases thereof) or services. Any and all shares of
stock so issued for which the consideration so fixed has been paid or delivered,
shall be deemed fully paid and not liable to any further call or assessment.
2. ARTICLE NINTH OF THE CERTIFICATE OF INCORPORATION OF THE
CORPORATION IS HEREBY REDESIGNATED AS ARTICLE FOURTEENTH THEREOF; ARTICLES
FIFTH, SIXTH, SEVENTH, AND EIGHTH OF THE CERTIFICATE OF INCORPORATION OF THE
CORPORATION ARE HEREBY DELETED AND THE FOLLOWING IS HEREBY INSERTED IMMEDIATELY
FOLLOWING ARTICLE FOURTH AND BEFORE ARTICLE FOURTEENTH:
FIFTH. Subject to any provision contained in any resolution of the
Board of Directors adopted pursuant to Part I of Article Fourth of this
Certificate of Incorporation requiring an increase or increases in the number of
directors, the number of directors constituting the Board of Directors shall be
that number as shall be fixed from time to time in the manner provided by
Article Tenth of this Certificate of Incorporation and by By-laws in conformity
therewith. Election of directors need not be by written ballot unless the By-
laws of the corporation shall so provide.
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In addition to all of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter or repeal the By-laws of the
corporation.
Wherever the term "Board of Directors" is used in this Certificate of
Incorporation, such term shall mean the Board of Directors of the corporation;
provided, however, that, to the extent any committee of directors of the
corporation is lawfully entitled to exercise the powers of the Board of
Directors, such committee may exercise any right or authority of the Board of
Directors under this Certificate of Incorporation.
SIXTH. No contract or transaction between the corporation and one or
more of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(a) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or
(b) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
SEVENTH. (a) The corporation shall indemnify any person who was or
is a party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he is or was a director, officer or
employee of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment) or any other applicable laws as presently or hereinafter in
effect against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
therewith. Without limiting the generality of the foregoing, the corporation may
enter into one or more agreements with any person that provide for
indemnification greater or different than that provided in this Article Seventh.
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(b) Expenses incurred by a director, officer or employee in defending
a civil or criminal action, suit or proceeding shall be paid by the corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of the director, officer or employee
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation.
(c) The indemnification and advancement of expenses provided by this
Article shall not be deemed exclusive of any other rights to which a person
seeking indemnification and advancement of expenses may be entitled under any
statute, by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefits of the
heirs, executors and administrators of such a person.
(d) For the purposes of this Article Seventh, references to "the
corporation" include, in addition to the resulting or surviving corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article Seventh
with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had continued.
(e) Neither the corporation nor its directors or officers nor any
person acting on its behalf shall be liable to any person for any determination
as to the existence or absence of conduct that would provide a basis for making
or refusing to make any payment under this Article Seventh, in reliance upon the
advice of counsel.
(f) A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholder, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which the director derived
any improper personal benefit. If the General Corporation Law of the State of
Delaware is hereafter amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
(g) Neither the amendment nor repeal of this Article Seventh, nor the
adoption of any provision of this Certificate of Incorporation inconsistent with
this Article Seventh, shall eliminate or reduce the effect of this Article
Seventh in respect of any matter
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occurring, or any cause of action, suit or claim that would accrue or arise,
prior to such amendment, repeal or adoption of an inconsistent provision.
EIGHTH. The corporation shall have perpetual existence.
NINTH. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the laws of Delaware, and all rights
conferred herein upon stockholders and directors are granted subject to this
reservation.
TENTH. Board of Directors.
(a) Number, Election and Terms of Directors: The business and affairs
of the corporation shall be managed by or under the direction of a Board of
Directors. The number of the directors of the corporation shall be fixed from
time to time by resolution adopted by the affirmative vote of a majority of the
entire Board of Directors of the corporation, except that the minimum number of
directors shall be fixed at no less than eleven (11) and the maximum number of
directors shall be fixed at no more than thirty (30). At each annual meeting of
stockholders, successors of the directors shall be elected for a term expiring
at the annual meeting next following such annual meeting.
(b) Stockholder Nomination of Director Candidates: Nominations for
election to the Board of Directors of the corporation at a meeting of
stockholders may be made by the Board of Directors, on behalf of the Board of
Directors by any nominating committee appointed by the Board of Directors, or by
any stockholder of the corporation entitled to vote for the election of
directors at the meeting. Nominations, other than those made by or on behalf of
the Board of Directors, shall be made by notice in writing delivered to or
mailed, postage prepaid, and received by the Secretary of the corporation at
least 60 days but no more than 90 days prior to the anniversary date of the
immediately preceding Annual Meeting of Stockholders. The notice shall set
forth (i) the name and address of the stockholder who intends to make the
nomination; (ii) the name, age, business address and, if known, residence
address of each nominee; (iii) the principal occupation or employment of each
nominee; (iv) the number of shares of stock of the corporation which are
beneficially owned by each nominee and by the nominating stockholder; (v) any
other information concerning the nominee that must be disclosed of nominees in
proxy solicitation pursuant to Regulation 14A of the Securities Exchange Act of
1934 (or any subsequent provisions replacing such Regulation); and (vi) the
executed consent of each nominee to serve as a director of the corporation, if
elected. The chairman of the meeting of stockholders may, if the facts warrant,
determine that a nomination was not made in accordance with the foregoing
procedures, and if the chairman should so determine, the chairman shall so
declare to the meeting and the defective nomination shall be disregarded.
(c) Newly Created Directorships and Vacancies: Newly created
directorships resulting from any increase in the number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum, or by a sole remaining director. A director, including any director
chosen to fill a newly created directorship or any vacancy, shall hold office
until the next annual meeting following his election or appointment to the Board
of Directors, as applicable, and until such director's successor shall have been
elected and qualified. In
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no case will a decrease in the number of directors shorten the term of any
incumbent director.
(d) Preferred Stock: Notwithstanding the foregoing paragraphs,
whenever the holders of any one or more classes or series of Preferred Stock
issued by the corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of the Certificate of Incorporation
applicable thereto. The then authorized number of directors of the corporation
shall be increased by the number of additional directors to be elected, and such
directors so elected shall not be divided into classes pursuant to this Article
Tenth unless expressly provided by such terms.
ELEVENTH. Stockholder Action.
Any action required or permitted to be taken by any stockholders of
the corporation must be effected at a duly called annual or special meeting of
such stockholders and may not be effected by any consent in writing by such
stockholders. Except as may be otherwise required by law, special meetings of
stockholders of the corporation may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the Board of Directors.
Notwithstanding anything contained in this Certificate of Incorporation or the
By-laws of the corporation to the contrary, the affirmative vote of at least 80%
of the voting power of all the shares of the corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to alter, amend or adopt any provision inconsistent with the purpose
and intent of this Article Eleventh.
TWELFTH. (a) In addition to any affirmative vote required by law or
by or under this Certificate of Incorporation or the By-laws and except as
otherwise expressly herein provided in this Article Twelfth, the approval or
authorization of a Business Combination (which together with certain other terms
used in this Article, are hereinafter defined) shall require the affirmative
vote of a majority of the voting power of all the shares of Voting Stock held by
stockholders other than an Interested Stockholder, with which or by or on whose
behalf, directly or indirectly, a Business Combination is proposed, voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a lesser
percentage or separate class vote may be otherwise required.
(b) The provisions of paragraph (a) of this Article Twelfth shall not
be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required by
law or by or under any other provision of this Certificate of Incorporation, or
the By-laws of the corporation, or otherwise, if all the conditions specified in
either of the following paragraphs First or Second are met:
First: The Business Combination shall have been approved by a
majority (whether such approval is made prior to or subsequent to the
acquisition of beneficial ownership of the Voting Stock that caused the
Interested Stockholder to become an Interested Stockholder) of the Continuing
Directors; or
Second: All of the following conditions shall have been met:
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(1) The aggregate amount of the cash, and the Fair Market Value as of
the date of the consummation of the Business Combination of consideration other
than cash, to be received per share by holders of Common Stock in such Business
Combination shall be at least equal to the highest amount determined under
subparagraphs (i) and (ii) below:
(i) The highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by or on behalf
on the Interested Stockholder for any shares of Common Stock in connection with
the acquisition by the Interested Stockholder of beneficial ownership of shares
of Common Stock (a) within the two-year period immediately prior to the first
public announcement of the proposed Business Combination (the "Announcement
Date") or (b) in the transaction in which it became an Interested Stockholder,
whichever is higher; and
(ii) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became an
Interested Stockholder (the "Determination Date"), whichever is higher.
All per share prices shall be adjusted to reflect any intervening
stock splits, stock dividends, and reverse stock splits.
(2) The aggregate amount of the cash, and the Fair Market Value as of
the date of the consummation of the Business Combination of consideration other
than cash, to be received per share by holders of shares of any class or series
of outstanding Voting Stock, other than Common Stock, shall be at least equal to
the highest amount determined under clauses (i), (ii), and (iii) below.
(i) The highest per share price (including any brokerage
commissions, transfer taxes, and soliciting dealers' fees) paid by or on behalf
of the Interested Stockholder for any share of such class or series of Voting
Stock in connection with the acquisition by the Interested Stockholder of
beneficial ownership of shares of such class or series of Voting Stock (a)
within the two-year period immediately prior to the Announcement Date or (b) in
the transaction in which it became an Interested Stockholder, whichever is
higher.
(ii) The Fair Market Value per share of such class or series of
Voting Stock on the Announcement Date or on the Determination Date, whichever is
higher; and
(iii) The highest preferential amount per share to which the
holders of shares of such class or series of Voting Stock would be entitled, if
any, in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the corporation, regardless of whether the Business Combination to
be consummated constitutes such an event.
All per share prices shall be adjusted for intervening stock splits,
stock dividends, and reverse stock splits.
The provisions of this paragraph 2 shall be required to be met with
respect to every class or series of outstanding Voting Stock, whether or not the
Interested Stockholder has previously acquired beneficial ownership of any
shares of a particular class or series of Voting Stock.
(3) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (i)
except as approved by a majority of the Continuing Directors, there shall have
been no failure to declare and pay at the regular date therefor any full
periodic dividends (whether or not cumulative) in
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accordance with the terms of any outstanding Preferred Stock; (ii) there shall
have been (a) no reduction in the annual rate of dividend paid on the Common
Stock (except as necessary to reflect any stock split, stock dividend or
subdivision of the Common Stock), except as approved by a majority of the
Continuing Directors, and (b) an increase in such annual rate of dividends as
necessary to reflect any reclassification (including any reverse stock split),
recapitalization, reorganization, or any similar transaction which has the
effect of reducing the number of outstanding shares of Common Stock, unless the
failure so to increase such annual rate is approved by a majority of the
Continuing Directors, and (iii) such Interested Stockholder shall have not
become the beneficial owner of any additional shares of Voting Stock except as
part of the transaction which results in such Interested Stockholder becoming an
Interested Stockholder and except in a transaction that, after giving effect
thereto, would not result in any increase in the Interested Stockholder's
percentage of beneficial ownership of any class or series of capital stock.
(4) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges, or other financial assistance or any tax credits
or other tax advantages provided by the corporation, whether in anticipation of
or in connection with such Business Combination or otherwise.
(5) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to stockholders of the
corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to such Act or subsequent provisions).
(6) Such Interested Stockholder shall not have made any major change
in the corporation's business or equity capital structure without the approval
of a majority of the Continuing Directors.
(c) For the purposes of this Article Twelfth:
(i) The term "Business Combination" shall mean:
(A) any merger or consolidation of the corporation or any Subsidiary
(as hereinafter defined) with (x) any Interested Stockholder or (y) any other
company (whether or not such other company is an Interested Stockholder) which
is, or after such merger or consolidation would be, an Affiliate or Associate of
an Interested Stockholder; or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition or security arrangement, investment, loan, advance, guarantee,
agreement to purchase, agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a series of
transactions) with or for the benefit of any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder involving any Substantial
Part of the assets, securities or commitments of the corporation, any Subsidiary
or any Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
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(C) the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of any Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder; or
(D) any reclassification of securities (including any reverse stock
split), or recapitalization of the corporation or any merger or consolidation of
the corporation with any of its Subsidiaries or any other transaction (whether
or not with or otherwise involving an Interested Stockholder) that has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class or series of Voting Stock, or any securities
convertible into Voting Stock, or into equity securities of any Subsidiary, that
is beneficially owned by an Interested Stockholder or any Affiliate or Associate
of any Interested Stockholder; or
(E) any agreement, contract, or other arrangement providing for any
one or more of the actions specified in the foregoing clauses (a) through (d).
(ii) The term "Voting Stock" shall mean all outstanding shares
of capital stock of the corporation of whatever class or series which is
entitled to vote under any circumstances in the election of directors of the
corporation.
(iii) A "person" shall mean any individual, firm, corporation,
partnership, trust or other entity and shall include any group comprised of any
person and any other person with whom such person or any Affiliate or Associate
of such person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting, or disposing of
Voting Stock.
(iv) "Interested Stockholder" shall mean any person (other than
the corporation or any Subsidiary and other than any profit-sharing, employee
stock ownership or other employee benefit plan of the corporation or any
Subsidiary or any trustee of or fiduciary with respect to any such plan when
acting in such capacity) who or which:
(A) is a person who is the beneficial owner, directly or indirectly,
of more than 10% of the voting power of the then outstanding Voting Stock; or
(B) is an Affiliate or Associate of the corporation and at any time
within the two-year period immediately prior to the date in question was the
beneficial owner of 10% or more of the voting power of the then outstanding
Voting Stock; or
(C) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period immediately prior
to the date in question beneficially owned by any Interested Stockholder, if
such assignment or succession shall have occurred in the course of a transaction
or series of transactions not involving a public offering within the meaning of
the Securities Act of 1933, as amended.
(v) A person shall be a "beneficial owner" of any Voting Stock:
(A) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(B) which such person or any of its Affiliates or Associates has (1)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (2) the right to vote pursuant to any
agreement, arrangement or understanding; or
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(C) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of any shares of Voting Stock. For the purposes of
determining whether a person is an Interested Stockholder pursuant to paragraph
(c)(iv) of this Article, the number of shares of capital stock deemed to be
outstanding shall include shares deemed beneficially owned by such person
through application of paragraph (c)(v) of this Article but shall not include
any other shares of Voting Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(vi) An "Affiliate" of, or a person "affiliated" with, a specified
person, is a person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the person specified.
(vii) "Associate" used to indicate a relationship with any person,
means (1) any corporation or organization (other than the corporation or a
majority-owned subsidiary of the corporation) of which such person is an officer
or partner or is, directly or indirectly, the beneficial owner of 10% or more of
any class of equity securities, (2) any trust or other estate in which such
person has a substantial beneficial interest or as to which such person serves
as trustee or in a similar fiduciary capacity, and (3) any relative or spouse of
such person, or any relative of such spouse, who has the same home as such
person.
(viii) "Subsidiary" means any company of which a majority of any
class of equity security is owned, directly or indirectly, by the corporation.
(ix) The term "Substantial Part" shall mean an amount equal to or
greater than an amount equal to fifteen (15) percent of the stockholders' equity
of the corporation as reflected in the most recent fiscal year-end consolidated
balance sheet of the corporation.
(x) "Continuing Director" means any member of the Board of
Directors of the corporation (the "Board") while such person is a member of the
Board, who is not an Affiliate or Associate or representative of the Interested
Stockholder and was a member of the Board prior to the time that the Interested
Stockholder became an Interested Stockholder, and any successor of a Continuing
Director, while such successor is a member of the Board, who is not an Affiliate
or Associate or representative of the Interested Stockholder and is recommended
to succeed the Continuing Director by a majority of Continuing Directors then on
the Board.
(xi) "Fair Market Value" means (a) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape
for the New York Stock Exchange, or if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or if such
stock is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations are
available, the
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Fair Market Value on the date in question of a share of such stock as determined
by a majority of the Continuing Directors in good faith and (b) in the case of
property other than cash or stock, the Fair Market Value of such property on the
date in question as determined in good faith by a majority of Continuing
Directors then on the Board.
(xii) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be received"
as used in paragraphs (b) Second (1) and (2) of this Article shall include the
shares of Common Stock and/or the shares of any other class of outstanding
Voting Stock retained by the holders of such shares.
(d) The Board shall have the power and duty to determine for the purposes
of this Article Twelfth, on the basis of information known to it after
reasonable inquiry (i) whether a person is an Interested Stockholder; (ii) the
number of shares of Voting Stock beneficially owned by any person; (iii) whether
a person is an Affiliate or Associate of another; (iv) whether the requirements
of paragraph (b) Second of this Article have been met with respect to any
Business Combination; and (v) whether any sale, lease, exchange, mortgage,
pledge, transfer or other disposition or security arrangement, investment, loan,
advance, guarantee, agreement to purchase, agreement to pay, extension of
credit, joint venture participation or other arrangement (in one transaction or
a series of transactions) with or for the benefit of any Interested Stockholder
or any Affiliate or Associate of any Interested Stockholder involving any
assets, securities or commitments of the corporation, any Subsidiary, or any
Interested Stockholder, or any Affiliate or Associate of any Interested
Stockholder constitutes a Substantial Part. Any such determination made in good
faith shall be binding and conclusive on all parties.
(e) The Board of Directors shall not approve, adopt or recommend any
proposal to enter into a Business Combination, or any offer of any person, other
than the corporation, to make a tender or exchange offer for any capital stock
of the corporation, unless and until the Board of Directors shall first
establish a procedure for evaluating, and shall have evaluated, the proposal or
offer, and determined that it would be in compliance with all applicable laws
and in the best interests of the corporation and its stockholders. In connection
with its evaluation, the Board of Directors may seek and obtain the advice of
independent investment counsel, may seek and rely upon an opinion of legal
counsel and other independent advisers, and may test such compliance with laws
in any state or federal court or before any state or federal administrative
agency which may have appropriate jurisdiction. In connection with its
evaluation as to the best interests of the corporation and its stockholders, the
Board of Directors shall consider all factors which it deems relevant, or the
stockholders might deem relevant, including without limitation: (i) the adequacy
and fairness of the consideration to be received by the corporation and/or its
stockholders considering the future prospects for the corporation and its
business, historical trading prices of the corporation's capital stock, the
price that might be achieved in a negotiated sale of the corporation as a whole,
and premiums over trading prices which have been proposed or offered with
respect to the securities of other companies in the past in connection with
similar offers; (ii) the business, financial condition and earnings prospects of
the acquiring person or entity and the competence, experience and integrity of
the acquiring person or entity and their or its management, and (iii) the
potential social and economic impact of the offer and its consummation on the
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communities in which the corporation and its subsidiaries operate or are located
and upon the corporation, its subsidiaries, and their employees, depositors, and
loan and other customers.
(f) The Board of Directors shall not approve, adopt or recommend any offer
of any person, other than the corporation, to make a tender or exchange offer
for any capital stock of the corporation in which the Fair Market Value per
share of the consideration to be received by one or more stockholders is
substantially more than the Fair Market Value per share of the consideration to
be received by other stockholders holding shares of the same class and series,
or any tender or exchange offer the consummation of which is reasonably likely,
in the good faith determination of the Board of Directors, in one transaction or
a series of transactions, to have that result.
(g) Nothing contained in this Article Twelfth shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
(h) The fact that any Business Combination complies with the provisions of
paragraph (b)(2) of this Article Twelfth shall not be construed to impose any
fiduciary duty, obligation, or responsibility on the Board of Directors, or any
member thereof, to approve such Business Combination or recommend its adoption
or approval to the stockholders of the corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
(i) Notwithstanding any other provisions of this Certificate of
Incorporation or the By-laws of the corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, this Certificate of
Incorporation or the By-laws of the corporation), the affirmative vote of the
holders of at least 80% of the voting power of all the shares of the Voting
Stock, voting together as a single class, shall be required to alter, amend or
adopt any provisions inconsistent with or to repeal this Article Twelfth;
provided, however, that if such action has been proposed, directly or
indirectly, on behalf of an Interested Stockholder, it must also be approved by
the affirmative vote of a majority of the voting power of all the shares of
Voting Stock held by stockholders other than such Interested Stockholder.
THIRTEENTH. This Certificate of Incorporation shall be effective at the
effective time of the merger of BANC ONE CORPORATION with and into BANK ONE
CORPORATION, as specified in the certificate of merger filed with the Secretary
of State of the State of Delaware with respect thereto.
3. THE FOLLOWING SHALL BE INSERTED AFTER ARTICLE FOURTEENTH AND SHALL
CONSTITUTE ANNEX A TO THE CERTIFICATE OF INCORPORATION OF THE CORPORATION AS
CONTEMPLATED BY ARTICLE FOURTH THEREOF:
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Annex A
- -------
PREFERRED STOCK WITH CUMULATIVE AND ADJUSTABLE DIVIDENDS, SERIES B
(Par Value $.01 per share)
OF
BANK ONE CORPORATION
(a) Designation.
The designation of the series of Preferred Stock created by this resolution
shall be "Preferred Stock with Cumulative and Adjustable Dividends, Series B"
(hereinafter called this "Series") and the number of shares constituting this
Series is 1,191,000. Shares of this Series shall have a stated value of $100 per
share. The number of authorized shares of this Series may be reduced by further
resolution duly adopted by the Board and by the filing of a certificate pursuant
to the provisions of the General Corporation Law of the State of Delaware
stating that such reduction has been so authorized, but the number of authorized
shares of this Series shall not be increased.
(b) Dividend Rate.
(1) Dividend rates on the shares of this Series shall be for each
quarterly dividend period (hereinafter referred to as a "Quarterly Dividend
Period"; and any Quarterly Dividend Period being hereinafter individually
referred to as a "Dividend Period" and collectively referred to as "Dividend
Periods"), which Quarterly Dividend Periods shall commence on March 1, June 1,
September 1 and December 1 in each year and shall end on and include the day
next preceding the first day of the next Quarterly Dividend Period, at a rate
per annum of the stated value thereof 3.75% below the Applicable Rate (as
defined in paragraph (2) of this Section (b)) in respect of such Quarterly
Dividend Period. Anything to the contrary herein notwithstanding, the dividend
rate for any Quarterly Dividend Period shall in no event be less than 6.00% or,
greater than 12.00% per annum. Such dividends shall be cumulative from September
1, 1998, and shall be payable, when and as declared by the Board, on the last
day of February, May, August and November of each year, commencing the last day
of November, 1998. Each such dividend shall be paid to the holders of record of
shares of this Series as they appear on the stock register of the Corporation on
such record date, not exceeding 30 days preceding the payment date thereof, as
shall be fixed by the Board. Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such date, not exceeding
45 days preceding the payment date thereof, as may be fixed by the Board.
(2) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be the highest of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate or the Twenty Year Constant Maturity Rate
(each as hereinafter defined) for such Dividend Period. In the event that the
Corporation determines in good faith that for any reason one or more of such
rates cannot be determined for any Quarterly Dividend Period, then the
Applicable Rate for such Dividend Period shall be the higher of whichever of
such rates can be so determined. In the event that the Corporation determines in
good faith that none of such rates can be determined for any Quarterly Dividend
Period, then the Applicable Rate in effect for the preceding Dividend Period
shall be continued for such Dividend Period.
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<PAGE>
(3) Except as provided below in this paragraph, the "Treasury Bill Rate"
for each Quarterly Dividend Period shall be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published during the
relevant Calendar Period as provided below) for three-month U.S. Treasury bills,
as published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the ten calendar days immediately preceding the last day of
February, May, August or November, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series is being determined.
In the event that the Federal Reserve Board does not publish such a weekly per
annum market discount rate during such Calendar Period, then the Treasury Bill
Rate for such Dividend Period shall be the arithmetic average of the two most
recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published during the
relevant Calendar Period as provided below) for three-month U.S. Treasury bills,
as published weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Corporation. In the
event that a per annum market discount rate for three-month U.S. Treasury bills
shall not be published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such Calendar Period,
then the Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum market discount rates (or the
one weekly per annum market discount rate, if only one such rate shall be
published during the relevant Calendar Period as provided below) for all of the
U.S. Treasury bills then having maturities of not less than 80 nor more than 100
days, as published during such Calendar Period by the Federal Reserve Board or,
if the Federal Reserve Board shall not publish such rates, by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good faith that for
any reason no such U.S. Treasury Bill Rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the per annum market discount rates
based upon the closing bids during such Calendar Period for each of the issues
of marketable noninterest- bearing U.S. Treasury securities with a maturity of
not less than 80 nor more than 100 days from the date of each such quotation, as
quoted daily for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
three recognized U.S. Government securities dealers selected by the Corporation.
In the event that the Corporation determines in good faith that for any reason
the Corporation cannot determine the Treasury Bill Rate for any Quarterly
Dividend Period as provided above in this paragraph, the Treasury Bill Rate for
such Dividend Period shall be the arithmetic average of the per annum market
discount rates based upon the closing bids during such Calendar Period for each
of the issues of marketable interest-bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days from the date of each such
quotation, as quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized U.S. Government securities dealers
selected by the Corporation.
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<PAGE>
(4) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average Yields (or the
one weekly per annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as published
weekly by the Federal Reserve Board during the Calendar Period immediately prior
to the ten calendar days immediately preceding the last day of February, May,
August or November, as the case may be, prior to the Quarterly Dividend Period
for which the dividend rate on this Series is being determined. In the event
that the Federal Reserve Board does not publish such a weekly per annum Ten Year
Average Yield during such Calendar Period, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such Yield shall be published during the
relevant Calendar Period as provided below), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government department
or agency selected by the Corporation. In the event that a per annum Ten Year
Average Yield shall not be published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly average yield to maturity, if only
one such yield shall be published during the relevant Calendar Period as
provided below) for all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) then having maturities
of not less than eight nor more than twelve years, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
shall not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason the Corporation
cannot determine the Ten Year Constant Maturity Rate for any Quarterly Dividend
Period as provided above in this paragraph, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a final maturity
date not less than eight nor more than twelve years from the date of each such
quotation, as quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized U.S. Government securities dealers
selected by the Corporation.
(5) Except as provided below in this paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Twenty Year Average Yields (or
the one weekly per annum Twenty Year Average Yield, if only one such Yield shall
be published during the relevant Calendar Period as provided below), as
published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the ten calendar days immediately preceding the last day of
February, May, August or November, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series is being
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<PAGE>
determined. In the event that the Federal Reserve Board does not publish such a
weekly per annum Twenty Year Average Yield during such Calendar Period, then the
Twenty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Twenty Year Average
Yields (or the one weekly per annum Twenty Year Average Yield, if only one such
Yield shall be published during the relevant Calendar Period as provided below),
as published weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Corporation. In the
event that a per annum Twenty Year Average Yield shall not be published by any
Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum average yields to maturity (or the average
yield to maturity, if only one such yield shall be published during the relevant
Calendar Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities)
then having maturities of not less than eighteen nor more than twenty-two years,
as published during such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board shall not publish such yields, by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the Corporation. In
the event that the Corporation determines in good faith that for any reason the
Corporation cannot determine the Twenty Year Constant Maturity Rate for any
Quarterly Dividend Period as provided above in this paragraph, then the Twenty
Year Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the per annum average yields to maturity based upon the closing bids
during such Calendar Period for each of the issues of actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities)
with a final maturity date not less than eighteen nor more than twenty-two years
from the date of each such quotation, as quoted daily for each business day in
New York City (or less frequently if daily quotations shall not be generally
available) to the Corporation by at least three recognized U.S. Government
securities dealers selected by the Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the nearest five
hundredths of a percentage point.
(7) The dividend rate with respect to each Quarterly Dividend Period will
be calculated as promptly as practicable by the Corporation according to the
appropriate method described herein. The mathematical accuracy of each such
calculation will be confirmed in writing by independent accountants of
recognized standing. The Corporation will cause each dividend rate to be
published in a newspaper of general circulation in New York City prior to the
commencement of the new Quarterly Dividend Period to which it applies and will
cause notice of such dividend rate to be enclosed with the dividend payment
checks next mailed to the holders of shares of this Series.
(8) For purposes of this Section (b), the term
(i) "Calendar Period" shall mean 14 calendar days;
(ii) "Special Securities" shall mean securities which can, at the
option of the holder, be surrendered at face value in payment of any Federal
estate tax or which
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<PAGE>
provide tax benefits to the holder and are priced to reflect such tax benefits
or which were originally issued at a deep or substantial discount;
(iii) "Ten Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of 20 years).
(9) No full dividends shall be declared or paid or set apart for payment
on Preferred Stock of any series ranking, as to dividends, on a parity with or
junior to this Series for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on this Series for all dividend
payment periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as aforesaid, upon
the shares of this Series and any other Preferred Stock ranking on a parity as
to dividends with this Series, all dividends declared upon shares of this Series
and any other Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. Holders of shares of
this Series shall not be entitled to any dividend, whether payable in cash,
property or stocks, in excess of full cumulative dividends, as herein provided,
on this Series. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this Series which may
be in arrears.
(10) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (9) of this Section (b)) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this Series as to dividends or
upon liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this Series shall have been
paid for all past dividend payment periods.
(11) Dividends payable on each share of this Series for each full Quarterly
Dividend Period shall be computed by dividing the dividend rate for such
Quarterly Dividend Period by four and applying such rate against the stated
value per share of this Series. Dividends payable on this Series for any period
less than a full Quarterly Dividend Period shall be computed on the basis of a
360 day year consisting of 30 day months.
(c) Redemption.
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(1) The Corporation, at its option, may redeem shares of this Series, as a
whole or in part, at any time or from time to time, at a redemption price of
$100 per share, plus, in each case, accrued and unpaid dividends thereon to the
date fixed for redemption.
(2) In the event that fewer than all the outstanding shares of this Series
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board and the shares to be redeemed shall be determined by lot or pro rata
as may be determined by the Board or by any other method as may be determined by
the Board in its sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of this Series
to be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date.
(4) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money for the
payment of the redemption price) dividends on the shares of this Series so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice of
the certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board shall so require and the notice shall so state), such
shares shall be redeemed by the Corporation at the redemption price aforesaid.
In case fewer than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(5) Any shares of this Series which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board.
(6) Notwithstanding the foregoing provisions of this Section (c), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any shares
of this Series; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
(d) Conversion or Exchange.
The holders of shares of this Series shall not have any rights herein to
convert such shares into or exchange such shares for shares of any other class
or classes or of any other series of any class or classes of capital stock of
the Corporation.
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<PAGE>
(e) Voting.
The shares of this Series shall not have any voting powers either general
or special, except that
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66-
2/3% of all of the shares of this Series at the time outstanding, given in
person or by proxy, either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of this Series shall vote together as a
separate class, shall be necessary for authorizing, effecting or validating the
amendment, alteration, or repeal of any of the provisions of the Certificate of
Incorporation or of any certificate amendatory thereof or supplemental thereto
(including any Certificate of Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would adversely affect
the preferences, rights, powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66-
2/3% of all of the shares of this Series and all other series of Preferred Stock
ranking on a parity with shares of this Series, either as to dividends or upon
liquidation, at the time outstanding, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose at which the holders of
shares of this Series and such other series of Preferred Stock shall vote
together as a single class without regard to series, shall be necessary for
authorizing, effecting or validating the creation, authorization or issue of any
shares of any class of stock of the Corporation ranking prior to the shares of
this Series as to dividends or upon liquidation, or the reclassification of any
authorized stock of the Corporation into any such prior shares, or the creation,
authorization or issue of any obligation or security convertible into or
evidencing the right to purchase any such prior shares;
(3) If at any time a default in preference dividends on the Preferred
Stock shall exist, the number of directors constituting the Board of Directors
of the Corporation shall be increased by two, and the holders of the Preferred
Stock of all series shall have the right at an annual or special meeting of
stockholders, voting together as a single class without regard to series, to the
exclusion of the holders of Common Stock, to elect two directors of the
Corporation to fill such newly created directorships. Such right shall continue
until there are no dividends in arrears upon the Preferred Stock. Each director
elected by the holders of shares of Preferred Stock (herein called a "Preferred
Director") shall continue to serve as such director until the next annual
meeting, notwithstanding that prior to such time a default in preference
dividends shall cease to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders of record of the
outstanding shares of Preferred Stock, voting together as a single class without
regard to series, at a meeting of the stockholders, or of the holders of shares
of Preferred Stock, called for that purpose. So long as a default in any
preference dividends on the Preferred Stock shall exist, (A) any vacancy in the
office of a Preferred Director may be filled (except as provided in the
following clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding shares of Preferred Stock, voting together as a
single class without regard to series, at the same meeting at which such removal
shall be
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voted. Each director appointed as aforesaid by the remaining Preferred Director
shall be deemed, for all purposes hereof, to be a Preferred Director. Whenever
the term of office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of directors constituting
the Board of Directors of the Corporation shall be reduced by two. For the
purposes hereof, a "default in preference dividends" on the Preferred Stock
shall be deemed to have occurred whenever the amount of accrued dividends upon
any series of the Preferred Stock shall be equivalent to six full quarter-
yearly dividends or more, and, having so occurred, such default shall be deemed
to exist thereafter until, but only until, all accrued dividends on all shares
of Preferred Stock of each and every series then outstanding shall have been
paid to the end of the last preceding quarterly dividend period.
(f) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the shares of this Series shall be entitled to receive out of the
assets of the Corporation, before any payment or distribution shall be made on
the Common Stock or on any other class of stock ranking junior to the Preferred
Stock upon liquidation, the amount of $100 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section (f).
(3) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (f), the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section (f), no such distribution shall be
made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of this Series then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any payment shall be made to the
holders of any class of capital stock of the Corporation ranking junior upon
liquidation to this Series.
(g) For purposes of this resolution, any stock of any class or classes of
the Corporation shall be deemed to rank:
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(1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(2) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series, if such stock is the Corporation's
Preferred Stock with Cumulative and Adjustable Dividends, Series C (Without Par
Value), the Corporation's 5 3/4% Cumulative Convertible Preferred Stock, Series
B (Stated Value $5,000 per share), or if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of such stock
and the holders of shares of this Series; and
(3) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes.
4. THE FOLLOWING SHALL BE INSERTED AFTER ANNEX A AND SHALL CONSTITUTE
ANNEX B TO THE CERTIFICATE OF INCORPORATION OF THE CORPORATION AS CONTEMPLATED
BY ARTICLE FOURTH THEREOF:
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Annex B
- -------
THE PREFERRED STOCK WITH CUMULATIVE AND ADJUSTABLE DIVIDENDS, SERIES C
(Par Value $.01 per share)
OF
BANK ONE CORPORATION
(a) Designation.
The designation of the series of Preferred Stock created by this resolution
shall be "Preferred Stock with Cumulative and Adjustable Dividends, Series C"
(hereinafter called this "Series") and the number of shares constituting this
Series is 713,800. Shares of this Series shall have a stated value of $100 per
share. The number of authorized shares of this Series may be reduced by further
resolution duly adopted by the Board and by the filing of a certificate pursuant
to the provisions of the General Corporation Law of the State of Delaware
stating that such reduction has been so authorized, but the number of authorized
shares of this Series shall not be increased.
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(b) Dividend Rate.
(1) Dividend rates on the shares of this Series shall be for each
quarterly dividend period (hereinafter referred to as a "Quarterly Dividend
Period"; and any Quarterly Dividend Period being hereinafter individually
referred to as a "Dividend Period" and collectively referred to as "Dividend
Periods"), which Quarterly Dividend Periods shall commence on, March 1, June 1,
September 1 and December 1 in each year and shall end on and include the day
next preceding the first day of the next Quarterly Dividend Period, at a rate
per annum of the stated value thereof 1.80% below the Applicable Rate (as
defined in paragraph (2) of this Section (b)) in respect of such Quarterly
Dividend Period. Anything to the contrary herein notwithstanding, the dividend
rate for any Quarterly Dividend Period shall in no event be less than 6.50% or
greater than 12.50% per annum. Such dividends shall be cumulative from September
1 , 1998 and shall be payable, when and as declared by the Board, on the last
day of February, May, August and November of each year, commencing the last day
of November, 1998. Each such dividend shall be paid to the holders of record of
shares of this Series as they appear on the stock register of the Corporation on
such record date, not exceeding 30 days preceding the payment date thereof, as
shall be fixed by the Board. Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such date, not exceeding
45 days preceding the payment date thereof, as may be fixed by the Board.
(2) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be the highest of the Treasury Bill Rate,
the Ten Year Constant Maturity Rate or the Twenty Year Constant Maturity Rate
(each as hereinafter defined) for such Dividend Period. In the event that the
Corporation determines in good faith that for any reason one or more of such
rates cannot be determined for any Quarterly Dividend Period, then the
Applicable Rate for such Dividend Period shall be the higher of whichever of
such rates can be so determined. In the event that the Corporation determines in
good faith that none of such rates can be determined for any Quarterly Dividend
Period, then the Applicable Rate in effect for the preceding Dividend Period
shall be continued for such Dividend Period.
(3) Except as provided below in this paragraph, the "Treasury Bill
Rate" for each Quarterly Dividend Period shall be the arithmetic average of the
two most recent weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall be published during the
relevant Calendar Period as provided below) for three-month U.S. Treasury bills,
as published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the ten calendar days immediately preceding the last day of
February, May, August or November, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series is being determined.
In the event that the Federal Reserve Board does not publish such a weekly per
annum market discount rate during such Calendar Period, then the Treasury Bill
Rate for such Dividend Period shall be the arithmetic average of the two most
recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published during the
relevant Calendar Period as provided below) for three-month U.S. Treasury bills,
as published weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency
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<PAGE>
selected by the Corporation. In the event that a per annum market discount rate
for three-month U.S. Treasury bills shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury Bill Rate
for such Dividend Period shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per annum market
discount rate, if only one such rate shall be published during the relevant
Calendar Period as provided below) for all of the U.S. Treasury bills then
having maturities of not less than 80 nor more than 100 days, as published
during such Calendar Period by the Federal Reserve Board or, if the Federal
Reserve Board shall not publish such rates, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the Corporation. In the
event that the Corporation determines in good faith that for any reason no such
U.S. Treasury Bill Rates are published as provided above during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum market discount rates based upon the closing
bids during such Calendar Period for each of the issues of marketable
noninterest-bearing U.S. Treasury securities with a maturity of not less than 80
nor more than 100 days from the date of each such quotation, as quoted daily for
each business day in New York City (or less frequently if daily quotations shall
not be generally available) to the Corporation by at least three recognized U.S.
Government securities dealers selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason the Corporation cannot
determine the Treasury Bill Rate for any Quarterly Dividend Period as provided
above in this paragraph, the Treasury Bill Rate for such Dividend Period shall
be the arithmetic average of the per annum market discount rates based upon the
closing bids during such Calendar Period for each of the issues of marketable
interest-bearing U.S. Treasury securities with a maturity of not less than 80
nor more than 100 days from the date of each such quotation, as quoted daily for
each business day in New York City (or less frequently if daily quotations shall
not be generally available) to the Corporation by at least three recognized U.S.
Government securities dealers selected by the Corporation.
(4) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average Yields (or the
one weekly per annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as published
weekly by the Federal Reserve Board during the Calendar Period immediately prior
to the ten calendar days immediately preceding the last day of February, May,
August or November, as the case may be, prior to the Quarterly Dividend Period
for which the dividend rate on this Series is being determined. In the event
that the Federal Reserve Board does not publish such a weekly per annum Ten Year
Average Yield during such Calendar Period, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such Yield shall be published during the
relevant Calendar Period as provided below), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government department
or agency selected by the Corporation. In the event that a per annum Ten Year
Average Yield shall
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<PAGE>
not be published by the Federal Reserve Board or by any Federal Reserve Bank or
by any U.S. Government department or agency during such Calendar Period, then
the Ten Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum average yields to
maturity (or the one weekly average yield to maturity, if only one such yield
shall be published during the relevant Calendar Period as provided below) for
all of the actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having maturities of not less
than eight nor more than twelve years, as published during such Calendar Period
by the Federal Reserve Board or, if the Federal Reserve Board shall not publish
such yields, by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that the Corporation determines
in good faith that for any reason the Corporation cannot determine the Ten Year
Constant Maturity Rate for any Quarterly Dividend Period as provided above in
this paragraph, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period for each of the
issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not less
than eight nor more than twelve years from the date of each such quotation, as
quoted daily for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
three recognized U.S. Government securities dealers selected by the Corporation.
(5) Except as provided below in this paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Twenty Year Average Yields (or
the one weekly per annum Twenty Year Average Yield, if only one such Yield shall
be published during the relevant Calendar Period as provided below), as
published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the ten calendar days immediately preceding the last day of
February, May, August or November, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series is being determined.
In the event that the Federal Reserve Board does not publish such a weekly per
annum Twenty Year Average Yield during such Calendar Period, then the Twenty
Year Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Twenty Year Average Yields (or
the one weekly per annum Twenty Year Average Yield, if only one such Yield shall
be published during the relevant Calendar Period as provided below), as
published weekly during such Calendar Period by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the Corporation. In the
event that a per annum Twenty Year Average Yield shall not be published by any
Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum average yields to maturity (or the one weekly
average yield to maturity, if only one such yield shall be published during the
relevant Calendar Period as provided below) for all of the actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) then having maturities of not less than eighteen nor more than
twenty-two years, as published
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during such Calendar Period by the Federal Reserve Board or, if the Federal
Reserve Board shall not publish such yields, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the Corporation. In the
event that the Corporation determines in good faith that for any reason the
Corporation cannot determine the Twenty Year Constant Maturity Rate for any
Quarterly Dividend Period as provided above in this paragraph, then the Twenty
Year Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the per annum average yields to maturity based upon the closing bids
during such Calendar Period for each of the issues of actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities)
with a final maturity date not less than eighteen nor more than twenty-two years
from the date of each such quotation, as quoted daily for each business day in
New York City (or less frequently if daily quotations shall not be generally
available) to the Corporation by at least three recognized U.S. Government
securities dealers selected by the Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the nearest five
hundredths of a percentage point.
(7) The dividend rate with respect to each Quarterly Dividend Period
will be calculated as promptly as practicable by the Corporation according to
the appropriate method described herein. The mathematical accuracy of each such
calculation will be confirmed in writing by independent accountants of
recognized standing. The Corporation will cause each dividend rate to be
published in a newspaper of general circulation in New York City prior to the
commencement of the new Quarterly Dividend Period to which it applies and will
cause notice of such dividend rate to be enclosed with the dividend payment
checks next mailed to the holders of shares of this Series.
(8) For purposes of this Section (b), the term
(i) "Calendar Period" shall mean 14 calendar days;
(ii) "Special Securities" shall mean securities which can, at
the option of the holder, be surrendered at face value in payment of any Federal
estate tax or which provide tax benefits to the holder and are priced to reflect
such tax benefits or which were originally issued at a deep or substantial
discount;
(iii) "Ten Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean the average yield
to maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of 20 years).
(9) No full dividends shall be declared or paid or set apart for payment
on Preferred Stock of any series ranking, as to dividends, on a parity with or
junior to this Series for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on this Series for all dividend
payment periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as aforesaid, upon
the shares of this Series and any other Preferred Stock ranking on a parity as
to dividends with this Series, all dividends declared upon shares of this Series
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<PAGE>
and any other Preferred Stock ranking on a parity as to dividends with this
Series shall be declared pro rata so that the amount of dividends declared per
share on this Series and such other Preferred Stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. Holders of shares of
this Series shall not be entitled to any dividend, whether payable in cash,
property or stocks, in excess of full cumulative dividends, as herein provided,
on this Series. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this Series which may
be in arrears.
(10) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (9) of this Section (b)) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this series as to dividends or
upon liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this Series shall have been
paid for all past dividend payment periods.
(11) Dividends payable on each share of this Series for each full Quarterly
Dividend Period shall be computed by dividing the dividend rate for such
Quarterly Dividend Period by four and applying such rate against the stated
value per share of this Series. Dividends payable on this Series for any period
less than a full Quarterly Dividend Period shall be computed on the basis of a
360 day year consisting of 30 day months.
(c) Redemption.
(1) The Corporation, at its option, may redeem shares of this Series,
as a whole or in part, at any time or from time to time, at a redemption price
of $100 per share, plus, in each case, accrued and unpaid dividends thereon to
the date fixed for redemption.
(2) In the event that fewer than all the outstanding shares of this Series
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board and the shares to be redeemed shall be determined by lot or pro rata
as may be determined by the Board or by any other method as may be determined by
the Board in its sole discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation. Each such notice
shall state: (i) the redemption date; (ii) the number of shares of this Series
to be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such shares
are to be
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<PAGE>
surrendered for payment of the redemption price; and (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date.
(4) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money for the
payment of the redemption price) dividends on the shares of this Series so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice of
the certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board shall so require and the notice shall so state), such
shares shall be redeemed by the Corporation at the redemption price aforesaid.
In case fewer than all the shares represented by any such certificate are
redeemed, a new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(5) Any shares of this Series which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board.
(6) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any shares
of this Series; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
(d) Conversion or Exchange.
The holders of shares of this Series shall not have any rights herein to
convert such shares into or exchange such shares for shares of any other class
or classes or of any other series of any class or classes of capital stock of
the Corporation.
(e) Voting.
The shares of this Series shall not have any voting powers either general
or special, except that
(1) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66-
2/3% of all of the shares of this Series at the time outstanding, given in
person or by proxy, either in writing or by a vote at a meeting called for the
purpose at which the holders of shares of this Series shall vote together as a
separate class, shall be necessary for authorizing, effecting or validating the
amendment, alteration or repeal of any of the provisions of the Certificate of
Incorporation or of any certificate amendatory thereof or supplemental thereto
(including any Certificate of Designation, Preferences and Rights or any similar
document relating to any series of Preferred Stock) which would adversely affect
the preferences, rights, powers or privileges of this Series;
(2) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least 66-
2/3% of all of the shares of this Series and all other series of Preferred Stock
ranking on a parity with shares of this
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<PAGE>
Series, either as to dividends or upon liquidation, at the time outstanding,
given in person or by proxy, either in writing or by a vote at a meeting called
for the purpose at which the holders of shares of this Series and such other
series of Preferred Stock shall vote together as a single class without regard
to series, shall be necessary for authorizing, effecting or validating the
creation, authorization or issue of any shares of any class of stock of the
Corporation ranking prior to the shares of this Series as to dividends or upon
liquidation, or the reclassification of any authorized stock of the Corporation
into any such prior shares, or the creation, authorization or issue of any
obligation or security convertible into or evidencing the right to purchase any
such prior shares;
(3) If at any time a default in preference dividends on the Preferred
Stock shall exist, the number of directors constituting the Board of Directors
of the Corporation shall be increased by two, and the holders of the Preferred
Stock of all series shall have the right at an annual or special meeting of
stockholders, voting together as a single class without regard to series, to the
exclusion of the holders of Common Stock, to elect two directors of the
Corporation to fill such newly created directorships. Such right shall continue
until there are no dividends in arrears upon the Preferred Stock. Each director
elected by the holders of shares of Preferred Stock (herein called a "Preferred
Director") shall continue to serve as such director until the next annual
meeting, notwithstanding that prior to such time a default in preference
dividends shall cease to exist. Each director elected by the holders of shares
of Preferred Stock (herein called a "Preferred Director") shall continue to
serve as such director until the next annual meeting, notwithstanding that prior
to such time a default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed except by, the
vote of the holders of record of the outstanding shares of Preferred Stock,
voting together as a single class without regard to series, at a meeting of the
stockholders, or of the holders of shares of Preferred Stock, called for that
purpose. So long as a default in any preference dividends on the Preferred Stock
shall exist, (A) any vacancy in the office of a Preferred Director may be filled
(except as provided in the following clause (B)) by an instrument in writing
signed by the remaining Preferred Director and filed with the Corporation and
(B) in the case of the removal of any Preferred Director, the vacancy may be
filled by the vote of the holders of the outstanding shares of Preferred Stock,
voting together as a single class without regard to series, at the same meeting
at which such removal shall be voted. Each director appointed as aforesaid by
the remaining Preferred Director shall be deemed, for all purposes hereof, to be
a Preferred Director. Whenever the term of office of the Preferred Directors
shall end and a default in preference dividends shall no longer exist, the
number of directors constituting the Board of Directors of the Corporation shall
be reduced by two. For the purposes hereof, a "default in preference dividends"
on the Preferred Stock shall be deemed to have occurred whenever the amount of
accrued dividends upon any series of the Preferred Stock shall be equivalent to
six full quarter- yearly dividends or more, and, having so occurred, such
default shall be deemed to exist thereafter until, but only until, all accrued
dividends on all shares of Preferred Stock of each and every series then
outstanding shall have been paid to the end of the last preceding quarterly
dividend period.
(f) Liquidation Rights.
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<PAGE>
(1) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the shares of this Series shall be entitled to receive out of the
assets of the Corporation, before any payment or distribution shall be made on
the Common Stock or on any other class of stock ranking junior to the Preferred
Stock upon liquidation, the amount of $100 per share, plus a sum equal to all
dividends (whether or not earned or declared) on such shares accrued and unpaid
thereon to the date of final distribution.
(2) Neither the sale of all or substantially all the property or business
of the Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section (f).
(3) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section (f), the holders of
this Series as such shall have no right or claim to any of the remaining assets
of the Corporation.
(4) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section (f), no such distribution shall be
made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(5) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of this Series then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (1) of this Section (f) before any payment shall be made to the
holders of any class of capital stock of the Corporation ranking junior upon
liquidation to this Series.
(g) For purposes of this resolution, any stock of any class or classes of
the Corporation shall be deemed to rank:
1) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
2) on a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series, if such stock is the Corporation's
Preferred Stock with Cumulative and Adjustable Dividends, Series B (Without Par
Value), or if the holders of such stock shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in proportion to their respective
dividend rates or liquidation prices, without preference or priority, one over
the other, as between the holders of such stock and the holders of shares of
this Series; and
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<PAGE>
3) junior to shares of this Series, either as to dividends or upon liquidation,
if such class shall be Common Stock or if the holders of shares of this Series
shall be entitled to receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of such class or classes.
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EXHIBIT 3.2
-----------
BY-LAWS
OF
BANK ONE CORPORATION
(A Delaware Corporation)
As Amended and Restated Effective as of October 2, 1998
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the Corporation is
-----------------
located at 1209 Orange Street, Wilmington, Delaware 19801. The Corporation may,
by resolution of the Board of Directors, change the location to any other place
in Delaware.
Section 2. Other Offices. The Corporation may have such other offices, within
-------------
or without the State of Delaware, as the Board of Directors may from time to
time establish.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of the stockholders for the
---------------
election of directors and for the transaction of any other business as may
properly come before the meeting shall be held on the third Tuesday in May of
each year or on such other date as from time to time may be designated by the
Board of Directors.
Section 2. Special Meetings. A special meeting of the stockholders may be
----------------
called at any time only by the Board of Directors pursuant to a resolution
approved by a majority of the Board of Directors.
Section 3. Place of Meetings. The Board of Directors may designate any place,
-----------------
either within or without the State of Delaware, as the place of meeting for any
annual meeting or for any special meeting of stockholders.
Section 4. Notice of Meetings. Written notice stating the place, date and hour
------------------
of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given by or under the direction of the
Secretary, to each stockholder of record entitled to vote at such meeting.
Except as otherwise required by statute, the written notice shall be given not
less than ten nor more than sixty days before the date of the meeting. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the Corporation. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
<PAGE>
before the meeting pursuant to the Corporation's notice of meeting. Attendance
of a person at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Any previously scheduled
meeting of the stockholders may be postponed, and (unless the Certificate of
Incorporation otherwise provides) any special meeting of the stockholders may be
cancelled, by resolution of the Board of Directors upon public notice given
prior to the date previously scheduled for such meeting of stockholders.
Section 5. Quorum. Except as otherwise required by statute, the presence at
------
any meeting, in person or by proxy, of a majority of the shares then issued and
outstanding and entitled to vote shall be necessary and sufficient to constitute
a quorum for the transaction of business. The Chairman of the meeting or a
majority of the shares so represented may adjourn the meeting from time to time,
whether or not there is such a quorum. The stockholders present at a duly
called meeting at which a quorum is present may continue to transact business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum.
Section 6. Voting Lists. The officer who has charge of the stock ledger of the
------------
Corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders of record entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder of record
who is present.
Section 7. Adjourned Meetings. When a meeting is adjourned to another time or
------------------
place, notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 8. Proxies. Each stockholder of record entitled to vote at a meeting
-------
of stockholders may authorize another person or persons (but no more than two)
to act for him by proxy, but no such proxy shall be voted or acted upon other
than at the meeting specified in the proxy or any adjournment of such meeting.
Section 9. Voting Rights. Except as otherwise provided by statute or by the
-------------
Certificate of Incorporation, and subject to the provisions of Article VI of
these By-Laws, each stockholder of record shall at every meeting of the
stockholders be entitled to one vote for each share of the capital stock having
voting power held by such stockholder.
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Section 10. Notice of Stockholder Business and Nominations.
----------------------------------------------
A. Annual Meetings of Stockholders.
-------------------------------
(1) Nominations of persons for election to the Board of Directors
of the Corporation may be made at an annual meeting of
stockholders pursuant to the procedures set forth in the
Certificate of Incorporation. Proposals of other business to
be considered by the stockholders may be made at an annual
meeting of stockholders (a) pursuant to the Corporation's
notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who
was a stockholder of record at the time of giving of notice
provided for in this By-Law, who is entitled to vote at the
meeting and who complies with the notice procedures set forth
in this By-Law.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause
(c) of paragraph (A)(1) of this By-Law, the stockholder must
have given timely notice thereof in writing to the Secretary
of the Corporation and such business must otherwise be a
proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to or mailed, postage
prepaid, and received by the Secretary at the principal
executive offices of the Corporation at least 60 days but no
more than 90 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders;
provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60
days after such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than the close
of business on the 90th day prior to such annual meeting and
not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following
the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall
the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to director nominations, that
information which is required by the Certificate of
Incorporation; (b) as to any business, other than the
nomination of director candidates, that the stockholder
proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and
of such
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beneficial owner and (ii) the class and number of shares of
the Corporation which are owned beneficially and of record by
such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this By-Law to the contrary, in the event that the
number of directors to be elected to the Board of Directors
of the Corporation is increased and there is no public
announcement by the Corporation naming all of the nominees
for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice
required by this By-Law shall also be considered timely, but
only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the Secretary
at the principal executive offices of the Corporation not
later than the close of business on the 10th day following
the day on which such public announcement is first made by
the Corporation.
B. Special Meetings of Stockholders.
--------------------------------
Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors of the
Corporation may be made at a special meeting of stockholders
(a) by the Board of Directors, on behalf of the Board of
Directors by any nominating committee appointed by the Board of
Directors, or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by
any stockholder of the Corporation entitled to vote for the
election of directors at the meeting. In the event the
Corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board of
Directors, any such stockholder may nominate a person or
persons (as the case may be), for election to such position(s)
as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this By-
Law shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than the 90th
day prior to such special meeting and not later than the close
of business on the later of the 60th day prior to such special
meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a
new time period for the giving of a stockholder's notice as
described above.
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<PAGE>
C. General.
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(1) Only such persons who are nominated in accordance with the
procedures set forth in the Certificate of Incorporation and
this By-Law shall be eligible to serve as directors and only
such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this By-Law.
Whenever the language of a proposed resolution is included
in a written notice of a meeting of stockholders the
resolution may be adopted at such meeting with only such
clarifying or other amendments as do not enlarge its
original purpose without further notice to stockholders not
present in person or by proxy. Except as otherwise provided
by law, the Certificate of Incorporation or these By-Laws,
the Chairman of the meeting shall have the power and duty to
determine whether any business proposed to be brought before
the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-Law and,
if any proposed nomination or business is not in compliance
with the Certificate of Incorporation or this By-Law, to
declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news
service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth
in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights (i) of stockholders to request inclusion
of proposals in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock to elect directors under
specified circumstances.
Section 11. Required Vote. Except as otherwise required by statute or by the
-------------
Certificate of Incorporation, in all matters other than the election of
directors, the affirmative vote of the majority of shares present in person or
represented by proxy at the meeting and entitled to vote on the subject matter
shall decide any question brought before a meeting of the stockholders at which
a quorum is present.
Section 12. Elections of Directors. Elections of directors shall be by ballot,
----------------------
and, subject to the rights of the holders of any series of Preferred Stock to
elect directors under specified circumstances, a plurality of the votes cast
thereat shall elect directors.
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<PAGE>
Section 13. Inspectors of Elections; Opening and Closing the Polls. The Board
------------------------------------------------------
of Directors by resolution shall appoint one or more inspectors, which inspector
or inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors
to replace any inspector who fails to act. If no inspector or alternate has
been appointed to act or is able to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by law. The Chairman of the meeting shall fix
and announce at the meeting the date and time of the opening and the closing of
the polls for each matter upon which the stockholders will vote at a meeting.
ARTICLE III
Board of Directors
Section 1. General Powers. The business of the Corporation shall be managed by
--------------
the Board of Directors, except as otherwise provided by statute or by the
Certificate of Incorporation.
Section 2. Number. The number of the Directors of the Corporation shall be
------
fixed from time to time by resolution adopted by the affirmative vote of a
majority of the entire Board of Directors of the Corporation, except that the
minimum number of directors shall be fixed at no less than eleven (11) and the
maximum number of directors shall be fixed at no more than thirty (30). At each
annual meeting of stockholders, successors of the directors shall be elected for
a term expiring at the annual meeting next following such annual meeting.
Section 3. Election and Term of Office. Except as otherwise provided in these
---------------------------
By-laws, directors shall be elected at the annual meeting of stockholders.
Newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum, or by a sole remaining director. A director,
including any director chosen to fill a newly created directorship or any
vacancy, shall hold office until the next annual meeting following his election
or appointment to the Board of Directors, as applicable, and until such
director's successor shall have been elected and qualified. In no case will a
decrease in the number of directors shorten the term of any incumbent director.
Section 4. First Meetings. The first meeting of each newly elected Board of
--------------
Directors shall be held without notice immediately after the annual meeting of
the stockholders for the purpose of the organization of the Board, the election
of officers, and the transaction of such other business as may properly come
before the meeting.
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Section 5. Regular Meetings. Regular meetings of the Board of Directors may be
----------------
held without notice at such times and at such places, within or without the
State of Delaware, as shall from time to time be determined by the Board.
Section 6. Special Meetings. Special meetings of the Board of Directors may be
----------------
called by the Chairman of the Board or the President. Such meetings shall be
held at such times and at such places, within or without the State of Delaware,
as shall be determined by the officer calling the meeting. Notice of any
special meeting of directors shall be given to each director at his business or
residence in writing by hand delivery, first-class or overnight mail or courier
service, telegram or facsimile transmission, or orally by telephone. If mailed
by first-class mail, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
at least two (2) days before such meeting. If by telegram, overnight mail or
courier service, such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least twenty-four (24) hours before
such meeting. If by facsimile transmission, such notice shall be deemed
adequately delivered when the notice is transmitted at least twelve (12) hours
before such meeting. Such notice need not state the purposes of the meeting.
Any or all directors may waive notice of any meeting, either before or after the
meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except when the director attends for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Section 7. Quorum, Required Vote, and Adjournment. The presence, at any
--------------------------------------
meeting, of a majority of the whole Board shall be necessary and sufficient to
constitute a quorum for the transaction of business. Except as otherwise
required by statute or by the Certificate of Incorporation, the vote of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. In the absence of a quorum, a
majority of the directors present at the time and place of any meeting may
adjourn such meeting from time to time until a quorum is present.
Section 8. Consent of Directors in Lieu of Meeting. Any action required or
---------------------------------------
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all the members of the
Board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee.
Section 9. Participation in Meetings by Telephone. A member of the Board or
--------------------------------------
any committee thereof may participate in a meeting of such Board or committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall constitute presence in
person at such meeting.
Section 10. Compensation. The Board of Directors may authorize the payment to
------------
directors of a fixed fee and expenses for attendance at meetings of the Board or
any committee thereof, and
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<PAGE>
annual fees for service as directors. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
Board Committees
Section 1. Designation and Membership. The Board of Directors may designate
--------------------------
one or more regular and special committees, consisting of directors, officers or
other persons, which shall have and may exercise such powers and functions as
the Board may prescribe in the management of the business and affairs of the
Corporation; provided, however, that no committee shall have power or authority
in reference to the following matters: (a) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
Delaware General Corporation Law to be submitted to stockholders for approval or
(b) adopting, amending or repealing any By-Law of the Corporation. Such
committees shall keep regular minutes of their proceedings and report the same
to the Board of Directors when required. The Board of Directors may from time
to time suspend, alter, continue or terminate any such committee or the powers
and functions thereof. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitutes a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of any such absent
or disqualified member.
Section 2. Executive Committee. There shall be an Executive Committee, which,
-------------------
during intervals between regular meetings of the Board of Directors and to the
extent permitted by law, the Certificate of Incorporation and these By-Laws,
shall have and may exercise all the powers of the Board of Directors in the
management of the business and affairs of the Corporation.
ARTICLE V
Officers
Section 1. Number, Election, Term of Office and Qualification. The number,
--------------------------------------------------
titles and duties of the officers shall be determined by the Board of Directors
from time to time, subject to the provisions of applicable law, the Certificate
of Incorporation, and these By-Laws. Each officer shall be elected in the
manner prescribed by the Board of Directors and shall hold office until such
officer's successor is elected and qualified or until such officer's death,
resignation or removal. The election of officers shall be held annually at the
first meeting of the Board of Directors held after each annual meeting of
stockholders, subject to the power of the Board of Directors to designate any
office at any time and elect any person thereto. The officers shall include a
Chairman of the Board and a President, and may include one or more Vice Chairmen
of the Board, one or more Vice Presidents, a Secretary, a Treasurer, and such
other officers as the Board of Directors may determine. The same person may
hold any two or more offices, and in
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<PAGE>
any such case, these By-Laws shall be construed and understood accordingly;
provided that the same person may not hold the offices of Chairman of the Board
and Secretary or President and Secretary. No officer other than the Chairman of
the Board, President or Vice Chairman of the Board need be a director of the
Corporation.
Section 2. Removal. Any officer or agent may be removed at any time, with or
-------
without cause, by the Board of Directors.
Section 3. Vacancies. Any vacancy occurring in any office of the Corporation
---------
may be filled for the unexpired term in the manner prescribed by these By-Laws
for the regular election to such office.
Section 4. Chief Executive Officer. The Board of Directors shall designate one
-----------------------
of the officers to be the Chief Executive Officer. Subject to the direction and
under the supervision of the Board of Directors, the Chief Executive Officer
shall have general charge of the business, affairs and property of the
Corporation, and control over its officers, agents and employees.
Section 5. The Secretary. The Secretary shall keep the minutes of the
-------------
proceedings of the stockholders and of the Board of Directors in one or more
books to be kept for that purpose. The Secretary shall have custody of the seal
of the Corporation, and the Secretary, and any Assistant Secretary, shall have
authority to cause such seal to be affixed to any instrument requiring it and
when so affixed, it may be attested by the signature of the Secretary or
Assistant Secretary. The Secretary shall, in general, perform all duties and
have all powers incident to the office of Secretary and shall perform such other
duties and have such other powers as may from time to time be assigned to the
Secretary by these By-Laws, by the Board of Directors or by the Chief Executive
Officer.
Section 6. Treasurer. The Treasurer shall have custody of the corporate funds
---------
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. The Treasurer shall cause
all moneys and other valuable effects to be deposited in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall cause the funds of the Corporation to be
disbursed when such disbursements have been duly authorized, taking proper
vouchers for such disbursements, and shall render to the Chief Executive Officer
and the Board of Directors, whenever requested, an account of all transactions
conducted by the Treasurer for the Corporation and of the financial condition of
the Corporation. The Treasurer shall, in general, perform all duties and have
all powers incident to the office of Treasurer and shall perform such other
duties and have such other powers as may from time to time be assigned to the
Treasurer by these By-Laws, by the Board of Directors or by the Chief Executive
Officer.
ARTICLE VI
Fixing Record Date
In order that the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any
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<PAGE>
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty days nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held and the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
ARTICLE VII
Execution of Documents and Instruments
Section 1. Execution of Documents and Instruments Generally. Any officer of
------------------------------------------------
the Corporation and such other persons as may be authorized by the Chairman of
the Board, the President, or any Vice Chairman of the Board from time to time
are severally and respectively authorized to execute documents and to take
actions in the Corporation's name in connection with transactions conducted in
the ordinary course of the Corporation's business. With respect to all other
transactions, all documents, instruments or writings of any nature shall be
signed, executed, verified, acknowledged and delivered by such officer or
officers or such agent or agents of the Corporation and in such manner as the
Board of Directors from time to time may determine.
Section 2. Checks, Drafts, Etc. All notes, drafts, acceptances, checks,
--------------------
endorsements, and all evidence of indebtedness of the Corporation whatsoever,
shall be signed by such officer or officers or such agent or agents of the
Corporation and in such manner as the Board of Directors from time to time may
determine. Endorsements for deposit to the credit of the Corporation in any of
its duly authorized depositories shall be made in such manner as the Board of
Directors from time to time may determine.
Section 3. Proxies and Consents. Proxies to vote and written consent with
--------------------
respect to shares of stock of other corporations owned by or standing in the
name of the Corporation may be executed and delivered from time to time on
behalf of the Corporation by the Chairman, the President, any Vice Chairman, any
Vice President, the Secretary or the Treasurer of the Corporation, or by any
other person or persons duly authorized by the Board of Directors.
ARTICLE VIII
Capital Stock
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<PAGE>
Section 1. Stock Certificates. The interest of every holder of stock in the
------------------
Corporation shall be evidenced by a certificate or certificates signed by, or in
the name of the Corporation by the Chairman, President, Vice Chairman or a Vice
President, and by the Secretary or an Assistant Secretary of the Corporation
certifying the number of shares owned by him in the Corporation and in such form
not inconsistent with the Certificate of Incorporation or applicable law as the
Board of Directors may from time to time prescribe. If such certificate is
countersigned (1) by a transfer agent, whether or not a subsidiary of the
Corporation, other than the Corporation or its employee, or (2) by a registrar,
whether or not a subsidiary of the Corporation, other than the Corporation or
its employee, the signatures of the officers of the Corporation may be
facsimiles. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
Section 2. Transfer of Stock. Shares of stock of the Corporation shall be
-----------------
transferred on the books of the Corporation only by the holder of record thereof
or by his attorney duly authorized in writing, upon surrender to the Corporation
of the certificates for such shares endorsed by the appropriate person or
persons, with such evidence of the authenticity of such endorsement, transfer,
authorization and other matters as the Corporation may reasonably require, and
accompanied by all necessary stock transfer tax stamps. In that event it shall
be the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction on its books.
Section 3. Rights of Corporation with Respect to Registered Owners. Prior to
-------------------------------------------------------
the surrender to the Corporation of the certificates for shares of stock with a
request to record the transfer of such shares, the Corporation may treat the
registered owner as the person entitled to receive dividends, to vote, to
receive notifications, and otherwise to exercise all the rights and powers of an
owner.
Section 4. Transfer Agents and Registrars. The Board of Directors may make
------------------------------
such rules and regulations as it may deem expedient concerning the issuance and
transfer of certificates for shares of the stock of the Corporation and may
appoint transfer agents or registrars or both, and may require all certificates
of stock to bear the signature of either or both. Nothing herein shall be
construed to prohibit the Corporation or any subsidiary of it from acting as its
own transfer agent or registrar at any of its offices.
Section 5. Lost, Destroyed and Stolen Certificates. Where the owner of a
---------------------------------------
certificate for shares claims that such certificate has been lost, destroyed or
wrongfully taken, the Corporation shall issue a new certificate in place of the
original certificate if the owner satisfies such reasonable requirements,
including evidence of such loss, destruction, or wrongful taking, as may be
imposed by the Corporation, including but without limitation, the delivery to
the Corporation of an indemnity bond satisfactory to it.
ARTICLE IX
Indemnification
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Section 1. Contract Right. The right to indemnification conferred in the
--------------
Certificate of Incorporation and this By-Law shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this By-Law or otherwise.
Section 2. Submission of Claim. To obtain indemnification under this By-Law, a
-------------------
claimant shall submit to the Corporation a written request, including therein or
therewith such documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what extent the
claimant is entitled to indemnification. In the event the determination of
entitlement to indemnification is to be made by Independent Counsel (as
hereinafter defined) as set forth in the Certificate of Incorporation, the
Independent Counsel shall be selected by the Board of Directors unless there
shall have occurred within two years prior to the date of the commencement of
the action, suit or proceeding for which indemnification is claimed a "Change of
Control" as defined in the Corporation's Stock Performance Plan, in which case
the Independent Counsel shall be selected by the claimant unless the claimant
shall request that such selection be made by the Board of Directors. If it is
so determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such determination.
Section 3. Unpaid Claim. If a claim under Section 1 of this By-Law is not paid
------------
in full by the Corporation within thirty days after a written claim pursuant to
Section 2 of this By-Law has been received by the Corporation, the claimant may
at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed. It shall also be a defense if indemnification is not permissible under
applicable banking statutes or regulations. The burden of proving any such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, Independent Counsel or stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the General Corporation
Law of the State of Delaware, nor an actual determination by the Corporation
(including its Board of Directors, Independent Counsel or
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<PAGE>
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 4. Binding Determination. If a determination shall have been made
---------------------
pursuant to Section 2 of this By-Law that the claimant is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to Section 3 of this By-Law.
Section 5. Binding Effect on Corporation. The Corporation shall be precluded
-----------------------------
from asserting in any judicial proceeding commenced pursuant to Section 3 of
this By-Law that the procedures and presumptions of this By-Law are not valid,
binding and enforceable and shall stipulate in such proceeding that the
Corporation is bound by all the provisions of this By-Law.
Section 6. Non-exclusivity. The right to indemnification and the payment of
---------------
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this By-Law shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-Laws, agreement, vote of stockholders or
Disinterested Directors or otherwise. No repeal or modification of this By-Law
shall in any way diminish or adversely affect the rights of any director,
officer, employee or agent of the Corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
Section 7. Employees and Agents. The Corporation may, to the extent authorized
--------------------
from time to time by the Board of Directors, grant rights to indemnification,
and rights to be paid by the Corporation the expenses incurred in defending any
proceeding in advance of its final disposition, to any employee or agent of the
Corporation to the fullest extent of the provisions of this By-Law with respect
to the indemnification and advancement of expenses of directors and officers of
the Corporation.
Section 8. Validity. If any provision or provisions of this By-Law shall be
--------
held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this By-Law
(including, without limitation, each portion of any Section of this By-Law
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (2) to the fullest extent possible, the
provisions of this By-Law (including, without limitation, each such portion of
any Section of this By-Law containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
Section 9. Definitions. For purposes of this By-Law:
-----------
A. "Disinterested Director" means a director of the Corporation who
is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
-13-
<PAGE>
B. "Independent Counsel" means a law firm, a member of a law firm,
or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the
applicable standards of professional conduct then prevailing,
would not have a conflict of interest in representing either the
Corporation or the claimant in an action to determine the
claimant's rights under this By-Law.
Section 10. Notice. Any notice, request or other communication required or
------
permitted to be given to the Corporation under this By-Law shall be in writing
and either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
ARTICLE X
Seal
The corporate seal, subject to alteration by the Board of Directors, shall be in
the form of a circle and shall bear the name of the Corporation and the year of
its incorporation and shall indicate its formation under the laws of the State
of Delaware. Such seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be the calendar year except as
otherwise provided by the Board of Directors.
ARTICLE XII
Amendments
The By-Laws of the Corporation may be amended or repealed, or new By-Laws not
inconsistent with law or any provision of the Certificate of Incorporation, as
amended, may be made and adopted by a majority vote of the whole Board of
Directors at any regular or special meeting of the Board.
-14-
<PAGE>
EXHIBIT 5.1
-----------
October 7, 1998
BANK ONE CORPORATION
One First National Plaza
Chicago, Illinois 60670
RE: Registration Statement on Form S-3 Related to the Offering of Certain
---------------------------------------------------------------------
Shares of Common Stock of the Company Pursuant to Rule 415 of the
-----------------------------------------------------------------
Securities Act of 1933, as Amended
----------------------------------
Ladies and Gentlemen:
I, or members of my staff subject to my supervision, have acted as counsel
to BANK ONE CORPORATION, a Delaware corporation (the "Company"), in connection
with the preparation and filing of a Registration Statement on Form S-3 (the
"Registration Statement") relating to up to 891,000 shares (the "Shares") of the
Company's common stock, par value $.01 per share, to be sold by the selling
stockholder named in the registration statement in an offering to be conducted
pursuant to Rule 415 of the Securities Act of 1933, as amended.
In rendering this opinion, I have examined such corporate records and other
documents, and have reviewed such matters of law, as I have deemed necessary or
appropriate. Based on the foregoing, I am of the opinion that the Shares have
been validly issued and are legally authorized, fully paid and nonassessable.
I hereby consent to be named in the Registration Statement and in the
related prospectus contained therein as the attorney who passed upon the
legality of the Shares and to the filing of a copy of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Sherman I. Goldberg, Esq.
Sherman I. Goldberg, Esq.
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of BANK ONE CORPORATION, of our report dated February
12, 1998 on our audits of the consolidated financial statements of BANC ONE
CORPORATION as of December 31, 1997 and 1996, and for each of the three years in
the period ended December 31, 1997, included in BANC ONE CORPORATION's Annual
Report on Form 10-K for the year ended December 31, 1997. We also consent to
the reference to our firm under the caption "Experts" in this Registration
Statement.
/s/ PricewaterhouseCoopers LLP
Columbus, Ohio
October 7, 1998
<PAGE>
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To BANK ONE CORPORATION:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 15, 1998,
on the consolidated financial statements of First Chicago NBD Corporation
included in the Form 10-K of First Chicago NBD Corporation for the year ended
December 31, 1997 and to the reference to our Firm under the caption "Experts"
included in this Registration Statement.
/s/ Arthur Andersen LLP
Chicago, Illinois,
October 7, 1998
<PAGE>
EXHIBIT 23.3
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To BANK ONE CORPORATION:
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
October 6, 1998, on the supplemental consolidated financial statements of BANK
ONE CORPORATION included in the Form 8-K of BANK ONE CORPORATION as of December
31, 1997 and 1996, and for each year in the three-year period ended December 31,
1997. We also consent to the reference to our firm under the caption "Experts"
included in this Registration Statement.
/s/ Arthur Andersen LLP
Chicago, Illinois,
October 7, 1998
<PAGE>
EXHIBIT 24
----------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Verne G. Istock, John B. McCoy, Richard J.
Lehmann, David J. Vitale, Sherman I. Goldberg, Robert A. Rosholt and M. Eileen
Kennedy, jointly and severally, his attorney-in-fact, each with power of
substitution, for him in any and all capacities to sign one or more Registration
Statements on Form S-3 and any amendments thereto (including any post-effective
amendments) relating to common stock, $0.01 par value per share (the "Common
Stock"), of BANK ONE CORPORATION (the "Corporation") to be sold by certain
stockholders of the Corporation and any subsequent registration statement filed
by the Corporation pursuant to Rule 462(b) of the Securities Act of 1933 with
respect to such Securities, pursuant to resolutions adopted by the Board of
Directors of the Corporation as of September 30, 1998, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission hereby ratifying and confirming all that each
of said attorneys-in-fact, or his substitute or substitutes, may do or cause to
be done by virtue hereof.
Signature Title
--------- -----
/s/ John H. Bryan Director
- ---------------------------------
John H. Bryan
/s/ Siegfried Buschmann Director
- ---------------------------------
Siegfried Buschmann
/s/ James S. Crown Director
- ---------------------------------
James S. Crown
/s/ Bennett Dorrance Director
- ---------------------------------
Bennett Dorrance
/s/ Dr. Maureen A. Fay, O.P. Director
- ---------------------------------
Dr. Maureen A. Fay, O.P.
/s/ John R. Hall Director
- ---------------------------------
John R. Hall
<PAGE>
/s/ Verne G. Istock Director
- ---------------------------------
Verne G. Istock
/s/ Laban P. Jackson, Jr. Director
- ---------------------------------
Laban P. Jackson, Jr.
/s/John W. Kessler Director
- ---------------------------------
John W. Kessler
/s/ Richard J. Lehmann Director
- ---------------------------------
Richard J. Lehmann
/s/ William G. Lowrie Director
- ---------------------------------
William G. Lowrie
/s/ Richard A. Manoogian Director
- ---------------------------------
Richard A. Manoogian
/s/ William T. McCormick Director
- ---------------------------------
William T. McCormick
/s/ John B. McCoy Director and Principal Executive
- ---------------------------------
Officer
John B. McCoy
/s/ Thomas E. Reilly, Jr. Director
- ---------------------------------
Thomas E. Reilly, Jr.
/s/ John W. Rogers, Jr. Director
- ---------------------------------
John W. Rogers, Jr.
/s/ Thekla R. Shackelford Director
- ---------------------------------
Thekla R. Shackelford
/s/ Alex Shumate Director
- ---------------------------------
Alex Shumate
<PAGE>
/s/ Frederick P. Stratton, Jr. Director
- ---------------------------------
Frederick P. Stratton, Jr.
/s/ John C. Tolleson Director
- ---------------------------------
John C. Tolleson
/s/ David J. Vitale Director
- ---------------------------------
David J. Vitale
/s/ Robert D. Walter Director
- ---------------------------------
Robert D. Walter
/s/ William J. Roberts Principal Accounting Officer
- ---------------------------------
William J. Roberts
/s/ Robert A. Rosholt Principal Financial Officer
- ---------------------------------
Robert A. Rosholt
Dated: October 2, 1998
