<PAGE>
As filed with the Securities and Exchange Commission on June 17, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
BANK ONE Capital I
BANK ONE Capital II
BANK ONE CORPORATION BANK ONE Capital III
(Exact name of each registrant as BANK ONE Capital IV
specified in its charter) BANK ONE Capital V
(Exact name of each registrant as
Delaware specified
(State or other jurisdiction in its certificate of trust)
of incorporation or organization)
Delaware
31-0738296 (State or other jurisdiction of
(I.R.S. Employer Identification No.) incorporation or organization of
of each registrant)
Each to be applied for
(I.R.S. Employer Identification No.)
One First National Plaza
Chicago, Illinois 60670
312-732-4000
(Address, including zip code, and telephone number, including area code, of
each registrant's principal executive offices)
--------------
Robert A. Rosholt
Executive Vice President and Chief Financial Officer
BANK ONE CORPORATION
One First National Plaza
Chicago, Illinois 60670
(312) 732-3209
(Name, address, including zip code, and telephone number, including area
code, of agent for service of each registrant)
With copies to:
Sherman I. Goldberg, Esq. Vincent J. Pisano, Esq.
BANK ONE CORPORATION Skadden, Arps, Slate,
One First National Plaza Meagher & Flom LLP
Chicago, Illinois 60670 919 Third Avenue
New York, New York 10022
--------------
Approximate Date of Commencement of Proposed Sale to the Public: From time
to time after the Registration Statement becomes effective.
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 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. [_]
--------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
(table and footnotes continued on next page)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
(continued from previous page)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of each class of Amount maximum aggregate
registration to be offering price offering Amount
securities to be registered registered (5) per unit (5) price(1)(5) of fee
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities of
BANK ONE CORPORATION (3).... (1) (2) (2) N/A
- -------------------------------------------------------------------------------
Preferred Securities of
BANK ONE Capital I,
BANK ONE Capital II,
BANK ONE Capital III,
BANK ONE Capital IV
and BANK ONE Capital V...... (1) (2) (2) N/A
- -------------------------------------------------------------------------------
BANK ONE CORPORATION
Guarantees with respect to
Preferred Securities........ (4) (4) (4) N/A
- -------------------------------------------------------------------------------
Total....................... $1,000,000 N/A $1,000,000 $278
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
(1) Such indeterminate number or principal amount of Debt Securities (including
Senior Debt Securities, Senior Subordinated Debt Securities and Junior
Subordinated Debt Securities) of BANK ONE CORPORATION (the "Company") and
Preferred Securities (the "Preferred Securities") of BANK ONE Capital I,
BANK ONE Capital II, BANK ONE Capital III, BANK ONE Capital IV and BANK ONE
Capital V (collectively, the "BANK ONE Capital Trusts") not to exceed
$1,000,000 maximum aggregate offering price exclusive of accrued interest
and dividends, if any.
(2) The proposed maximum offering price per unit will be determined from time
to time in connection with the issuance of the securities registered
hereunder. The maximum aggregate offering price will be such amount in U.S.
dollars or the equivalent thereof in foreign currencies as shall result in
a maximum aggregate offering price for all securities of $1,000,000.
Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933 and exclusive of
accrued interest and dividends, if any.
(3) Junior Subordinated Debt Securities may be purchased by any of the BANK ONE
Capital Trusts with the proceeds of the sale of the Preferred Securities of
that BANK ONE Capital Trust, together with the proceeds received from the
Company for the common securities to be issued by that BANK ONE Capital
Trust to the Company. No separate consideration will be received for such
Junior Subordinated Debt Securities. Such Junior Subordinated Debt
Securities may later be distributed for no additional consideration to the
holders of Preferred Securities of the applicable BANK ONE Capital Trust
upon certain events described in the applicable Declaration of such BANK
ONE Capital Trust.
(4) The Company is also registering pursuant to this Registration Statement the
Company's Guarantees and other obligations that it may have with respect to
Preferred Securities issued by any of the BANK ONE Capital Trusts. Pursuant
to Rule 457(n) under the Securities Act of 1933, no separate consideration
will be received for any such Guarantee or any other such obligations.
(5) This Registration Statement also serves to register such indeterminate
amount of securities that are to be offered and sold in connection with
market making activities by an affiliate of the Registrants.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. BANK +
+ONE CORPORATION or a BANK ONE Capital Trust, as applicable, may not sell +
+these securities until the Registration Statement filed with the Securities +
+and Exchange Commission is effective. This prospectus is not an offer to sell +
+these securities and it is not soliciting an offer to buy these securities in +
+any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 17, 1999
PROSPECTUS
BANK ONE CORPORATION
Senior Debt Securities
Senior Subordinated Debt Securities
Junior Subordinated Debt Securities
BANK ONE Capital I
BANK ONE Capital II
BANK ONE Capital III
BANK ONE Capital IV
BANK ONE Capital V
Preferred Securities
(fully and unconditionally guaranteed on a subordinated basis, as
described herein, by BANK ONE CORPORATION)
This prospectus contains a general description of the securities which BANK
ONE CORPORATION and/or a BANK ONE Capital Trust may offer for sale. The
specific terms of the securities will be contained in one or more supplements
to this prospectus. Read the prospectus and any supplement carefully before you
invest.
The securities will be unsecured obligations of BANK ONE CORPORATION and/or a
BANK ONE Capital Trust and will not be savings accounts, deposits or other
obligations of any bank and are not insured by the Federal Deposit Insurance
Corporation, the Bank Insurance Fund or any other government agency.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement.
The date of this prospectus is , 1999.
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
Summary.................................................................. 1
Where You Can Find More Information about the Company and the BANK ONE
Captial Trusts.......................................................... 2
Forward-Looking Statements............................................... 3
The Company.............................................................. 5
Ratio of Earnings to Fixed Charges....................................... 6
The BANK ONE Capital Trusts.............................................. 6
Use of Proceeds.......................................................... 8
Regulatory Matters....................................................... 8
Description of Debt Securities........................................... 13
Senior Securities........................................................ 18
Senior Subordinated Securities........................................... 19
Description of Junior Subordinated Debt Securities....................... 24
Description of the Preferred Securities.................................. 29
Description of the Preferred Securities Guarantees....................... 31
Effect of Obligations Under the Junior Subordinated Debt Securities and
the Preferred Securities Guarantee...................................... 35
Global Securities........................................................ 36
Plan of Distribution..................................................... 38
Legal Matters............................................................ 39
Experts.................................................................. 39
</TABLE>
i
<PAGE>
SUMMARY
This document is called a prospectus. This summary highlights selected
information from this prospectus and may not contain all of the information
that is important to you. To understand the terms of the securities, you should
carefully read this prospectus with the attached prospectus supplement. This
prospectus and the prospectus supplement together give the specific terms of
the securities being offered. You should also read the documents referred to
under the heading "Where You Can Find More Information About the Company and
the BANK ONE Capital Trusts" for information on BANK ONE CORPORATION and its
financial statements. The Company has its principal offices at One First
National Plaza, Chicago, Illinois (telephone: 312-732-4000). Certain
capitalized terms used in this summary are defined elsewhere in this
prospectus.
BANK ONE CORPORATION, a Delaware corporation (also referred to as the
"Company", "BANK ONE", "us" or "we"), and BANK ONE Capital I, BANK ONE Capital
II, BANK ONE Capital III, BANK ONE Capital IV and BANK ONE Capital V, each a
statutory business trust formed under the laws of the State of Delaware
(separately, each trust is also referred to as a "BANK ONE Capital Trust" and
together as the "BANK ONE Capital Trusts") have filed a registration statement
with the Securities and Exchange Commission under a "shelf" registration
procedure. Under this procedure the Company and each BANK ONE Capital Trust, as
applicable, may offer and sell from time to time, in one or more series, up to
$1,000,000, or the equivalent in one or more foreign currencies, including
composite currencies such as the Euro, of any of the following securities:
. unsecured senior debt securities,
. unsecured senior subordinated debt securities,
. unsecured junior subordinated debt securities,
. preferred securities of a BANK ONE Capital Trust, and
. guarantees, described below, relating to the preferred securities of
each BANK ONE Capital Trust.
The securities may be sold for U.S. dollars, foreign-denominated currency or
currency units; amounts payable with respect to any such securities may be
payable in U.S. dollars or foreign-denominated currency or currency units.
This prospectus provides you with a general description of the securities we
may offer. Each time we offer securities, we will provide you with a prospectus
supplement that will describe the specific amounts, prices and terms of the
securities being offered. The prospectus supplement may also add, update or
change information contained in this prospectus.
The prospectus supplement will also contain information about certain United
States federal income tax considerations relating to the securities covered by
the prospectus supplement.
The Company and each BANK ONE Capital Trust may sell securities to
underwriters who will sell the securities to the public on terms fixed at the
time of sale. In addition, the securities may be sold by the Company and each
BANK ONE Capital Trust directly or through dealers or agents designated from
time to time, which agents may be affiliates of the Company and each BANK ONE
Capital Trust. If the Company, directly or through agents, solicits offers to
purchase the securities, the Company reserves the sole right to accept and,
together with its agents, to reject, in whole or in part, any such offer.
The prospectus supplement will also contain, with respect to the securities
being sold, the names of the underwriters, dealers or agents, if any, together
with the terms of offering, the compensation of such underwriters and the net
proceeds to the Company and each BANK ONE Capital Trust.
1
<PAGE>
Any underwriters, dealers or agents participating in the offering may be
deemed "underwriters" within the meaning of the Securities Act of 1933.
One or more of our subsidiaries may buy and sell any of the securities after
the securities are issued as part of their business as a broker-dealer. Those
subsidiaries may use this prospectus and the related prospectus supplement in
such transactions. Any sale by a subsidiary will be made at the prevailing
market price at the time of sale.
WHERE YOU CAN FIND MORE INFORMATION ABOUT THE COMPANY
AND THE BANK ONE CAPITAL TRUSTS
The Company and each BANK ONE Capital Trust have filed a registration
statement with the SEC. This prospectus is part of the registration statement
but the registration statement also contains additional information and
exhibits. The Company also files proxy statements, annual, quarterly and
special reports, and other information with the SEC. You may read and copy the
registration statement and any reports, proxy statements and other information
at the public reference facilities maintained by the SEC at 450 Fifth Street,
N.W., Washington, D.C. 20549 and the SEC's Regional Offices in New York, New
York and Chicago, Illinois.
You can call the SEC for further information about its public reference
rooms at 1-800-732-0330. Such material is also available at the SEC's website
at "http://www.sec.gov".
You can also inspect reports, proxy statements and other information about
the Company at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York, and the Chicago Stock Exchange, 440 South LaSalle Street,
Chicago, Illinois.
The SEC allows the Company to incorporate documents by reference in this
prospectus. This means that by listing or referring to a document which the
Company has filed with the SEC in this prospectus, that document is considered
to be a part of this prospectus and should be read with the same care. When the
Company updates the information contained in documents which have been
incorporated by reference, by making future filings with the SEC, the
information incorporated by reference in this prospectus is considered to be
automatically updated.
The documents listed below are incorporated by reference into this
prospectus:
<TABLE>
<CAPTION>
Company SEC Filings Period
------------------- ------
<S> <C>
Annual Report on Form 10-K...................... Year ended December 31, 1998
Quarterly Report on Form 10-Q................... Quarter ended March 31, 1999
Current Reports on Form 8-K..................... Dated:
. January 19, 1999
. April 20, 1999
. May 18, 1999
</TABLE>
The Company also incorporates by reference additional documents that it may
file with the SEC between the date of this prospectus and the termination of
the offering of the securities. These documents include periodic reports, such
as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K, as well as proxy statements.
2
<PAGE>
You can obtain any of the documents incorporated by reference in this
document through us, or from the SEC through the SEC's web site at the address
described above. Documents incorporated by reference are available from us
without charge, excluding any exhibits to those documents unless the exhibit is
specifically incorporated by reference as an exhibit in this prospectus. You
can obtain documents incorporated by reference in this prospectus by requesting
them in writing or by telephone from us at the following address and telephone
number:
Investor Relations
BANK ONE CORPORATION
One First National Plaza
Mail Code IL1-0738
Chicago, Illinois 60670-0738
Telephone (312) 732-4812
If you request any incorporated documents from us, we will mail them to you
by first class mail, or another equally prompt means, within one business day
after we receive your request.
YOU SHOULD ONLY RELY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT OR INCORPORATED BY REFERENCE. THE COMPANY HAS NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION.
No separate financial statements of any BANK ONE Capital Trust are included
in this prospectus. The Company and the BANK ONE Capital Trusts do not consider
that such financial statements would be material to holders of the preferred
securities because each BANK ONE Capital Trust is a newly formed special
purpose entity, has no operating history or independent operations and is not
engaged in and does not propose to engage in any activity other than holding as
trust assets the Corresponding Junior Subordinated Debt Securities (as defined
below under the heading "The BANK ONE Capital Trusts") of the Company and
issuing the trust securities.
Furthermore, taken together, the Company's obligations under each series of
Corresponding Junior Subordinated Debt Securities, the Junior Indenture under
which the Corresponding Junior Subordinated Debt Securities will be issued, the
related Declaration and the related Preferred Securities Guarantee provide, in
the aggregate, a full, irrevocable and unconditional guarantee of payments of
distributions and other amounts due on the related preferred securities of a
BANK ONE Capital Trust. For a more detailed discussion see "The BANK ONE
Capital Trusts", "Description of Preferred Securities", "Description of Junior
Subordinated Debt Securities", "Description of the Preferred Securities
Guarantees" and "Effect of Obligations Under the Junior Subordinated Debt
Securities and Preferred Securities Guarantee". In addition, the Company does
not expect that any of the BANK ONE Capital Trusts will be filing reports with
the SEC under the Securities Exchange Act of 1934.
The Company is not making an offer of its securities in any state or country
where the offer is not permitted. You should not assume that the information in
this prospectus or any prospectus supplement is accurate as of a later date
than the date of this prospectus or any prospectus supplement.
FORWARD-LOOKING STATEMENTS
This prospectus, including information included or incorporated by reference
in this prospectus, contains certain forward-looking statements with respect to
the financial condition, results of operations, plans, objectives, future
performance and business of the Company and its predecessors, BANC ONE
CORPORATION and First Chicago NBD Corporation as well as certain information
relating to the merger of BANC ONE and First Chicago NBD to form the Company,
including, without limitation, statements relating to the cost savings, revenue
enhancements and restructuring charges estimated to result from the merger and
3
<PAGE>
statements preceded by, followed by or that include 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 businesses 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
the Company is doing business, may be less favorable than expected resulting
in, among other things, a deterioration in credit quality or a reduced demand
for credit; (g) legislative or regulatory changes may adversely affect the
business in which the Company 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 the Company and those of other
persons by whom the Company's business may be affected) may be more difficult
or expensive than anticipated; and (i) changes may occur in the securities and
capital markets.
4
<PAGE>
THE COMPANY
BANK ONE CORPORATION is a multi-bank holding company organized in 1998 under
the laws of the State of Delaware to effect the merger, effective October 2,
1998, of First Chicago NBD with BANC ONE.
Through its bank subsidiaries, the Company provides domestic retail banking,
worldwide corporate and institutional banking, and trust and investment
management services. The Company operates banking offices in Arizona, Colorado,
Florida, Illinois, Indiana, Kentucky, Louisiana, Michigan, Ohio, Oklahoma,
Texas, Utah, West Virginia and Wisconsin. The Company 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.
Like its predecessors, the Company continually evaluates its business
operations and organizational structures and routinely explores opportunities
to (i) acquire financial institutions and other financial services-related
businesses and assets, and (ii) enter into strategic alliances to expand the
scope of its services and its customer base. When consistent with its overall
business strategy, the Company also will sell assets or exit certain businesses
and markets.
The Company is a legal entity separate and distinct from its affiliate banks
and its nonbank subsidiaries (collectively, the "affiliates"). Accordingly, the
right of the Company, and thus the right of the Company's creditors and
shareholders, to participate in any distribution of the assets or earnings of
any affiliate is necessarily subject to the prior claims of creditors of the
affiliate, except to the extent that claims of the Company in its capacity as a
creditor may be recognized. The principal sources of the Company's revenues are
dividends, interest on loans and fees from its affiliates. Accordingly, the
Debt Securities and Junior Subordinated Debt Securities will be effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, and holders of Debt Securities and Junior Subordinated Debt
Securities should look only to the assets of the Company for payments on the
Debt Securities and Junior Subordinated Debt Securities.
The Company's executive offices are located at One First National Plaza,
Chicago, Illinois 60670, and the telephone number is (312) 732-4000.
5
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges for the Company, which are computed
on the basis of the total enterprise (as defined by the SEC) by dividing
earnings before fixed charges and income taxes by fixed charges, are set forth
below for the periods indicated. Also set forth below are the ratios of
earnings to combined fixed charges and preferred stock dividends, which are
computed on the basis of the total enterprise by dividing earnings before fixed
charges and income taxes by fixed charges and preferred stock dividend
requirements for the periods indicated. Fixed charges consist principally of
interest expense on all long- and short-term borrowings, excluding or including
interest on deposits as indicated.
<TABLE>
<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
--------------- ------------------------
1999 1998 1998 1997 1996 1995 1994
------- ------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding interest expense on
deposits.......................... 3.0x 2.7x 2.3x 2.4x 2.6x 2.2x 2.6x
Including interest expense on
deposits.......................... 1.8x 1.7x 1.5x 1.5x 1.6x 1.5x 1.6x
Earnings to Combined Fixed Charges
and Preferred Dividends:
Excluding interest expense on
deposits.......................... 3.0x 2.6x 2.3x 2.3x 2.5x 2.1x 2.5x
Including interest expense on
deposits.......................... 1.8x 1.7x 1.5x 1.5x 1.6x 1.5x 1.6x
</TABLE>
THE BANK ONE CAPITAL TRUSTS
Each BANK ONE Capital Trust is a statutory business trust created under
Delaware law pursuant to:
. a declaration of trust executed by the Company, as sponsor (the
"Sponsor") of the BANK ONE Capital Trust, and the BANK ONE Capital
Trustees (as defined below) of such BANK ONE Capital Trust, and
. a certificate of trust filed with the Delaware Secretary of State.
Each declaration of trust will be amended and restated in its entirety
(each, as so amended and restated, a "Declaration") substantially in the form
filed as an exhibit to the registration statement of which this prospectus
forms a part.
Each Declaration will be qualified as an indenture under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
Each BANK ONE Capital Trust may offer to the public, from time to time,
preferred securities (the "Preferred Securities") representing preferred
beneficial interests in the applicable BANK ONE Capital Trust.
Each BANK ONE Capital Trust exists for the exclusive purposes of:
. issuing and selling its Trust Securities, (as defined below)
. using the proceeds from the sale of such Trust Securities to acquire
a series of Corresponding Junior Subordinated Debt Securities (as
defined below) issued by the Company, and
. engaging in only those other activities necessary or incidental to
the above activities (such as registering the transfer of the Trust
Securities).
Each BANK ONE Capital Trust will sell common securities representing
undivided beneficial ownership interests in such BANK ONE Capital Trust to the
Company (the "Common Securities") and Preferred Securities representing
undivided beneficial ownership interests in such trust to the public. The
Common Securities and the Preferred Securities together are also referred to as
the "Trust Securities".
6
<PAGE>
When any BANK ONE Capital Trust sells its Preferred Securities to the public
it will use the money it receives together with the money it receives from the
sale of its Common Securities to buy a series of the Company's Junior
Subordinated Debt Securities (the "Corresponding Junior Subordinated Debt
Securities"). The payment terms of the Corresponding Junior Subordinated Debt
Securities will be virtually the same as the terms of that BANK ONE Capital
Trust's Preferred Securities (the "Related Preferred Securities").
Each BANK ONE Capital Trust will own only the applicable series of
Corresponding Junior Subordinated Debt Securities. The only source of funds for
each BANK ONE Capital Trust will be the payments it receives from the Company
on the Corresponding Junior Subordinated Debt Securities. The BANK ONE Capital
Trust will use such funds to make cash payments to holders of the Preferred
Securities.
Each BANK ONE Capital Trust will also have the right to be reimbursed by the
Company for certain expenses.
All of the Common Securities of each BANK ONE Capital Trust will be owned by
the Company. The Common Securities of a BANK ONE Capital Trust will rank
equally, and payments will be made on such securities pro rata, with the
Preferred Securities of such BANK ONE Capital Trust, except that upon the
occurrence and continuance of an event of default under a Declaration resulting
from an event of default under the Junior Indenture, the rights of the Company,
as holder of the Common Securities, to payment in respect of distributions and
payments upon liquidation or redemption will be subordinated to the rights of
the holders of the Preferred Securities of such BANK ONE Capital Trust. See
"Description of the Preferred Securities". The Company will acquire Common
Securities in an aggregate liquidation amount equal to not less than 3% of the
total capital of each BANK ONE Capital Trust.
The prospectus supplement relating to any Preferred Securities will contain
the details of the cash distributions to be made periodically to the holders of
the Preferred Securities.
Under certain circumstances, the Company may redeem the Corresponding Junior
Subordinated Debt Securities which it sold to a BANK ONE Capital Trust. If it
does this, the BANK ONE Capital Trust will redeem a like amount of the
Preferred Securities which it sold to the public and the Common Securities
which it sold to the Company.
Under certain circumstances the Company may terminate each BANK ONE Capital
Trust and cause the Corresponding Junior Subordinated Debt Securities to be
distributed to the holders of the Related Preferred Securities. If this
happens, owners of the Related Preferred Securities will no longer have any
interest in such BANK ONE Capital Trust and will only own the Corresponding
Junior Subordinated Debt Securities.
Generally the Company needs the approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") to redeem the Corresponding
Junior Subordinated Debt Securities or to terminate one or more BANK ONE
Capital Trusts.
Unless otherwise specified in the applicable prospectus supplement:
. Each BANK ONE Capital Trust will have a term of approximately 55 years
from the date it issues its Trust Securities, but may terminate earlier
as provided in the applicable Declaration.
. Each BANK ONE Capital Trust's business and affairs will be conducted by
its trustees (collectively, the "BANK ONE Capital Trustees").
. The trustees will be appointed by the Company as holder of the
applicable BANK ONE Capital Trust's Common Securities.
. The duties and obligations of the trustees are governed by the
Declaration for the applicable BANK ONE Capital Trust.
7
<PAGE>
. The trustees will be The Chase Manhattan Bank, as the institutional
Trustee (the "Institutional Trustee"), Chase Manhattan Bank Delaware, as
the Delaware Trustee (the "Delaware Trustee"), and one or more
individual trustees (the "Regular Trustees") who are employees or
officers of or affiliated with the Company. The Chase Manhattan Bank, as
Institutional Trustee, will act as sole indenture trustee under each
Declaration for purposes of compliance with the Trust Indenture Act. The
Chase Manhattan Bank will also act as trustee under the Guarantees and
the Junior Indenture. See "Description of the Preferred Securities
Guarantees", "Description of Debt Securities" and "Description of the
Junior Subordinated Debt Securities".
. The Company, as the holder of the Common Securities, has the right to
vote to appoint, remove or replace any of, or increase or reduce the
number of, the BANK ONE Capital Trustees of a trust.
. The Company will pay all fees and expenses related to each BANK ONE
Capital Trust and the offering of the Preferred Securities and will pay,
directly or indirectly, all ongoing costs, expenses and liabilities of
each BANK ONE Capital Trust.
. No amendment or modification may be made to any Declaration which would
adversely affect the rights or preferences of the applicable Trust
Securities without the approval of the majority in liquidation amount of
the relevant Trust Securities (which may be only the Preferred
Securities or Common Securities of such trust if only that class is
affected).
The principal executive office of each BANK ONE Capital Trust is One First
National Plaza, Chicago, Illinois 60670 and its telephone number is (312) 732-
4000.
USE OF PROCEEDS
Each BANK ONE Capital Trust will use all proceeds received from the sale of
the Preferred Securities to purchase Junior Subordinated Debt Securities from
the Company. The Company intends to use the net proceeds from the sale of the
Junior Subordinated Debt Securities and the Debt Securities for general
corporate purposes. These corporate purposes may include the funding of
investments in, or extensions of credit to, the Company's subsidiaries. Except
as described in the applicable prospectus supplement, specific allocations of
the proceeds to such purposes have not been made, although Company management
will have determined at the date of the applicable prospectus supplement that
funds should be borrowed at that time. Pending the uses described above, the
Company may temporarily invest the net proceeds in various short-term
securities or apply the net proceeds to reduce short-term indebtedness. Based
upon the historic and anticipated future growth of the Company and the
financial needs of its subsidiaries, the Company anticipates that it will, on
an ongoing basis, engage in additional financings in character and amount to be
determined.
REGULATORY MATTERS
The following discussion describes certain of the material elements of the
regulatory framework applicable to bank holding companies and their
subsidiaries and provides certain specific information relevant to the Company.
This regulatory framework is intended primarily for the protection of
depositors and the federal deposit insurance funds and not for the protection
of security holders. To the extent that the following information describes
statutory and regulatory provisions, it is qualified in its entirety by
reference to those provisions. A change in the statutes, regulations or
regulatory policies applicable to the Company or its subsidiaries may have a
material effect on the business of the Company.
General
As a bank holding company, the Company is regulated under the Bank Holding
Company Act of 1956, (the "BHCA"), and is subject to inspection, examination
and supervision by the Federal Reserve. Under the BHCA, bank holding companies
generally may not acquire the ownership or control of more than 5% of the
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voting shares or substantially all the assets of any company, including a bank,
without the Federal Reserve's prior approval. In addition, bank holding
companies generally may engage, directly or indirectly, only in banking and
such other activities as are determined by the Federal Reserve to be closely
related to banking.
The Federal Reserve will also assess the degree to which the Company and its
subsidiary banks have taken appropriate steps to assure that their electronic
data processing systems and those of their vendors are Year 2000 compliant, as
well as plans for ensuring Year 2000 readiness.
Various governmental requirements, including Sections 23A and 23B of the
Federal Reserve Act, limit borrowings by the Company and its nonbank
subsidiaries from the Company's affiliate banks. These requirements also limit
various other transactions between the Company and its nonbank subsidiaries, on
the one hand, and the Company's affiliate banks, on the other. For example,
Section 23A limits to no more than 10% of its total capital the aggregate
outstanding amount of any bank's loans and other "covered transactions" with
any particular nonbank affiliate, and limits to no more than 20% of its total
capital the aggregate outstanding amount of any bank's covered transactions
with all of its nonbank affiliates. Section 23A also generally requires that a
bank's loans to its nonbank affiliates be secured, and Section 23B generally
requires that a bank's transactions with its nonbank affiliates be on arms'
length terms.
Most of the Company's affiliate banks (the "Banks") are national banking
associations and, as such, are subject to regulation primarily by the Office of
the Comptroller of the Currency ("OCC") and, secondarily, by the Federal
Deposit Insurance Corporation ("FDIC") and the Federal Reserve. The Company's
state-chartered banks also are subject to regulation by the FDIC and the
Federal Reserve and, in addition, by their respective state banking
departments. The Banks' operations in other countries are subject to various
restrictions imposed by the laws of those countries. The Company and its
subsidiaries also are affected by the fiscal and monetary policies of the
federal government and the Federal Reserve, and by various other governmental
requirements and regulations.
Liability for Bank Subsidiaries
The Federal Reserve requires that a bank holding company act as a source of
financial and managerial strength to each of its subsidiary banks and maintain
resources adequate to support each such subsidiary bank. This support may be
required at times when the Company may not have the resources to provide it. In
addition, Section 55 of the National Bank Act, permits the OCC to order the pro
rata assessment of shareholders of a national bank whose capital has become
impaired. If a shareholder fails within three months to pay such an assessment,
the OCC can order the sale of the shareholder's stock to cover the deficiency.
In the event of a bank holding company's bankruptcy, any commitment by the bank
holding company to a federal bank regulatory agency to maintain the capital of
a subsidiary bank would be assumed by the bankruptcy trustee and entitled to
priority of payment.
Any depository institution insured by the FDIC, such as the Banks, can be
held liable for any loss incurred, or reasonably expected to be incurred, by
the FDIC in connection with (i) the default of a commonly controlled FDIC-
insured depository institution or (ii) any assistance provided by the FDIC to a
commonly controlled FDIC-insured depository institution in danger of default.
"Default" is defined generally as the appointment of a conservator or receiver
and "in danger of default" is defined generally as the existence of certain
conditions indicating that a "default" is likely to occur in the absence of
regulatory assistance. All of the Company's subsidiary banks are FDIC-insured
institutions.
In the event of the default of one of the Company's subsidiary banks, the
claims of depositors and of holders of any other general or subordinated
obligation (including the FDIC) are entitled to a priority of payment over the
claims of holders of any obligation to shareholders including any depository
institution holding company (such as the Company) or any shareholder or
creditor of the depository institution (such as holders of the Debt Securities
or of the Guarantees with respect to the Preferred Securities). Thus, in the
event of such default, any obligations of the defaulting bank to the Company
would be subordinate to all such third party claims (including otherwise
"subordinated" claims and the claims of the FDIC).
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Capital Requirements
The Company is subject to capital requirements and guidelines imposed by the
Federal Reserve, which are substantially similar to the capital requirements
and guidelines imposed by the Federal Reserve, the OCC and the FDIC on the
depository institutions within their respective jurisdictions. For this
purpose, a depository institution's or holding company's assets and certain
specified off-balance sheet commitments are assigned to four risk categories,
each weighted differently based on the level of credit risk that is assigned to
such assets or commitments. In addition, risk weighted assets are adjusted for
low-level recourse and market risk equivalent assets. A depository
institutions's or holding company's capital, in turn, is divided into three
tiers: core ("Tier 1") capital, which includes common equity, non-cumulative
perpetual preferred stock and a limited amount of cumulative perpetual
preferred stock and related surplus (excluding auction rate issues), and
minority interests in equity accounts of consolidated subsidiaries, less
goodwill, certain identifiable intangible assets and certain other assets;
supplementary ("Tier 2") capital, which includes, among other items, perpetual
preferred stock not meeting the Tier 1 definition, mandatory convertible
securities, subordinated debt and allowances for loan and lease losses, subject
to certain limitations, less certain required deductions; and market risk
("Tier 3") capital, which includes qualifying unsecured subordinated debt.
The Company, like other bank holding companies, currently is required to
maintain Tier 1 and total capital (the sum of Tier 1, Tier 2 and Tier 3
capital) equal to at least 4% and 8% of its total risk-weighted assets,
respectively. At March 31, 1999, the Company met both requirements, with Tier 1
and total capital equal to 8.2% and 11.7% of its total risk-weighted assets,
respectively.
The Federal Reserve, the FDIC and the OCC have adopted rules to incorporate
market and interest rate risk components into their risk-based capital
standards. Amendments to the risk-based capital requirements, incorporating
market risk, became effective January 1, 1998. Under the new market risk
requirements, capital will be allocated to support the amount of market risk
related to a financial institution's ongoing trading activities.
The Federal Reserve also requires bank holding companies to maintain a
minimum "leverage ratio" (Tier 1 capital to adjusted total assets) of 3%, if
the holding company has the highest regulatory rating or has implemented the
risk-based capital measures for market risk, or 4% if the holding company does
not meet these requirements. At March 31, 1999, the Company's leverage ratio
was 8.0%.
The Federal Reserve may set capital requirements higher than the minimums
noted above for holding companies whose circumstances warrant it. For example,
holding companies experiencing or anticipating significant growth may be
expected to maintain capital ratios including tangible capital positions well
above the minimum levels. Furthermore, the Federal Reserve has indicated that
it will consider a "tangible Tier I capital leverage ratio" (deducting all
intangibles) and other measures of capital strength in evaluating proposals for
expansion or new activities. The Federal Reserve has not, however, imposed any
such special capital requirement on the Company.
Each of the Banks is subject to similar risk-based and leverage capital
requirements adopted by its applicable federal banking regulatory agency. Each
of the Banks was in compliance with the applicable minimum capital requirements
as of March 31, 1999.
Failure to meet capital requirements could subject a bank to a variety of
enforcement remedies, including the termination of deposit insurance by the
FDIC, and to certain restrictions on its business, which are described below.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the applicable federal banking regulatory
agencies to implement systems for "prompt corrective action" for insured
depository institutions that do not meet minimum capital requirements within
such categories. FDICIA imposes
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progressively more restrictive constraints on operations, management and
capital distributions, depending on the category in which an institution is
classified. Failure to meet the capital guidelines could also subject a
depository institution to capital raising requirements. An "undercapitalized"
depository institution must develop a capital restoration plan and its parent
holding company must guarantee that bank's compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the depository institution's assets at the time it became
"undercapitalized" or the amount needed to comply with the plan. Furthermore,
in the event of the bankruptcy of the parent holding company, such guarantee
would take priority over the parent's general unsecured creditors. In addition,
FDICIA requires the various federal banking regulatory agencies to prescribe
certain non-capital standards for safety and soundness relating generally to
operations and management, asset quality and executive compensation and permits
regulatory action against a financial institution that does not meet such
standards.
As of March 31, 1999, each of the Banks was "well capitalized", based on the
"prompt corrective action" ratios and guidelines described above. It should be
noted, however, that a Bank's capital category is determined solely for the
purpose of applying the OCC's (or the FDIC's) "prompt corrective action"
regulations and that the capital category may not constitute an accurate
representation of the Bank's overall financial condition or prospects.
Dividend Restrictions
Various federal and state laws and regulations limit the amount of dividends
the Banks can pay to the Company without regulatory approval. For example,
approval generally is required for any national bank, or any state chartered
bank that is a member of the Federal Reserve System, to pay any dividend that
would cause the bank's total dividends paid during any calendar year to exceed
the sum of the bank's net income for the current year combined with retained
net income for the prior two years. Such a bank generally may not pay any
dividend in an amount greater than its net profits then on hand without
regulatory approval. At January 1, 1999, $2.0 billion of the total
stockholders' equity of the Banks was available for payment of dividends to the
Company without approval by the applicable regulatory authority.
In addition, federal bank regulatory authorities have authority to prohibit
the Banks from engaging in an unsafe or unsound practice in conducting their
business. The payment of dividends, depending upon the financial condition of
the bank in question, could be deemed to constitute such an unsafe or unsound
practice. The ability of the Banks to pay dividends in the future is currently,
and could be further, influenced by bank regulatory policies and capital
guidelines.
Deposit Insurance Assessments
The deposits of each of the Banks are insured up to regulatory limits by the
FDIC and, accordingly, are subject to deposit insurance assessments to maintain
the Bank Insurance Fund ("BIF") and Savings Association Insurance Fund ("SAIF")
administered by the FDIC. The FDIC has adopted regulations establishing a
permanent risk-related deposit insurance assessment system. Under this system,
the FDIC places each insured bank in one of nine risk categories based on (a)
the bank's capitalization and (b) supervisory evaluations provided to the FDIC
by the bank's primary federal regulator. Each insured bank's insurance
assessment rate is then determined by the risk category in which it is
classified by the FDIC.
Effective January 1, 1997, the annual insurance premiums on bank deposits
insured by the BIF and SAIF vary between $0.00 per $100 of deposits for banks
classified in the highest capital and supervisory evaluation categories to
$0.27 per $100 of deposits for banks classified in the lowest capital and
supervisory evaluation categories.
The Deposit Insurance Funds Act of 1996 provides for assessments to be
imposed on insured depository institutions with respect to deposits insured by
the BIF and the SAIF (in addition to assessments currently imposed on
depository institutions with respect to BIF- and SAIF-insured deposits) to pay
for the cost of
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Financing Corporation ("FICO") funding. The FDIC's 1998 FICO assessment rates
were approximately $0.012 per $100 annually for BIF-assessable deposits and
$0.061 per $100 annually for SAIF-assessable deposits. The Banks held
approximately $10.3 billion of SAIF-assessable deposits as of March 31, 1999.
The FICO assessments do not vary depending upon a depository institution's
capitalization or supervisory evaluations.
Depositor Preference Statute
Federal law provides that deposits and certain claims for administrative
expenses and employee compensation against an insured depository institution
are afforded a priority over other general unsecured claims against such
institution, including federal funds and letters of credit, in the "liquidation
or other resolution" of the institution by any receiver.
Brokered Deposits
Under FDIC regulations, no FDIC-insured depository institution can accept
brokered deposits unless it (a) is well capitalized, or (b) is adequately
capitalized and receives a waiver from the FDIC. In addition, these regulations
prohibit any depository institution that is not well capitalized from (i)
paying an interest rate on deposits in excess of 75 basis points over certain
prevailing market rates or (ii) offering "pass through" deposit insurance on
certain employee benefit plan accounts unless such institution provides certain
notice to affected depositors.
Interstate Banking
Under the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994
("Riegle-Neal"), subject to certain concentration limits and other
requirements, (a) bank holding companies such as the Company are permitted to
acquire banks and bank holding companies located in any state; (b) any bank
that is a subsidiary of a bank holding company is permitted to receive
deposits, renew time deposits, close loans, service loans and receive loan
payments as an agent for any other bank subsidiary of that holding company; and
(c) banks are permitted to acquire branch offices outside their home states by
merging with out-of-state banks, purchasing branches in other states, and
establishing de novo branch offices in other states; provided that, in the case
of any such purchase or opening of individual branches, the host state has
adopted legislation "opting in" to those provisions of Riegle-Neal; and
provided that, in the case of a merger with a bank located in another state,
the host state has not adopted legislation "opting out" of that provision of
Riegle-Neal. The Company might use Riegle-Neal to acquire banks in additional
states and to consolidate its affiliate banks under a smaller number of
separate charters.
Other Regulatory Supervision
The Company's nonbank subsidiaries and banking-related business units are
subject to regulation by various state and federal regulatory agencies and
self-regulatory organizations. Activities subject to such regulation include
investment management, investment advisory services, commodities and securities
brokerage, insurance services and products, municipal securities dealing and
transfer agency services.
Future Legislation
Various legislation, including proposals to substantially change the
financial institution regulatory system, expand the powers of banking
institutions and bank holding companies, and limit the investments that a
depository institution may make with insured funds, has from time to time been
introduced in Congress. This legislation may change banking statutes and the
operating environment of the Company and its subsidiaries in substantial and
unpredictable ways. The Company cannot determine whether such potential
legislation will ultimately be enacted, and if enacted, the ultimate effect
that this potential legislation, or implementing regulations, would have upon
the financial condition or results of operations of the Company or its
subsidiaries.
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DESCRIPTION OF DEBT SECURITIES
General
The following description applies to the debt securities (other than the
Junior Subordinated Debt Securities) offered by this prospectus (the "Debt
Securities"). The Debt Securities will be unsecured and may be issued in one or
more series. Such Debt Securities may be either senior (the "Senior
Securities") or subordinated (the "Senior Subordinated Securities") in priority
of payment.
. The Senior Securities will be issued under an Indenture dated as of
March 3, 1997, originally between BANC ONE and The Chase Manhattan
Bank ("Chase"), as trustee, which was supplemented by a First
Supplemental Indenture dated as of October 2, 1998, between the
Company and Chase, as trustee (as so supplemented, the "Senior
Indenture").
. The Senior Subordinated Securities will be issued under an Indenture
dated as of March 3, 1997, originally between BANC ONE and Chase, as
trustee, which was supplemented by a First Supplemental Indenture
dated as of October 2, 1998, between the Company and Chase, as
trustee (as so supplemented, the "Senior Subordinated Indenture").
. The Senior Indenture and the Senior Subordinated Indenture are
referred to together as the "Indentures".
. References to the "Senior Trustee" means Chase in its capacity as
trustee under the Senior Indenture or the Senior Subordinated
Indenture, as applicable.
The statements under this caption are brief summaries of certain provisions
contained in the Indentures, do not claim to be complete and are qualified in
their entirety by reference to the applicable Indenture, copies of which are
exhibits to, or incorporated by reference in, the registration statement of
which this prospectus forms a part. Whenever defined terms are used but not
defined in this prospectus, those terms have the meanings given to them in the
applicable Indenture.
The following material describes certain general terms and provisions of the
Debt Securities to which any prospectus supplement may relate. The particular
terms of any Debt Security and the extent, if any, to which these general
provisions may apply to such Debt Securities will be described in the
prospectus supplement relating to the Debt Securities.
Neither of the Indentures limits the aggregate principal amount of Debt
Securities which may be issued under it. Rather, each Indenture provides that
Debt Securities of any series may be issued under it up to the aggregate
principal amount which may be authorized from time to time by the Company. Debt
Securities may be denominated in any currency or currency unit designated by
the Company. Neither the Indentures nor the Debt Securities will limit or
otherwise restrict the amount of other debt which may be incurred or the other
securities which may be issued by the Company or any of its subsidiaries.
Debt Securities of a series may be issuable in registered form without
coupons ("Registered Securities"), in bearer form with or without coupons
attached ("Bearer Securities") or in the form of one or more global securities
in registered or bearer form (each a "Global Security"). Bearer Securities, if
any, will be offered only to non-United States persons and to offices located
outside the United States of certain United States financial institutions.
You must review the prospectus supplement for a description of the following
terms, where applicable, of each series of Debt Securities for which this
prospectus is being delivered:
. the title of the Debt Securities;
. the limit, if any, on the aggregate principal amount or aggregate
initial public offering price of the Debt Securities;
. the priority of payment of the Debt Securities;
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. the price or prices, which may be expressed as a percentage of the
aggregate principal amount, at which the Debt Securities will be
issued;
. the date or dates on which the principal of the Debt Securities will
be payable;
. the interest rate or rates, which may be fixed or variable, for the
Debt Securities, if any, or the method of determining the same;
. the date or dates from which interest, if any, on the Debt
Securities will accrue, the date or dates on which interest, if any,
will be payable, the date or dates on which payment of interest, if
any, will commence and the regular record dates for the interest
payment dates;
. the extent to which any of the Debt Securities will be issuable in
temporary or permanent global form, or the manner in which any
interest payable on a temporary or permanent global Debt Security
will be paid;
. each office or agency where the Debt Securities may be presented for
registration of transfer or exchange;
. the place or places where the principal of, premium, if any, and
interest, if any, on the Debt Securities will be payable;
. the date or dates, if any, after which the Debt Securities may be
redeemed or purchased in whole or in part, (i) at the option of the
Company or (ii) mandatorily pursuant to any sinking, purchase or
similar fund or (iii) at the option of the holder, and the
redemption or repayment price or prices;
. the terms, if any, upon which the Debt Securities may be convertible
into or exchanged for securities or indebtedness of any kind of the
Company or of any other issuer or obligor and the terms and
conditions upon which the conversion or exchange would be made,
including the initial conversion or exchange price or rate, the
conversion period and any other additional provisions;
. the authorized denomination or denominations for the Debt Securities;
. the currency, currencies or units based on or related to currencies
for which the Debt Securities may be purchased and the currency,
currencies or currency units in which the principal of, premium, if
any, and any interest, if any, on the Debt Securities may be
payable;
. any index used to determine the amount of payments of principal of,
premium, if any, and interest, if any, on the Debt Securities;
. whether any of the Debt Securities are to be issuable as Bearer
Securities and/or Registered Securities, and if issuable as Bearer
Securities, any limitations on issuance of the Bearer Securities and
any provisions regarding the transfer or exchange of the Bearer
Securities, including exchange for registered Debt Securities of the
same series;
. the payment of any additional amounts with respect to the Debt
Securities;
. whether any of the Debt Securities will be issued as Original Issue
Discount Securities (as defined below);
. information with respect to book-entry procedures, if any;
. any additional covenants or Events of Default not currently included
in the applicable Indenture; and
. any other terms of the Debt Securities not inconsistent with the
provisions of the applicable Indenture.
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If any of the Debt Securities are sold for one or more foreign currencies or
foreign currency units or if the principal of, premium, if any, or interest, if
any, on any series of Debt Securities is payable in one or more foreign
currencies or foreign currency units, the restrictions, elections, tax
consequences, specific terms and other information with respect to that issue
of Debt Securities and those currencies or currency units will be described in
the applicable prospectus supplement.
A judgment for money damages by courts in the United States, including a
money judgment based on an obligation expressed in a foreign currency, will
ordinarily be rendered only in U.S. dollars. New York statutory law provides
that a court shall render a judgment or decree in the foreign currency of the
underlying obligation and that the judgment or decree shall be converted into
U.S. dollars at the exchange rate prevailing on the date of entry of the
judgment or decree.
Debt Securities may be issued as original issue discount Debt Securities
which bear no interest or interest at a rate which at the time of issuance is
below market rates ("Original Issue Discount Securities"), to be sold at a
substantial discount below the stated principal amount thereof due at the
stated maturity of such Debt Securities. There may be no periodic payments of
interest on Original Issue Discount Securities. In the event of an acceleration
of the maturity of any Original Issue Discount Security, the amount payable to
the holder of the Original Issue Discount Security upon acceleration will be
determined in accordance with the prospectus supplement, the terms of the
security and the Indenture, but will be an amount less than the amount payable
at the maturity of the principal of the Original Issue Discount Security.
Federal income tax considerations with respect to Original Issue Discount
Securities will be described in the applicable prospectus supplement.
Registration and Transfer
Unless otherwise indicated in the applicable prospectus supplement, Debt
Securities will be issued only as Registered Securities. If Bearer Securities
are issued, the United States federal income tax consequences and other special
considerations, procedures and limitations relating to the Bearer Securities
will be described in the applicable prospectus supplement.
Debt Securities issued as Registered Securities will not have interest
coupons. Debt Securities issued as Bearer Securities will have interest coupons
attached, unless issued as zero coupon securities.
Registered Securities (other than a Global Security) may be presented for
transfer, with the form of transfer endorsed thereon duly executed, or
exchanged for other Debt Securities of the same series at the office of the
security registrar specified in the applicable Indenture. The Company has
agreed in each of the Indentures that, with respect to Registered Securities
having The City of New York as a place of payment, the Company will appoint a
security registrar or co-security registrar located in The City of New York for
such transfer or exchange. Transfer or exchange will be made without service
charge, but the Company may require payment of any taxes or other governmental
charges. Provisions relating to the exchange of Bearer Securities for other
Debt Securities of the same series, including, if applicable, Registered
Securities, will be described in the applicable prospectus supplement. In no
event, however, will Registered Securities be exchangeable for Bearer
Securities.
Book-Entry Debt Securities
Debt Securities of a series may be issued in whole or in part in the form of
one or more Global Securities. Each Global Security will be deposited with, or
on behalf of, a depositary (the "Depositary") identified in the applicable
prospectus supplement. Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form. Until exchanged in whole
or in part for the individual securities which it represents, a Global Security
may not be transferred except as a whole by the Depositary for the Global
Security to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
nominee to a successor Depositary or any nominee of the successor.
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The specific terms of the depositary arrangement for a series of Debt
Securities and certain limitations and restrictions relating to a series of
Bearer Securities in the form of one or more Global Securities will be
described in the applicable prospectus supplement. See also "Global Securities"
in this prospectus.
Payment and Paying Agents
Unless otherwise indicated in an applicable prospectus supplement, payment of
principal of, premium, if any, and any interest on Registered Securities will
be made at the office of such paying agent or paying agents as the Company may
designate from time to time. In addition, at the option of the Company, payment
of any interest may be made (i) by check mailed to the address of the person
entitled to the payment at the address in the applicable security register or
(ii) by wire transfer to an account maintained by the person entitled to the
payment as specified in the applicable security register. Unless otherwise
indicated in an applicable prospectus supplement, payment of any installment of
interest on Registered Securities will be made to the person in whose name such
Debt Security is registered at the close of business on the regular record date
for such payment.
Unless otherwise indicated in an applicable prospectus supplement, payment of
principal of, premium, if any, and any interest on Bearer Securities will be
payable, subject to any applicable laws and regulations, at the offices of such
paying agents outside the United States as the Company may designate from time
to time, at the option of the holder, by check or by transfer to an account
maintained by the holder with a bank located outside the United States. Unless
otherwise indicated in an applicable prospectus supplement, payment of interest
on Bearer Securities will be made only against surrender of the coupon for such
interest payment date. Payment on any Bearer Security will not be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a
bank located in the United States.
Consolidation, Merger or Sale of Assets
Each Indenture provides that the Company may, without the consent of the
holders of any of the Debt Securities outstanding under the applicable
Indenture, consolidate with, merge into or transfer its assets substantially as
an entirety to any person, provided that:
(1) any successor assumes the Company's obligations on the applicable
Debt Securities and under the applicable Indenture,
(2) after giving effect to the consolidation, merger or transfer, no
Event of Default (as defined in the Senior Indenture) in the case
of the Senior Securities, or Default (as defined in the Senior
Subordinated Indenture) in the case of the Senior Subordinated
Securities, will have happened and be continuing and
(3) certain other conditions under the applicable Indenture are met.
Any consolidation, merger or transfer of assets substantially as an entirety,
which meets the conditions described above, would not create any Event of
Default or Default which would entitle holders of the Debt Securities, or the
Senior Trustee acting on their behalf, to take any of the actions described
below under "Senior Securities--Events of Default, Waivers, Etc." or "Senior
Subordinated Securities--Events of Default, Defaults, Waivers, Etc."
Leveraged and Other Transactions
Each Indenture and the Debt Securities do not contain provisions which would
protect holders of the Debt Securities in the event of a highly leveraged or
other transaction involving the Company which could adversely affect the
holders of Debt Securities.
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Modification of the Indenture; Waiver of Covenants
Each Indenture provides that, with the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding Debt
Securities of each affected series, modifications and alterations of the
Indenture may be made which affect the rights of the holders of the Debt
Securities. However, no such modification or alteration may be made without
the consent of the holder of each Debt Security affected which would, among
other things,
(1) modify the terms of payment of principal, premium, if any, or
interest on the Debt Securities; or
(2) reduce the percentage in principal amount of outstanding Debt
Securities required to modify or alter the applicable Indenture.
Regarding Chase
Chase is the Senior Trustee under both the Senior Indenture and the Senior
Subordinated Indenture. Chase serves as trustee for certain subordinated debt
securities issued by the Company under indentures originally dated as of July
1, 1986, July 15, 1992, April 30, 1993, May 17, 1995 and December 1, 1995.
Chase also serves as the institutional or property trustee under
declarations of trust for three statutory business trusts formed under the
laws of the State of Delaware and sponsored by the Company. In connection with
those transactions, Chase also serves as the debt trustee under an indenture
originally dated as of November 15, 1996 and the Junior Indenture (as defined
in the section entitled "Description of Junior Subordinated Debt Securities")
with respect to junior subordinated debentures of the Company purchased by
such trusts and is the also the guarantee trustee under each of three
guarantee agreements dated as of December 3, 1996, December 5, 1996 and
January 31, 1997, from the Company to the applicable trust guaranteeing
certain payments to such trust.
As described under "Description of Junior Subordinated Debt Securities--The
Debt Trustee", Chase will be the Debt Trustee under the Junior Indenture,
Chase also serves as the Institutional Trustee for each BANK ONE Capital Trust
and will be the Preferred Guarantee Trustee under each Preferred Securities
Guarantee issued with respect to a series of Preferred Securities offered
under this prospectus.
Chase has its principal corporate trust office at 450 West 33rd Street, New
York, New York 10001.
Chase Manhattan Bank Delaware ("Chase Delaware"), an affiliate of Chase,
will serve as the Delaware Trustee for each BANK ONE Capital Trust. The office
of the Delaware Trustee for each BANK ONE Capital Trust is 1201 Market Street,
Wilmington, Delaware 19801. Chase Delaware also serves as trustee for
subordinated debt securities issued by the Company under an indenture
originally dated March 1, 1989. Chase Delaware is also the Delaware trustee
for the three Delaware business trusts described in the second paragraph of
this section.
The Company and its affiliates have normal banking relationships with Chase,
Chase Delaware and their affiliates in the ordinary course of business.
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SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the Company
and will rank on a parity with all outstanding unsecured senior indebtedness of
the Company.
Events of Default, Waivers, Etc.
An Event of Default with respect to Senior Securities of any series is
defined in the Senior Indenture as
(1) default in the payment of principal of or premium, if any, on any
of the outstanding Senior Securities of that series when due;
(2) default in the payment of interest on any of the outstanding Senior
Securities of that series when due and continuance of such default for 30
days;
(3) default in the performance of any other covenant of the Company in
the Senior Indenture with respect to Senior Securities of such series and
continuance of such default for 90 days after written notice;
(4) certain events of bankruptcy, insolvency or reorganization of the
Company; and
(5) any other event that may be specified in a prospectus supplement
with respect to any series of Senior Securities.
If an Event of Default with respect to any series of outstanding Senior
Securities occurs and is continuing, either the Senior Trustee or the holders
of not less than 25% in aggregate principal amount of the outstanding Senior
Securities of such series may declare the principal amount (or if such Senior
Securities are Original Issue Discount Securities, the portion of the principal
amount as may be specified in the terms of that series) of all Senior
Securities of that series to be immediately due and payable. The holders of a
majority in aggregate principal amount of the outstanding Senior Securities of
any series may waive an Event of Default resulting in acceleration of such
Senior Securities, but only if all Events of Default with respect to Senior
Securities of such series have been remedied and all payments due, other than
those due as a result of acceleration, have been made.
If an Event of Default occurs and is continuing, the Senior Trustee may, in
its discretion, and at the written request of holders of not less than a
majority in aggregate principal amount of the outstanding Senior Securities of
any series and upon reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request and subject to
certain other conditions set forth in the Senior Indenture will, proceed to
protect the rights of the holders of all the Senior Securities of such series.
Prior to acceleration of maturity of the outstanding Senior Securities of any
series, the holders of a majority in aggregate principal amount of the Senior
Securities may waive any past default under the Senior Indenture except a
default in the payment of principal of, premium, if any, or interest on the
Senior Securities of that series.
The Senior Indenture provides that upon the occurrence of an Event of
Default specified in clauses (1) or (2) of the first paragraph in this
subsection, the Company will, upon demand of the Senior Trustee, pay to it, for
the benefit of the holder of any such Senior Security, the whole amount then
due and payable on the affected Senior Securities for principal, premium, if
any, and interest. The Senior Indenture further provides that if the Company
fails to pay such amount upon such demand, the Senior Trustee may, among other
things, institute a judicial proceeding for the collection of such amounts.
The Senior Indenture also provides that notwithstanding any of its other
provisions, the holder of any Senior Security of any series will have the right
to institute suit for the enforcement of any payment of principal of, premium,
if any, and interest on the Senior Securities when due and that such right will
not be impaired without the consent of such holder.
The Company is required to file annually with the Senior Trustee a written
statement of officers as to the existence or non-existence of defaults under
the Senior Indenture or the Senior Securities.
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SENIOR SUBORDINATED SECURITIES
The Senior Subordinated Securities will be direct, unsecured obligations of
the Company and, unless otherwise specified in the prospectus supplement
relating to a particular series of Senior Subordinated Securities, will be
subject to the subordination provisions described below.
Subordination
The Company intends that the Senior Subordinated Securities it issues be
treated as capital for calculation of regulatory capital ratios. The Federal
Reserve has issued interpretations of its capital regulations indicating, among
other things, that subordinated debt of bank holding companies issued on or
after September 4, 1992 is includable in capital for calculation of regulatory
capital ratios only if the subordination of the debt meets certain criteria and
if the debt may be accelerated only for bankruptcy, insolvency and similar
matters (the "Subordination Interpretations"). Accordingly, the Senior
Subordinated Indenture contains subordination and acceleration provisions for
the Senior Subordinated Securities which are intended to be consistent with the
Subordination Interpretations. Subordinated debt of the Company (including any
of its predecessor corporations) issued after September 4, 1992, which meets
the Subordination Interpretations are referred to in this prospectus as "New
Subordinated Securities".
Senior Subordinated Securities offered under this prospectus will constitute
New Subordinated Securities unless otherwise specified in the applicable
prospectus supplement. See "--Events of Default, Defaults, Waivers, Etc."
below.
. Upon any distribution of its assets following any dissolution,
winding up, liquidation or reorganization of the Company, the
payment of the principal of, premium, if any, and interest on the
Senior Subordinated Securities is to be subordinated in right of
payment, to the extent provided in the Senior Subordinated
Indenture, to the prior payment in full of all Senior Indebtedness
(as defined below).
. In certain events of bankruptcy or insolvency of the Company, the
payment of the principal of and interest on the Senior Subordinated
Securities will, to the extent provided in the Senior Subordinated
Indenture, also be effectively subordinated in right of payment to
the prior payment in full of all General Obligations (as defined
below).
. Upon any distribution of its assets following any dissolution,
winding up, liquidation or reorganization of the Company, the
holders of Senior Indebtedness will first be entitled to receive
payment in full of all amounts due or to become due before the
holders of the Senior Subordinated Securities will be entitled to
receive any payment in respect of the principal of, premium, if any,
or interest on the Senior Subordinated Securities.
. If upon any such payment or distribution of assets there remain,
after giving effect to such subordination provisions in favor of the
holders of Senior Indebtedness, any amounts of cash, property or
securities available for payment or distribution on the Senior
Subordinated Securities ("Excess Proceeds") and if, at the time, any
creditors in respect of General Obligations have not received
payment in full of all amounts due or to become due on or in respect
of the General Obligations, then the Excess Proceeds will first be
applied to pay or provide for the payment in full of the General
Obligations before any payment or distribution may be made on the
Senior Subordinated Securities.
. The Company's other New Subordinated Securities issued prior to the
date of this prospectus contain similar provisions subordinating any
payment or distribution on such New Subordinated Securities to the
payment of amounts due or to become due on or in respect of general
obligations of the Company.
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. In addition, no payment may be made of the principal of, premium, if
any, or interest on the Senior Subordinated Securities, or for any
redemption, retirement, purchase or other acquisition of any of the
Senior Subordinated Securities, at any time when
(1) there is a default in the payment of the principal of, premium,
if any, interest on or otherwise in respect of any Senior
Indebtedness or
(2) any event of default with respect to any Senior Indebtedness has
occurred and is continuing, or would occur as a result of such
payment on the Senior Subordinated Securities or any redemption,
retirement, purchase or other acquisition of any of the Senior
Subordinated Securities, permitting the holders of such Senior
Indebtedness to accelerate the maturity of the Senior
Indebtedness.
. By reason of the subordination in favor of the holders of Senior
Indebtedness, in the event of a distribution of its assets following
any dissolution, winding up, liquidation or reorganization of the
Company, certain creditors of the Company who are not holders of
Senior Indebtedness or of Senior Subordinated Securities may recover
less, ratably, than holders of Senior Indebtedness and may recover
more, ratably, than holders of the Senior Subordinated Securities.
. By reason of the subordination of payments and distributions on the
New Subordinated Securities to creditors in respect of general
obligations, in the event of a distribution of its assets following
any dissolution, winding up, liquidation or reorganization of the
Company, holders of Old Subordinated Securities (as defined below)
may recover less, ratably, than creditors in respect of general
obligations and may recover more, ratably, than the holders of New
Subordinated Securities.
. Subject to payment in full of all Senior Indebtedness, the holders
of Senior Subordinated Securities will be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company
applicable to Senior Indebtedness.
. Subject to payment in full of all General Obligations, the holders
of the New Subordinated Securities will be subrogated to the rights
of the creditors in respect of General Obligations to receive
payments or distributions of cash, property or securities of the
Company applicable to such creditors in respect of General
Obligations.
. The Senior Subordinated Securities rank and will rank on a parity
with the Existing Subordinated Indebtedness (as defined below)
subject to the obligations of the holders of Senior Subordinated
Securities (and, generally, holders of other New Subordinated
Securities) to pay over to creditors in respect of general
obligations any proceeds remaining after payments and distributions
to holders of Senior Indebtedness.
. In the event of a distribution of its assets upon any dissolution,
winding up, liquidation or reorganization of the Company, the
holders of the New Subordinated Securities (including holders of the
Senior Subordinated Securities) may receive less, ratably, than
holders of Old Subordinated Securities.
. The Senior Subordinated Securities rank and will rank senior to
Junior Subordinated Indebtedness (as defined below) of the Company.
"Senior Indebtedness" is the principal of, premium, if any, and interest on
(i) all of the Company's indebtedness for money borrowed, other than
subordinated securities (including the Senior Subordinated Securities) issued
under the Senior Subordinated Indenture and the Company's Existing Subordinated
Indebtedness, whether outstanding on the date of execution of the Senior
Subordinated Indenture or created afterward, assumed or incurred, except such
indebtedness that by its terms is expressly stated to be not superior in right
of payment to the subordinated securities issued under the Senior Subordinated
Indenture or the
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Existing Subordinated Indebtedness or to rank on a parity with the subordinated
securities issued under the Senior Subordinated Indenture or the Existing
Subordinated Indebtedness; and (ii) any deferrals, renewals or extensions of
any such Senior Indebtedness. The term "indebtedness for money borrowed" as
used in the prior sentence includes, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
There is no limitation on the issuance of additional Senior Indebtedness of
the Company.
The Company's "Existing Subordinated Indebtedness" is comprised of the
Company's 7.25% Subordinated Notes Due August 1, 2002, the Company's 8.74%
Subordinated Notes Due September 15, 2003, the Company's 7.00% Subordinated
Notes due July 15, 2005 (the "July 2005 Notes"), the Company's 9.875%
Subordinated Notes Due March 1, 2009, the Company's 10.00% Subordinated Notes
Due August 15, 2010, the Company's 7.75% Subordinated Debentures due on July
15, 2025 (the "July 2025 Debentures"), the Company's 7.625% Subordinated
Debentures due October 15, 2026 (the "October 2026 Debentures"), the Company's
9 7/8% Subordinated Notes Due July 1999, the Company's 9% Subordinated Notes
Due June 15, 1999, the Company's 9 7/8% Subordinated Notes Due August 15, 2000,
the Company's 11 1/4% Subordinated Notes Due February 20, 2001, the Company's
10 1/4% Subordinated Notes Due May 1, 2001, the Company's 9 1/4% Subordinated
Notes Due November 15, 2001, the Company's 8 7/8% Subordinated Notes Due March
15, 2002, the Company's 8 1/4% Subordinated Notes Due June 15, 2002, the
Company's 9 1/5% Subordinated Notes Due December 17, 2001, the Company's 7 5/8%
Subordinated Notes Due January 15, 2003 (the "January 2003 Notes"), the
Company's 6 7/8% Subordinated Notes Due June 15, 2003 (the "June 2003 Notes"),
the Company's Floating Rate Subordinated Notes Due July 28, 2003 (the "July
2003 Notes"), the Company's 6 3/8% Subordinated Notes Due January 30, 2009 (the
"January 2009 Notes"), the Company's 7 1/8% Subordinated Notes Due 2007 (the
"2007 Notes"), the Company's 7 1/4% Subordinated Debentures Due 2004 (the "2004
Notes"), the Company's 8.10% Subordinated Notes Due 2002, the Company's 7.40%
Subordinated Debenture due May 10, 2023 (the "2023 Debentures"), the Company's
Floating Rate Subordinated Notes Due 2005, the Company's 6 1/8% Subordinated
Notes Due February 15, 2006 (the "February 2006 Notes"), the subordinated notes
issued pursuant to First Chicago NBD's Medium-Term Note Program, Series G (the
"FCN MTN Notes") and the subordinated notes issued pursuant to the Company's
Medium-Term Note Programs, Series A and Series B (the "Series A and Series B
MTN Notes").
New Subordinated Securities are comprised of subordinated securities
(including the Senior Subordinated Securities) issued under the Senior
Subordinated Indenture, the January 2003 Notes, the June 2003 Notes, the July
2003 Notes, the July 2005 Notes, the February 2006 Notes, the January 2009
Notes, the 2007 Notes, the 2023 Debentures, the July 2025 Debentures, the
October 2026 Debentures, the FCN MTN Notes and the Series A and Series B MTN
Notes.
All other Existing Subordinated Indebtedness constitutes "Old Subordinated
Securities".
Unless otherwise specified in the prospectus supplement relating to a series
of Senior Subordinated Securities, "General Obligations" means all obligations
of the Company to make payment on account of claims in respect of derivative
products such as interest and foreign exchange rate contracts, commodity
contracts and similar arrangements, other than (i) obligations on account of
Senior Indebtedness, (ii) obligations on account of indebtedness for money
borrowed ranking on a parity with or subordinate to the Senior Subordinated
Securities and (iii) obligations which by their terms are expressly stated not
to be superior in right of payment to the Senior Subordinated Securities or to
rank on a parity with the Senior Subordinated Securities.
Notwithstanding the previous paragraph, in the event that any rule,
guideline or interpretation promulgated or issued by the Federal Reserve (or
other competent regulatory agency or authority), as from time to time in
effect, establishes or specifies criteria for the inclusion in regulatory
capital of subordinated debt of a bank holding company requiring that such
subordinated debt be subordinated to obligations to creditors in addition to
those set forth above, then the term "General Obligations" will also include
such additional obligations to
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creditors, as from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" has the meaning found
in Section 101(4) of the Bankruptcy Code of 1978, as amended to the date of the
Senior Subordinated Indenture.
Unless otherwise specified in the prospectus supplement relating to a series
of Senior Subordinated Securities, "Junior Subordinated Indebtedness", means
the principal of, premium, if any, and interest on all of the Company's
indebtedness for money borrowed (but excluding trade accounts payable arising
in the ordinary course of business) whether outstanding on the date of
execution of the Senior Subordinated Indenture or thereafter created, assumed
or incurred and any deferrals, renewals or extensions of such debt, provided
such debt (i) is by its terms subordinated to the Senior Subordinated
Securities, (ii) is between or among the Company and certain affiliated
financing entities including all debt securities and guarantees in respect of
those debt securities issued to certain financing entities or a trustee of a
financing entity sponsored by the Company, (iii) is evidenced by securities
issued under either the indentures dated as of November 15, 1996 or the Junior
Indenture, each between the Company and Chase, as trustee (unless such
securities are by their terms senior in right of payment to the securities
heretofore issued under said indentures), or (iv) is a guarantee of the Company
on a subordinated basis under certain guarantee agreements dated December 3,
1996, December 5, 1996 or January 31, 1997, relating to securities issued by
certain financing entities affiliated with the Company. The term "indebtedness
for money borrowed" as used in the prior sentence includes, without limitation,
any obligation of, or any obligation guaranteed by, the Company for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, and any deferred obligation for the payment
of the purchase price of property or assets.
The Junior Subordinated Debt Securities and the Preferred Securities
Guarantees, if issued, will constitute Junior Subordinated Indebtedness.
As of March 31, 1999, the aggregate amount of Senior Indebtedness and
General Obligations of the Company was approximately $13.7 billion.
Limited Rights of Acceleration
Unless otherwise specified in the prospectus supplement relating to a series
of Senior Subordinated Securities, payment of principal of the Senior
Subordinated Securities may be accelerated only in case of the bankruptcy,
insolvency or reorganization of the Company. There is no right of acceleration
in the case of a default in the payment of principal of, premium, if any, or
interest on the Senior Subordinated Securities or the performance of any other
covenant of the Company in the Senior Subordinated Indenture.
Payment of principal of the Old Subordinated Securities may also be
accelerated in the case of the bankruptcy, insolvency or reorganization of the
Company. For certain Old Subordinated Securities, payment of principal also may
be accelerated in the case of insolvency or receivership of The First National
Bank of Chicago or Bank One, Michigan (formerly, NBD Bank, Detroit, Michigan).
Events of Default, Defaults, Waivers, Etc.
An Event of Default with respect to Senior Subordinated Securities of any
series is defined in the Senior Subordinated Indenture to include certain
events involving the bankruptcy, insolvency or reorganization of the Company
and any other Event of Default provided for Senior Subordinated Securities of
that series. A "Default" with respect to Senior Subordinated Securities of any
series is defined in the Senior Subordinated Indenture as:
(1) an Event of Default with respect to such series;
(2) default in the payment of the principal of or premium, if any, on
any Senior Subordinated Security of the series when due;
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(3) default in the payment of interest upon any Senior Subordinated
Security of the series when due and the continuance of such default for a
period of 30 days;
(4) default in the performance of any other covenant or agreement of
the Company in the Senior Subordinated Indenture with respect to Senior
Subordinated Securities of the series and continuance of the default for 90
days after written notice; or
(5) any other Default provided with respect to Senior Subordinated
Securities of any series.
If an Event of Default with respect to any series of outstanding Senior
Subordinated Securities occurs and is continuing, either the Senior Trustee or
the holders of not less than 25% in aggregate principal amount of the Senior
Subordinated Securities of the series may declare the principal amount (or if
such Senior Subordinated Securities are Original Issue Discount Securities, the
portion of the principal amount as may be specified in the terms of that
series) of all Senior Subordinated Securities of that series to be immediately
due and payable.
The holders of a majority in aggregate principal amount of the Senior
Subordinated Securities of any series outstanding under the Senior Subordinated
Indenture may waive an Event of Default resulting in acceleration of such
Senior Subordinated Securities, but only if all Defaults have been remedied and
all payments due (other than those due as a result of acceleration) have been
made.
If a Default occurs and is continuing, the Senior Trustee may, in its
discretion, and at the written request of holders of not less than a majority
in aggregate principal amount of the outstanding Senior Subordinated Securities
of any series and upon reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request and subject to
certain other conditions described in the Senior Subordinated Indenture will,
proceed to protect the rights of the holders of all the Senior Subordinated
Securities of the series.
Prior to acceleration of maturity of the outstanding Senior Subordinated
Securities of any series, the holders of a majority in aggregate principal
amount of such Senior Subordinated Securities may waive any past default under
the Senior Subordinated Indenture except a default in the payment of principal
of, premium, if any, or interest on the Senior Subordinated Securities of the
series.
The Senior Subordinated Indenture provides that in the event of a Default
specified in clauses (2) or (3) of the first paragraph in this subsection, the
Company will, upon demand of the Senior Trustee, pay to it, for the benefit of
the holder of any Senior Subordinated Security, the whole amount then due and
payable on the Senior Subordinated Security for principal, premium, if any, and
interest. The Senior Subordinated Indenture further provides that if the
Company fails to pay the amount upon such demand, the Senior Trustee may, among
other things, institute a judicial proceeding for the collection of the amount.
The Senior Subordinated Indenture also provides that notwithstanding any
other provision of the Senior Subordinated Indenture, the holder of any Senior
Subordinated Security of any series will have the right to institute suit for
the enforcement of any payment of principal of, premium, if any, and interest
on the Senior Subordinated Security on the stated maturities and that such
right will not be impaired without the consent of such holder.
The Company is required to file annually with the Senior Trustee a written
statement of officers as to the existence or non-existence of defaults under
the Senior Subordinated Indenture or the Senior Subordinated Securities.
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DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
Junior subordinated debt securities (the "Junior Subordinated Debt
Securities") may be issued from time to time in one or more series under an
Indenture dated as of January 1, 1997 (the "Junior Indenture"), between the
Company and Chase, as trustee (the "Debt Trustee"). The terms of the Junior
Subordinated Debt Securities will include those stated in the Junior Indenture
and those made part of the Junior Indenture by reference to the Trust Indenture
Act. The following summary of certain provisions contained in the Junior
Indenture is not complete and is subject to the provisions of, and is qualified
in its entirety by, the Junior Indenture, which is filed or incorporated by
reference as an exhibit to the registration statement of which this prospectus
forms a part, and the Trust Indenture Act. Whenever particular provisions or
defined terms in the Junior Indenture are referred to herein, such provisions
or defined terms are incorporated by reference herein.
General
The Junior Subordinated Debt Securities will be unsecured, subordinated
obligations of the Company. The Junior Indenture does not limit the aggregate
principal amount of Junior Subordinated Debt Securities which may be issued
under it. The Junior Subordinated Debt Securities are issuable in one or more
series pursuant to an indenture supplemental to the Junior Indenture or a
resolution of the Company's Board of Directors or a committee appointed by the
Board.
In the event Junior Subordinated Debt Securities are issued to a BANK ONE
Capital Trust or a trustee of such trust in connection with the issuance of
Trust Securities by the BANK ONE Capital Trust, such Corresponding Junior
Subordinated Debt Securities subsequently may be distributed pro rata to the
holders of the Trust Securities in connection with the dissolution of the BANK
ONE Capital Trust, as described in the prospectus supplement relating to the
Trust Securities. Only one series of Corresponding Junior Subordinated Debt
Securities will be issued to a BANK ONE Capital Trust or a trustee of such
trust in connection with the issuance of Trust Securities by the BANK ONE
Capital Trust.
You must review the prospectus supplement relating to the particular Junior
Subordinated Debt Securities for the following terms:
. the specific designation of the Junior Subordinated Debt Securities;
. the aggregate principal amount of the Junior Subordinated Debt
Securities;
. the percentage of their principal amount at which the Junior
Subordinated Debt Securities will be issued;
. the date or dates on which the principal of and premium, if any, on
the Junior Subordinated Debt Securities will be payable and the
right, if any, to extend such date or dates;
. the interest rate or rates, which may be fixed or variable, if any,
of the Junior Subordinated Debt Securities, or the method of
determination of such rate or rates;
. the date or dates from which such interest will accrue, the interest
payment dates on which such interest will be payable or the manner
of determination of such interest payment dates and the record dates
for the determination of holders to whom interest is payable on any
the interest payment dates;
. the right, if any, to extend the interest payment periods and the
duration of an extension;
. the period or periods, if any, within which, the price or prices of
which, and the terms and conditions upon which the Junior
Subordinated Debt Securities may be redeemed, in whole or in part;
. the right and/or obligation, if any, of the Company to redeem or
purchase the Junior Subordinated Debt Securities pursuant to any
sinking fund or similar provisions or at the option
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at the holder of the security and the period or periods for which,
the price or prices at which, and the terms and conditions upon
which, the Junior Subordinated Debt Securities will be redeemed or
repurchased, in whole or in part, pursuant to such right and/or
obligation;
. the terms and conditions, if any, upon which the Junior Subordinated
Debt Securities may be converted into shares of the common stock of
BANK ONE, including the conversion price and the circumstances, if
any, under which such conversion right will expire;
. the terms of subordination;
. the form of the Junior Subordinated Debt Securities; and
. any other specific terms of the Junior Subordinated Debt Securities.
If a prospectus supplement specifies that a series of Junior Subordinated
Debt Securities is denominated in a currency or currency unit other than United
States dollars, the prospectus supplement will also specify the denomination in
which the Junior Subordinated Debt Securities will be issued and the coin or
currency in which the principal, premium, if any, and interest, if any, on the
Junior Subordinated Debt Securities will be payable.
The Junior Indenture does not contain provisions that protect holders of the
Junior Subordinated Debt Securities in the event of a highly leveraged
transaction or other similar transaction involving BANK ONE that may adversely
affect such holders.
Form, Exchange, Registration, Transfer and Payment
Unless otherwise specified in the applicable prospectus supplement, the
Junior Subordinated Debt Securities will be issued in fully registered form
without coupons and in denominations of $1,000 and multiples of $1,000. No
service charge will be made for any transfer or exchange of the Junior
Subordinated Debt Securities, but the Company or the Debt Trustee may require
payment of a sum sufficient to cover any tax or other government charge payable
in connection with such transfer or exchange.
Unless otherwise provided in the applicable prospectus supplement, principal
and premium, if any, or interest, if any, will be payable and the Junior
Subordinated Debt Securities may be surrendered for payment or transferred at
the offices of the Debt Trustee as paying and authenticating agent, provided
that payment of interest, if any, may be made at the option of the Company (i)
by check mailed to the address of the person entitled to such payment as it
appears in the security register or (ii) by wire transfer to an account
maintained by the person entitled to such payment as specified in the
applicable security register.
Book-Entry Junior Subordinated Debt Securities
The Junior Subordinated Debt Securities of a series may be issued in whole
or in part in the form of one or more Global Securities that will be deposited
with, or on behalf of, a Depositary, or its nominee, which will be identified
in the prospectus supplement relating to such series. In such a case, one or
more Global Securities will be issued in a denomination or aggregate
denomination equal to the portion of the aggregate principal amount of
outstanding Junior Subordinated Debt Securities of the series to be represented
by such Global Security or Securities. Until it is exchanged in whole or in
part for Junior Subordinated Debt Securities in definitive registered form, a
Global Security may not be registered for transfer or exchange except as a
whole by the Depositary for the Global Security to a nominee for the Depositary
and except in the circumstances described in the applicable prospectus
supplement.
The specific terms of the depositary arrangement for any portion of a series
of Junior Subordinated Debt Securities to be represented by a Global Security
and a description of the Depositary will be provided in the applicable
prospectus supplement. See also "Global Securities" in this prospectus.
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Subordination
The Junior Subordinated Debt Securities will be subordinated and junior in
right of payment to certain other indebtedness of the Company (which may
include both senior and subordinated indebtedness for money borrowed) to the
extent described in the applicable prospectus supplement.
Certain Covenants of the Company
The Company has covenanted, that it will not, and will not permit any
subsidiary of the Company to,
. declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any
of BANK ONE's capital stock or
. make any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Company
that rank on a parity in all respects with or junior in interest to
the Junior Subordinated Debt Securities or make any guarantee
payments with respect to any guarantee by the Company of the Senior
Debt Securities of any subsidiary of the Company if such guarantee
ranks on a parity with or junior in interest to the Junior
Subordinated Debt Securities, other than:
(1) dividends or distributions in common stock of BANK ONE,
(2) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or
repurchase of any rights under such plan,
(3) payments under the Preferred Securities Guarantee or Common
Securities Guarantee relating to Trust Securities issued by the BANK
ONE Capital Trust holding the Corresponding Junior Subordinated Debt
Securities,
(4) purchases of common stock related to the issuance of common
stock or rights under any of the Company's benefit plans for its
directors, officers or employees, and
(5) obligations under any dividend reinvestment and stock purchase
plan,
if at the time (i) there has occurred any event of which the Company has
actual knowledge that (a) with the giving of notice or the lapse of time, or
both, would constitute an "Event of Default" under the Junior Indenture with
respect to the Junior Subordinated Debt Securities of such series and (b) in
respect of which the Company will not have taken reasonable steps to cure,
(ii) if the Junior Subordinated Debt Securities are held by a BANK ONE Capital
Trust, the Company is in default with respect to its payment of any
obligations under the Preferred Securities Guarantee or Common Securities
Guarantee relating to the BANK ONE Capital Trust or (iii) the Company has
given notice of its election to defer payments of interest on the Junior
Subordinated Debt Securities by extending the interest payment period as
provided in the Junior Indenture with respect to the Junior Subordinated Debt
Securities and has not rescinded such notice, or such period, or any extension
of such period is continuing.
In the event Corresponding Junior Subordinated Debt Securities are issued
to a BANK ONE Capital Trust or its trustee in connection with the issuance of
Trust Securities of the BANK ONE Capital Trust, for so long as the Trust
Securities remain outstanding, the Company will covenant:
. to maintain directly or indirectly 100% ownership of the Common
Securities of the BANK ONE Capital Trust, provided that certain
successors which are permitted under the Junior Indenture may succeed
to the Company's ownership of the Common Securities;
. as holder of the Common Securities, not to voluntarily terminate,
wind-up or liquidate the BANK ONE Capital Trust, except upon prior
approval of the Federal Reserve if then required under applicable
capital guidelines or policies of the Federal Reserve and (a) in
connection with
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a distribution of Corresponding Junior Subordinated Debt Securities
to the holders of the Trust Securities in liquidation of the BANK ONE
Capital Trust or (b) in connection with certain mergers
consolidations or amalgamations permitted by the Declaration of the
BANK ONE Capital Trust; and
. to use its reasonable efforts, consistent with the terms and
provisions of the Declaration of the BANK ONE Capital Trust, to cause
the BANK ONE Capital Trust to remain classified as a grantor trust
and not as an association taxable as a corporation for United States
federal income tax purposes.
Limitation on Mergers and Sales of Assets
The Company will not consolidate with, or merge into, any corporation or
convey or transfer its properties and assets substantially as an entirety to
any person unless
. the successor entity expressly assumes the obligations of the Company
under the Junior Indenture, and
. after giving effect thereto, no Event of Default, and no event which,
after notice or lapse of time, or both, would become an Event of
Default, will have occurred and be continuing under the Junior
Indenture.
Events of Default, Waiver and Notice
The Junior Indenture provides that any one or more of the following events
which has occurred and is continuing constitutes an "Event of Default" with
respect to each series of Junior Subordinated Debt Securities:
(1) default for 30 days in payment of any interest on the Junior
Subordinated Debt Securities of that series, when due; provided, however,
that a valid extension of the interest payment period by the Company will
not constitute a default in the payment of interest for this purpose; or
(2) default in payment of principal and premium, if any, on the Junior
Subordinated Debt Securities of that series when due either at maturity,
upon redemption, by declaration or otherwise; provided, however, that a
valid extension of the maturity of such Junior Subordinated Debt Securities
will not constitute a default for this purpose; or
(3) default by the Company in the performance, or breach, in any
material respect of any other of the covenants or agreements in the Junior
Indenture which will not have been remedied for a period of 90 days after
notice; or
(4) certain events of bankruptcy, insolvency or reorganization of the
Company; or
(5) any other Event of Default provided with respect to a particular
series of Junior Subordinated Debt Securities as described in the related
prospectus supplement.
The Junior Indenture provides that the Debt Trustee may withhold notice to
the holders of a series of Junior Subordinated Debt Securities, except in
payment of principal or of interest or premium on the Junior Subordinated Debt
Securities, if the Debt Trustee considers it in the interest of such holders
to do so.
The Junior Indenture provides that if an Event of Default with respect to
any series of Junior Subordinated Debt Securities has occurred and is
continuing, either the Debt Trustee or the holders of 25 percent in principal
amount of the outstanding Junior Subordinated Debt Securities of such affected
series may declare the principal of all Junior Subordinated Debt Securities of
the series to be due and payable immediately, but upon certain conditions such
declaration may be annulled and past defaults may be waived, except defaults
in payment of principal of or interest or premium, if any, on the Junior
Subordinated Debt Securities, by the holders of a majority in principal amount
of the outstanding Junior Subordinated Debt Securities of the series.
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The holders of a majority in principal amount of the outstanding Junior
Subordinated Debt Securities of any affected series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Debt Trustee under the Junior Indenture with respect to the
series, provided that the holders of the Junior Subordinated Debt Securities
will have offered to the Debt Trustee reasonable indemnity against expenses and
liabilities.
The Junior Indenture also provides that notwithstanding any of its other
provisions, the holder of any Junior Subordinated Debt Security of any series,
will have the right to institute suit for the enforcement of any payment of
principal of, premium, if any, and interest on the Junior Subordinated Debt
Security on the stated maturity or upon repayment or redemption of such Junior
Subordinated Debt Security and that this right will not be impaired without the
consent of such holder.
The Junior Indenture requires the annual filing by the Company with the Debt
Trustee of a certificate as to the absence of certain defaults under the Junior
Indenture.
Modification of the Junior Indenture
The Junior Indenture contains provisions permitting the Company and the Debt
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Junior Subordinated Debt Securities of all series
affected by the modification at the time outstanding, to modify the Indenture
or the rights of the holders of the Junior Subordinated Debt Securities.
However, no such modification will
(1) modify the terms of payment of principal, premium, if any, or
interest on any Junior Subordinated Senior Debt Securities, or impair or
affect the right of any holder of Junior Subordinated Debt Securities to
institute suit for the payment of the security or the right of prepayment,
if any, at the option of the holder, without the consent of the holder of
each Junior Subordinated Debt Security so affected, or
(2) reduce the percentage of holders of Junior Subordinated Debt
Securities whose consent is required for any such modification, unless the
consent of the holders of each Junior Subordinated Debt Security affected
is obtained.
If Junior Subordinated Debt Securities of a series are held by a BANK ONE
Capital Trust or a trustee of such trust, a supplemental indenture requiring
such consent will not be effective until the holders of a majority in
liquidation amount of the Trust Securities of the applicable BANK ONE Capital
Trust consent to such supplemental indenture. If the consent of the holders of
each outstanding Junior Subordinated Debt Security of a series is required,
such supplemental indenture will not be effective until each holder of the
Trust Securities of the applicable BANK ONE Capital Trust consents to such
supplemental indenture.
As a result of these pass through voting rights with respect to
modifications to the Junior Indenture, no modification to such indenture will
be effective until the holders of a majority in liquidation amount of the Trust
Securities consent to such modification and no modification described in
clauses (1) and (2) above will be effective without the consent of each holder
of Preferred Securities and each holder of Common Securities of the applicable
BANK ONE Capital Trust.
Satisfaction and Discharge
The Junior Indenture provides among other things, that when all Junior
Subordinated Debt Securities not previously delivered to the Debt Trustee for
cancellation (i) have become due and payable or (ii) will become due and
payable at their stated maturity within one year, the Company may deposit or
cause to be deposited with the Debt Trustee funds, in trust, for the purpose
and in an amount sufficient to pay and discharge the entire indebtedness on the
Junior Subordinated Debt Securities not previously delivered to the Debt
Trustee for cancellation, for the principal, premium, if any, and interest to
the date of the deposit or to the stated maturity, as the case may be. Upon
such deposit, the Junior Indenture will cease to be of further effect except as
to the
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Company's obligations to pay all other sums due pursuant to the Junior
Indenture and to provide the officers' certificates and opinions of counsel
required under the Junior Indenture, and the Company will be deemed to have
satisfied and discharged the Indenture.
Governing Law
The Junior Indenture and the Junior Subordinated Debt Securities will be
governed by, and construed in accordance with, the laws of the State of New
York.
The Debt Trustee
Chase serves as the Debt Trustee under the Junior Indenture, as well as the
Institutional Trustee and the Preferred Guarantee Trustee. Chase also will
serve as Senior Trustee for the Debt Securities offered pursuant to this
prospectus. For a description of the Company's other relationships with Chase,
see "Description of Debt Securities--Regarding Chase" in this prospectus.
DESCRIPTION OF THE PREFERRED SECURITIES
Each BANK ONE Capital Trust may issue only one series of Preferred
Securities and such series will have the terms described in the applicable
prospectus supplement. The Declaration of each BANK ONE Capital Trust
authorizes the Regular Trustees of that BANK ONE Capital Trust to issue on
behalf of the BANK ONE Capital Trust one series of Preferred Securities. The
Declaration will be qualified as an indenture under the Trust Indenture Act.
The Preferred Securities will have terms, including with respect to
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as described in the
Declaration or made part of the Declaration by the Trust Indenture Act and
which will mirror the terms of the Corresponding Junior Subordinated Debt
Securities held by the BANK ONE Capital Trust and described in the applicable
prospectus supplement.
You must review the prospectus supplement relating to the Preferred
Securities of the BANK ONE Capital Trust for specific terms, including:
. the distinctive designation of the Preferred Securities;
. the number and the initial public offering price of Preferred
Securities issued by the BANK ONE Capital Trust;
. the annual distribution rate (or method of determining such rate)
for the Preferred Securities, the date or dates upon which the
distributions will be payable and the date or dates from which
distributions will accrue;
. whether distributions on the Preferred Securities will be
cumulative, and, in the case of Preferred Securities having
cumulative distribution rights, the date or dates or method of
determining the date or dates from which the distributions on the
Preferred Securities will be cumulative;
. the amount or amounts which will be paid out of the assets of the
BANK ONE Capital Trust to the holders of Preferred Securities of the
BANK ONE Capital Trust upon voluntary or involuntary dissolution,
winding-up or termination of the BANK ONE Capital Trust;
. the obligation, if any, of the BANK ONE Capital Trust to purchase or
redeem Preferred Securities issued by the BANK ONE Capital Trust and
the price or prices at which, the period or periods within which,
and the terms and conditions upon which, the Preferred Securities
will be purchased or redeemed, in whole or in part, pursuant to such
obligation;
. the voting rights, if any, of the Preferred Securities in addition
to those required by law, including the number of votes per
Preferred Security and any requirement for the approval by
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the holders of Preferred Securities, or of Preferred Securities
issued by one or more BANK ONE Capital Trusts, or of both, as a
condition to specified action or amendments to the Declaration of the
BANK ONE Capital Trust;
. the terms and conditions, if any, upon which the Corresponding Junior
Subordinated Debt Securities may be distributed to holders of
Preferred Securities;
. the right and/or obligation, if any, of BANK ONE to redeem or
purchase the Preferred Securities pursuant to any sinking fund or
similar provisions or at the option at the holder of the Preferred
Securities and the period or periods for which, the price or prices
at which, and the terms and conditions upon which, the Preferred
Securities will be redeemed or repurchased, in whole or in part,
pursuant to such right and/or obligation;
. the terms and conditions, if any, upon which the Preferred Securities
may be converted into shares of the common stock of BANK ONE,
including the conversion price and the circumstances, if any, under
which the conversion right will expire;
. if applicable, any securities exchange upon which the Preferred
Securities will be listed; and
. any other relevant rights, preferences, privileges, limitations or
restrictions of Preferred Securities issued by the BANK ONE Capital
Trust not inconsistent with the Declaration of the BANK ONE Capital
Trust or with applicable law.
All Preferred Securities will be guaranteed by the Company to the extent
described below under "Description of the Preferred Securities Guarantees".
Certain United States federal income tax considerations applicable to any
offering of Preferred Securities will be described in the applicable
prospectus supplement.
In connection with the issuance of Preferred Securities, each BANK ONE
Capital Trust will issue one series of Common Securities. The Declaration of
each BANK ONE Capital Trust authorizes the Regular Trustees of the trust to
issue on behalf of such BANK ONE Capital Trust one series of Common
Securities. The Common Securities will have the terms relating to
distributions, redemption, voting, liquidation rights or such restrictions as
are described in the Declaration. Except for voting rights, the terms of the
Common Securities issued by a BANK ONE Capital Trust will be substantially
identical to the terms of the Preferred Securities issued by the trust. The
Common Securities will rank on a parity, and payments will be made on the
Common Securities pro rata, with the Preferred Securities except that, upon an
Event of Default under the Declaration, the rights of the holders of the
Common Securities to payment for distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. Except in certain limited circumstances, the Common
Securities will also carry the right to vote to appoint, remove or replace any
of the BANK ONE Capital Trustees of a BANK ONE Capital Trust. All of the
Common Securities of each BANK ONE Capital Trust will be directly or
indirectly owned by the Company.
Enforcement of Certain Rights by Holders of Trust Preferred Securities
If an Event of Default under the Declaration of a BANK ONE Capital Trust
occurs and is continuing, then the holders of Preferred Securities of the BANK
ONE Capital Trust will rely on the enforcement by the Institutional Trustee of
its rights as a holder of the applicable series of Junior Subordinated Debt
Securities against the Company. In addition, the holders of a majority in
liquidation amount of the Preferred Securities of the BANK ONE Capital Trust
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or to direct
the exercise of any trust or power conferred upon the Institutional Trustee
under the applicable Declaration, including the right to direct the
Institutional Trustee to exercise the remedies available to it as a holder of
the Junior Subordinated Debt Securities.
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If the Institutional Trustee fails to enforce its rights under the
applicable series of Junior Subordinated Debt Securities, a holder of Preferred
Securities of such BANK ONE Capital Trust may institute a legal proceeding
directly against the Company to enforce the Institutional Trustee's rights
without first instituting any legal proceeding against the Institutional
Trustee or any other person or entity. However, if an Event of Default under
the applicable Declaration has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on the
applicable series of Junior Subordinated Debt Securities on the date such
interest or principal is otherwise payable (or in the case of redemption, on
the redemption date), then a holder of Preferred Securities of the BANK ONE
Capital Trust may directly institute a proceeding for enforcement of payment to
the holder of the principal of or interest on the applicable series of Junior
Subordinated Debt Securities having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder (a "Direct
Action") on or after the respective due date. In connection with a Direct
Action, the Company will be subrogated to the rights of such holder of
Preferred Securities under the applicable Declaration to the extent of any
payment made by the Company to a holder of Preferred Securities in a Direct
Action. This means that the Company will be entitled to payment of amounts that
a holder of Preferred Securities receives in respect of an unpaid distribution
that resulted in the bringing of the Direct Action to the extent that such
holder receives or has already received full payment relating to such unpaid
distribution from the applicable BANK ONE Capital Trust.
Information Concerning the Institutional Trustee
For information concerning the relationship between Chase, the Institutional
Trustee, and the Company, see "Description of the Junior Subordinated Debt
Securities--The Debt Trustee" and "Description of the Debt Securities--
Regarding Chase" in this prospectus.
Information Concerning the Delaware Trustee
For information concerning the relationship between Chase Delaware, the
Delaware Trustee, and the Company, see "Description of the Debt Securities--
Regarding Chase" in this prospectus.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
The guarantees with respect to the Preferred Securities ( the "Preferred
Securities Guarantees") will be executed and delivered by BANK ONE for the
benefit of the holders from time to time of Preferred Securities. Each
Preferred Securities Guarantee will be qualified as an indenture under the
Trust Indenture Act. Chase will act as indenture trustee under each Preferred
Securities Guarantee for purposes of the Trust Indenture Act (the "Preferred
Guarantee Trustee"). The terms of each Preferred Securities Guarantee will be
those in such Preferred Securities Guarantee and those made part of such
Preferred Securities Guarantee by the Trust Indenture Act. The summary of the
terms and provisions of the Preferred Securities Guarantees in this section
does not claim to be complete and is subject in all respects to the provisions
of, and is qualified in its entirety by reference to, the form of Preferred
Securities Guarantee, which is filed as an exhibit to the registration
statement of which this prospectus forms a part, and the Trust Indenture Act.
Each Preferred Securities Guarantee will be held by the Preferred Guarantee
Trustee for the benefit of the holders of the Preferred Securities of the
applicable BANK ONE Capital Trust.
General
Under each Preferred Securities Guarantee, the Company will irrevocably and
unconditionally agree, to the extent set forth in the guarantee, to pay in
full, to the holders of the Preferred Securities issued by a BANK ONE Capital
Trust, the Guarantee Payments (as defined below), except to the extent paid by
the BANK ONE Capital Trust, as and when due, regardless of any defense, right
of set-off or counterclaim which the BANK ONE Capital Trust may have or claim
to have.
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The following payments with respect to Preferred Securities issued by a BANK
ONE Capital Trust, to the extent not paid by the BANK ONE Capital Trust (the
"Guarantee Payments"), will be subject to the applicable Preferred Securities
Guarantee (without duplication):
(1) any accrued and unpaid distributions which are required to be paid
on the Preferred Securities, to the extent the BANK ONE Capital Trust has
funds available for such payments;
(2) the redemption price, including all accrued and unpaid
distributions to the date of payment (the "Redemption Price"), to the
extent the BANK ONE Capital Trust has funds available for such payments
with respect to any Preferred Securities called for redemption by the BANK
ONE Capital Trust; and
(3) upon a voluntary or involuntary dissolution, winding-up or
termination of the BANK ONE Capital Trust, other than in connection with
the distribution of Corresponding Junior Subordinated Debt Securities to
the holders of Preferred Securities or the redemption of all of the
Preferred Securities, the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid distributions on the Preferred Securities
to the date of payment to the extent the BANK ONE Capital Trust has funds
available for the payment and (b) the amount of assets of the BANK ONE
Capital Trust remaining available for distribution to holders of the
Preferred Securities in liquidation of the BANK ONE Capital Trust.
The redemption price and liquidation amount will be fixed at the time the
Preferred Securities are issued.
The Company's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Company to the holders of
Preferred Securities or by causing the applicable BANK ONE Capital Trust to pay
such amounts to the holders.
Each Preferred Securities Guarantee will not apply to any payment of
distributions except to the extent the BANK ONE Capital Trust has funds
available for the payments. If the Company does not make interest payments on
the Junior Subordinated Debt Securities purchased by a BANK ONE Capital Trust,
the BANK ONE Capital Trust will not pay distributions on the Preferred
Securities issued by the BANK ONE Capital Trust and will not have funds
available for such a payment. See "Description of Junior Subordinated Debt
Securities--Certain Covenants of the Company". The Preferred Securities
Guarantee, when taken together with the Company's obligations under the Junior
Subordinated Debt Securities, the Junior Indenture and the Declaration,
including its obligations to pay costs, expenses, debts and liabilities of the
BANK ONE Capital Trust, other than with respect to the Trust Securities, will
provide a full and unconditional guarantee on a subordinated basis by the
Company of payments due on the Preferred Securities.
The Company has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the BANK ONE Capital Trusts with respect to the
Common Securities (the "Common Securities Guarantees") to the same extent as
the Preferred Securities Guarantees, except that upon an Event of Default under
the Junior Indenture, holders of Preferred Securities will have priority over
holders of Common Securities with respect to distributions and payments on
liquidation, redemption or otherwise.
Modification of the Preferred Securities Guarantees; Assignment
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required),
each Preferred Securities Guarantee may be amended only with the prior approval
of the holders of not less than a majority in liquidation amount of the
outstanding Preferred Securities issued by the applicable BANK ONE Capital
Trust. The manner of obtaining the approval of holders of the Preferred
Securities will be described in the applicable prospectus supplement. All
guarantees and agreements contained in a Preferred Securities Guarantee will
bind the successors, assigns, receivers, trustees and representatives of the
Company and will benefit the holders of the outstanding Preferred Securities of
the applicable BANK ONE Capital Trust.
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Termination
Each Preferred Securities Guarantee will terminate as to the Preferred
Securities issued by the applicable BANK ONE Capital Trust
.upon full payment of the Redemption Price of all Preferred Securities
of the BANK ONE Capital Trust;
.upon distribution of the Corresponding Junior Subordinated Debt
Securities held by the BANK ONE Capital Trust to the holders of the
Preferred Securities of that BANK ONE Capital Trust; or
.upon full payment of the amounts payable under the Declaration of the
BANK ONE Capital Trust upon liquidation of the BANK ONE Capital
Trust.
Each Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of Preferred
Securities issued by the applicable BANK ONE Capital Trust must restore payment
of any sums paid under the Preferred Securities or the Preferred Securities
Guarantee.
Events of Default
An event of default under a Preferred Securities Guarantee will occur upon
the failure of the Company to perform any of its payment or other obligations
under the guarantee.
The holders of a majority in liquidation amount of the Preferred Securities
relating to a Preferred Securities Guarantee have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee in respect of the Preferred Securities Guarantee or
to direct the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under such Preferred Securities. If the Preferred Guarantee
Trustee fails to enforce the Preferred Securities Guarantee, any holder of
Preferred Securities relating to the Preferred Securities Guarantee may
institute a legal proceeding directly against the Company to enforce the
Preferred Guarantee Trustee's rights under the Preferred Securities Guarantee,
without first instituting a legal proceeding against the relevant BANK ONE
Capital Trust, the Preferred Guarantee Trustee or any other person or entity.
However, if the Company has failed to make a Guarantee Payment, a holder of
Preferred Securities may directly institute a proceeding against the Company
for enforcement of the Preferred Securities Guarantee for the payment. The
Company waives any right or remedy to require that any action be brought first
against the BANK ONE Capital Trust or any other person or entity before
proceeding directly against the Company.
Status of the Preferred Securities Guarantees
Unless otherwise provided in the applicable prospectus supplement, the
Preferred Securities Guarantees with respect to the Preferred Securities of any
BANK ONE Capital Trust will constitute unsecured obligations of the Company and
will rank (i) subordinate and junior in right of payment to certain other
liabilities of the Company, as described in the prospectus supplement and (ii)
on a parity with any guarantee now or hereafter entered into by BANK ONE in
respect of any other BANK ONE Capital Trust or any other similar financing
vehicle sponsored by BANK ONE.
The terms of the Preferred Securities provide that each holder of Preferred
Securities issued by the applicable BANK ONE Capital Trust by acceptance of the
Preferred Securities agrees to the subordination provisions and other terms of
the Preferred Securities Guarantee as described in the applicable prospectus
supplement.
The Preferred Securities Guarantees will constitute a guarantee of payment
and not of collection, meaning that the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
Preferred Securities Guarantee without instituting a legal proceeding against
any other person or entity.
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Information Concerning the Preferred Guarantee Trustee
Prior to the occurrence of a default with respect to a Preferred Securities
Guarantee, the Preferred Guarantee Trustee will undertake to perform only the
duties that are specifically described in the Preferred Securities Guarantee
and, after default, will exercise the same degree of care as a prudent
individual would exercise in the conduct of his or her own affairs. Subject to
such provisions, the Preferred Guarantee Trustee will be under no obligation to
exercise any of the powers given it by a Preferred Securities Guarantee at the
request of any holder of Preferred Securities, unless the Preferred Guarantee
Trustee is offered reasonable indemnity against the costs, expenses and
liabilities which it might incur in exercising the powers.
For information concerning the relationship between the Preferred Guarantee
Trustee and the Company, see "Description of Junior Subordinated Debt
Securities--The Debt Trustee" and "Description of the Debt Securities--
Regarding Chase" in this prospectus.
Governing Law
The Preferred Securities Guarantees will be governed by and construed in
accordance with the laws of the State of New York.
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EFFECT OF OBLIGATIONS UNDER THE JUNIOR SUBORDINATED DEBT SECURITIES
AND THE PREFERRED SECURITIES GUARANTEE
The sole purpose of each of the BANK ONE Capital Trusts is to issue the
Trust Securities evidencing undivided beneficial ownership interests in the
assets of the BANK ONE Capital Trust, and to invest the proceeds from the
issuance and sale in the Corresponding Junior Subordinated Debt Securities.
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debt Securities, the payments will be sufficient to cover
distributions and payments due on the Trust Securities because of the following
factors:
. the aggregate principal amount of Junior Subordinated Debt Securities
will be equal to the sum of the aggregate stated liquidation amount of the
Trust Securities;
. the interest rate and the interest and other payment dates on the
Junior Subordinated Debt Securities will match the distribution rate and
distribution and other payment dates for the Preferred Securities;
. BANK ONE will pay, and the applicable BANK ONE Capital Trust will not
be obligated to pay, directly or indirectly, all costs, expenses, debt, and
obligations of the applicable BANK ONE Capital Trust, other than with
respect to the Trust Securities; and
. the Declaration provides that the BANK ONE Capital Trustees will not
take or cause or permit the applicable BANK ONE Capital Trust to, among
other things, engage in any activity that is not consistent with the
purposes of the applicable BANK ONE Capital Trust.
Payments of distributions, to the extent funds are available, and other
payments due on the Preferred Securities, to the extent funds are available,
are guaranteed by BANK ONE as and to the extent described under "Description of
the Preferred Securities Guarantees". If BANK ONE does not make interest
payments on the Corresponding Junior Subordinated Debt Securities purchased by
the applicable BANK ONE Capital Trust, it is expected that the applicable BANK
ONE Capital Trust will not have sufficient funds to pay distributions on the
Preferred Securities. The Preferred Securities Guarantee does not apply to any
payment of distributions unless and until the applicable BANK ONE Capital Trust
has sufficient funds for the payment of such distributions.
The Preferred Securities Guarantee covers the payment of distributions and
other payments on the Preferred Securities only if and to the extent that BANK
ONE has made a payment of interest or principal on the Junior Subordinated Debt
Securities held by the applicable BANK ONE Capital Trust as its sole asset. The
Preferred Securities Guarantee, when taken together with BANK ONE's obligations
under the Junior Subordinated Debt Securities and the Junior Indenture and its
obligations under the Declaration, including its obligations to pay costs,
expenses, debts and liabilities of the applicable BANK ONE Capital Trust (other
than with respect to the Trust Securities), provide a full and unconditional
guarantee on a subordinated basis of amounts due on the Preferred Securities.
If BANK ONE fails to make interest or other payments on the Junior
Subordinated Debt Securities when due, taking account of any extension period,
the Declaration provides a mechanism whereby the holders of the Preferred
Securities may direct the Institutional Trustee to enforce its rights under the
Junior Subordinated Debt Securities. If the Institutional Trustee fails to
enforce its rights under the Junior Subordinated Debt Securities, a holder of
Preferred Securities may institute a legal proceeding against BANK ONE to
enforce the Institutional Trustee's rights under the Junior Subordinated Debt
Securities without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. However, if a Event of
Default under the Declaration has occurred and is continuing and such event is
due to the failure of BANK ONE to pay interest or principal on the Junior
Subordinated Debt Securities on the date such interest or principal is
otherwise payable (or in the case of redemption on the redemption date), then a
holder of Preferred Securities may institute a Direct Action for payment on or
after the respective due date.
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In connection with a Direct Action, BANK ONE will be subrogated to the
rights of such holder of Preferred Securities under the Declaration to the
extent of any payment made by BANK ONE to such holder of Preferred Securities
in a Direct Action. BANK ONE, under the Preferred Securities Guarantee,
acknowledges that the Guarantee Trustee will enforce the Preferred Securities
Guarantee on behalf of the holders of the Preferred Securities. If BANK ONE
fails to make payments under the Preferred Securities Guarantee, the Preferred
Securities Guarantee provides a mechanism whereby the holders of the Preferred
Securities may direct the Guarantee Trustee to enforce its rights under the
guarantee. Any holder of Preferred Securities may institute a legal proceeding
directly against BANK ONE to enforce the Preferred Guarantee Trustee's rights
under the Preferred Securities Guarantee without first instituting a legal
proceeding against the applicable BANK ONE Capital Trust, the Guarantee
Trustee, or any other person or entity.
BANK ONE and each of the BANK ONE Capital Trusts believe that the mechanisms
and obligations described above, taken together, provide a full and
unconditional guarantee by BANK ONE on a subordinated basis of payments due on
the Preferred Securities. See "Description of the Preferred Securities
Guarantees--General".
GLOBAL SECURITIES
Debt Securities and Junior Subordinated Debt Securities issued by the
Company (for purposes of this section, collectively, "debt securities") of a
series and Preferred Securities issued by a BANK ONE Capital Trust may be
issued in whole or in part in the form of one or more Global Securities. Each
Global Security will be deposited with, or on behalf of, a Depositary
identified in the applicable prospectus supplement. Global Securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Until it is exchanged in whole or in part for the individual securities
which it represents, a Global Security may not be transferred except as a whole
(i) by the Depositary for the Global Security to a nominee of the Depositary or
(ii) by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or (iii) by the Depositary or any nominee to a successor Depositary
or any nominee of the successor.
The specific terms of the depositary arrangement for a series of Debt
Securities or Junior Subordinated Debt Securities issued by the Company or the
Preferred Securities issued by a BANK ONE Capital Trust and certain limitations
and restrictions relating to a series of Bearer Securities in the form of one
or more Global Securities will be described in the applicable prospectus
supplement. The Company anticipates that the following provisions will
generally apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for the Global
Security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts or liquidation amounts, as
applicable, of the individual securities represented by the Global Security to
the accounts of persons that have accounts with the Depositary. The
underwriters or agents for the securities will designate such accounts.
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the applicable Depositary ("participants") or
persons that may hold interests through participants. Ownership of beneficial
interests in the Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the applicable
Depositary or its nominee (with respect to interests of participants) and the
records of participants (with respect to interests of persons other than
participants).
The laws of some states require that certain purchasers of securities take
physical delivery of securities in definitive form. Such limits and such laws
may impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of the Global Security, the Depositary or the nominee, as the
case may be, will be considered the sole owner or holder of the securities
represented by the Global Security for all purposes under the applicable
indenture or Declaration
36
<PAGE>
governing the securities. Except as provided below, owners of beneficial
interests in a Global Security (i) will not be entitled to have any of the
individual securities represented by the Global Security registered in their
names, (ii) will not receive or be entitled to receive physical delivery of any
such securities in definitive form and (iii) will not be considered the owners
or holders of the securities under the applicable indenture or Declaration
governing the securities.
Payments of principal of, premium, if any, and interest, if any, on
individual debt securities or distributions on Preferred Securities represented
by a Global Security registered in the name of a Depositary or its nominee will
be made to the Depositary or its nominee, as applicable, as the registered
owner of the Global Security representing the securities. None of the Company,
any BANK ONE Capital Trust, the relevant trustee for such debt securities or
Preferred Securities, any paying agent or any security registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global
Security for the debt securities or Preferred Securities, as applicable, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Subject to certain restrictions relating to Bearer Securities, the Company
expects that the Depositary for a series of debt securities or Preferred
Securities or its nominee, upon receipt of any payment of principal, premium or
interest or distributions in respect of a permanent Global Security
representing any of the securities will credit the accounts of participants
immediately with payments in amounts proportionate to their respective
beneficial interests in the principal amount or liquidation amount, as
applicable, of the Global Security for the securities as shown on the records
of such Depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers in bearer form or registered in "street name". These payments will
be the responsibility of such participants. With respect to owners of
beneficial interests in a temporary Global Security representing Bearer
Securities, receipt by the beneficial owners of payments of principal, premium
or interest or distributions on the securities will be subject to additional
restrictions.
A Global Security is exchangeable for definitive securities registered in
the name of, and a transfer of a Global Security may be registered to, any
person other than the Depositary or its nominee, only if:
. the Depositary for a series of debt securities or Preferred
Securities, as applicable, is at any time unwilling, unable or ineligible
to continue as depositary and a successor depositary is not appointed by
the Company within 90 days, or
. the Company at any time and in its sole discretion, subject to any
limitations described in the prospectus supplement relating to such debt
securities or Preferred Securities, as applicable, determines not to have
any debt securities of a series or Preferred Securities, as applicable,
represented by one or more Global Securities or the Company, in its
discretion, specifies with respect to the debt securities of a series, or
Preferred Securities, as applicable, that an owner of a beneficial interest
in a Global Security representing, debt securities of the series or
Preferred Securities, as applicable, may, on terms acceptable to the
Company, the applicable trustee and the Depositary for such Global
Security, receive debt securities of the series or Preferred Securities, as
applicable, in definitive form in exchange for such beneficial interests,
subject to any limitations described in the applicable prospectus
supplement.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery in definitive form of debt securities of
the series or Preferred Securities, as applicable, represented by such Global
Security equal in principal amount or liquidation amount, as applicable, to
such beneficial interest and to have the debt securities or Preferred
Securities, as applicable, registered in its name (if the securities are
issuable as Registered Securities).
37
<PAGE>
Debt securities of a series or Preferred Securities, as applicable, issued
in definitive form will be issued
. as Registered Securities in denominations, unless otherwise specified
by the Company, of $1,000 and multiples of $1,000 if the debt
securities of the series or Preferred Securities, as applicable, are
issuable as Registered Securities,
. as Bearer Securities in denominations, unless otherwise specified by
the Company, of $5,000 if the debt securities of the series or
Preferred Securities, as applicable, are issuable as Bearer
Securities or
. as either Registered or Bearer Securities, if the debt securities of
the series or Preferred Securities, as applicable, are issuable in
either form.
Certain restrictions may apply on the issuance of a Bearer Security in
definitive form in exchange for an interest in a Global Security.
PLAN OF DISTRIBUTION
The securities offered under this prospectus may be sold in a public
offering to or through agents, underwriters or dealers designated from time to
time or directly to purchasers. The Company and each BANK ONE Capital Trust
may sell its securities as soon as practicable after effectiveness of the
registration statement of which this prospectus forms a part. The names of any
underwriters or dealers involved in the sale of the securities in respect of
which this prospectus is delivered, the amount or number of securities to be
purchased by any such underwriters and any applicable commissions or discounts
will be described in the applicable prospectus supplement.
Underwriters may offer and sell securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. In connection with the sale of the securities, underwriters
may be deemed to have received compensation from the Company and/or the
applicable BANK ONE Capital Trust in the form of underwriting discounts or
commissions and may also receive commissions. Underwriters may sell securities
to or through dealers, and such dealers may receive compensation in the form
of discounts, concessions or commissions from the underwriters.
Any underwriters may engage in stabilizing transactions and syndicate
covering transactions in accordance with Rule 104 under the Exchange Act.
Stabilizing transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum. Syndicate
covering transactions involve purchases of the securities in the open market
after the distribution has been completed in order to cover syndicate short
positions. Such stabilizing transactions and syndicate covering transactions
may cause the price of the securities to be higher than it would otherwise be
in the absence of such transactions.
Any underwriting compensation paid by the Company and/or the applicable
BANK ONE Capital Trust to underwriters in connection with the offering of
securities, and any discounts, concessions or commissions allowed by such
underwriters to participating dealers, will be described in an accompanying
prospectus supplement. Underwriters and dealers participating in the
distribution of securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale of
such securities may be deemed to be underwriting discounts and commissions,
under the Securities Act. Underwriters and dealers may be entitled under
agreements with the Company and a BANK ONE Capital Trust, to indemnification
against and contribution toward certain civil liabilities, including
liabilities under the Securities Act, and to reimbursement by the Company for
certain expenses.
In connection with the offering of the securities of the Company or any
BANK ONE Capital Trust, the Company or such BANK ONE Capital Trust may grant
to the underwriters an option to purchase additional securities to cover over-
allotments, if any, at the initial public offering price (with an additional
underwriting commission), as may be described in the accompanying prospectus
supplement. If the Company or such BANK ONE Capital Trust grants any over-
allotment option, the terms of such over-allotment option will be described in
the prospectus supplement for such securities.
38
<PAGE>
Underwriters and dealers may engage in transactions with, or perform
services for, the Company and/or the applicable BANK ONE Capital Trust and/or
any of their affiliates in the ordinary course of business. Certain of the
underwriters and their associates may be customers of, including borrowers
from, engage in transactions with, and perform services for, the Company, the
Banks and other subsidiaries of the Company in the ordinary course of business.
Securities will be new issues of securities and will have no established
trading market. Any underwriters to whom such securities are sold for public
offering and sale may make a market in such securities, but such underwriters
will not be obligated to do so and may discontinue any market making at any
time without notice. Such securities may or may not be listed on a national
securities exchange or the Nasdaq National Market. No assurance can be given as
to the liquidity of or the existence of trading markets for any securities.
One or more direct or indirect subsidiaries of BANK ONE may from time to
time act as an agent or underwriter in connection with the sale of the
securities to the extent permitted by law. The participation of any such
subsidiary will comply with Rule 2720 of the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD"). The offer and sale of the
securities will comply with Rule 2810 of the Rules of Conduct of the NASD. In
addition, no NASD member participating in offers and sales of securities will
execute a transaction in the securities in a discretionary account without the
prior specific written approval of the member's customer.
This prospectus and the related prospectus supplement may be used by direct
or indirect subsidiaries of BANK ONE in connection with offers and sales
related to secondary market transactions. Such subsidiaries may act as
principal or agent in such transactions. Such sales may be made at prices
related to prevailing market prices at the time of sale.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, certain
matters of Delaware law relating to the validity of the Preferred Securities
will be passed upon on behalf of the BANK ONE Capital Trusts by Skadden, Arps,
Slate, Meagher & Flom LLP, special Delaware counsel to BANK ONE and the BANK
ONE Capital Trusts. Unless otherwise indicated in the applicable prospectus
supplement, the validity of the Senior Debt Securities, the Junior Subordinated
Debt Securities and the Preferred Securities Guarantee and certain matters
relating thereto will be passed upon for BANK ONE by Sherman I. Goldberg, Esq.,
Executive Vice President, General Counsel and Secretary of BANK ONE. Unless
otherwise indicated in the applicable prospectus supplement, certain United
States federal income taxation matters will be passed upon for BANK ONE and the
BANK ONE Capital Trusts by Skadden, Arps, Slate, Meagher & Flom LLP, special
tax counsel to BANK ONE and the BANK ONE Capital Trusts.
As of May 31, 1999, Sherman I. Goldberg was the record and beneficial owner
of 396,008 shares of common stock of BANK ONE and held options to purchase
245,817 shares of common stock of BANK ONE.
EXPERTS
The consolidated financial statements of BANK ONE included in the Annual
Report on Form 10-K for the year ended December 31, 1998, 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
experts in accounting and auditing in giving said report.
39
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
<TABLE>
<S> <C>
SEC Filing Fee...................................................... $278
Rating Agency Fees.................................................. *
Legal Fees and Expenses............................................. *
Trustees' Fees and Expenses......................................... *
Printing and Engraving Expenses..................................... *
Accounting Fees and Expenses........................................ *
Miscellaneous Expenses.............................................. *
----
Total............................................................. $
====
</TABLE>
--------
* To be filed by amendment.
ITEM 15. Indemnification of Officers and Directors
BANK ONE CORPORATION ("BANK ONE") 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.
BANK ONE's Restated Certificate of Incorporation (the "Certificate"),
provides for indemnification of directors and officers. BANK ONE's Certificate
provides that BANK ONE will indemnify each director, officer, employee or agent
of BANK ONE or any individual serving in such a capacity with another business
entity at BANK ONE's request (an "Indemnitee") to the full 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. BANK ONE's Certificate also authorizes BANK ONE to enter into
agreements with any person providing for indemnification greater or different
than that provided therein. BANK ONE's Certificate provides that expenses
incurred by a director, officer or employee in defending an action, suit or
proceeding shall be paid by BANK ONE 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 he is not
entitled to be indemnified by BANK ONE. BANK ONE's Certificate and Delaware Law
also provide that the indemnification provisions of BANK ONE'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 BANK ONE 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 BANK ONE
pursuant to the foregoing provisions, BANK ONE 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.
The Declaration of Trust of each BANK ONE Capital Trust limits the liability
to each trust and certain persons, and provides for the indemnification by the
trust or BANK ONE, of trustees, their officers, directors and employees and
certain other persons.
II-1
<PAGE>
ITEM 16. Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
1.1 Form of Debt Securities Underwriting Agreement (incorporated by
reference to Exhibit 1.1 to BANC ONE CORPORATION's Registration
Statement on Form S-3, File No. 33-60807).
1.2 Form of Debt Securities Distribution Agreement (incorporated by
reference to Exhibit 1.2 to BANC ONE CORPORATION's Registration
Statement on Form S-3 (File No. 333-22413).
1.3 Form of Preferred Securities Underwriting Agreement.*
3.1 Restated Certificate of Incorporation, of the
Registrant(incorporated by reference to Exhibit 3(A) to BANK ONE
CORPORATION's Form 10-K for the year ended December 31, 1998).
3.2 By-laws of BANK ONE CORPORATION.
4.1 Indenture relating to senior securities between the Registrant and
The Chase Manhattan Bank, as trustee (incorporated by reference to
Exhibit 4.1 to BANC ONE CORPORATION'S Registration Statement on Form
S-3 (File No. 333-22413)).
4.1 (b) First Supplemental Indenture relating to senior securities between
BANK ONE CORPORATION and The Chase Manhattan Bank, as trustee
(incorporated by reference to Exhibit 4.1(b) to BANK ONE
CORPORATION's Registration Statement on Form S-3 (File No. 333-
38387)).
4.2 Indenture relating to subordinated securities between BANK ONE
CORPORATION and The Chase Manhattan Bank, as trustee (incorporated
by reference to Exhibit 4.2 to BANC ONE CORPORATION'S Registration
Statement on Form S-3 (File No. 333-22413)).
4.2 (b) First Supplemental Indenture relating to subordinated securities
between BANK ONE CORPORATION and The Chase Manhattan Bank, as
trustee (incorporated by reference to Exhibit 4.2(b) to BANK ONE
CORPORATION's Registration Statement on Form S-3 (File No. 333-
38387)).
4.3 Form of Senior Note (incorporated by reference to Exhibit 4.3 to
BANK ONE CORPORATION's Registration Statement on Form S-3 (File No.
333-38387)).
4.4 Form of Subordinated Note (incorporated by reference to Exhibit 4.4
to BANK ONE CORPORATION's Registration Statement on Form S-3 (File
No. 333-38387)).
4.5 Form of Senior Medium-Term Note (Fixed Rate) (incorporated by
reference to Exhibit 4.5 to BANK ONE CORPORATION's Registration
Statement on Form S-3 (File No. 333-38387)).
4.6 Form of Senior Medium-Term Note (Floating Rate) (incorporated by
reference to Exhibit 4.6 to BANK ONE CORPORATION's Registration
Statement on Form S-3 (File No. 333-38387)).
4.7 Form of Subordinated Medium-Term Note (Fixed Rate)(incorporated by
reference to Exhibit 4.7 to BANK ONE CORPORATION's Registration
Statement on Form S-3 (File No. 333-38387)).
4.8 Form of Subordinated Medium-Term Note (Floating Rate) (incorporated
by reference to Exhibit 4.8 to BANK ONE CORPORATION's Registration
Statement on Form S-3 (File No. 333-38387)).
4.9 Certificate of Trust of BANK ONE Capital I.
4.10 Certificate of Trust of BANK ONE Capital II.
4.11 Certificate of Trust of BANK ONE Capital III.
4.12 Certificate of Trust of BANK ONE Capital IV.
4.13 Certificate of Trust of BANK ONE Capital V.
4.14 Declaration of Trust of BANK ONE Capital I.
4.15 Declaration of Trust of BANK ONE Capital II.
4.16 Declaration of Trust of BANK ONE Capital III.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
4.17 Declaration of Trust of BANK ONE CAPITAL IV.
4.18 Declaration of Trust of BANK ONE Capital V.
4.19 Form of Amended and Restated Declaration of Trust to be used in
connection with the issuance of the Preferred Securities.
4.20 Indenture between BANK ONE CORPORATION and The Chase Manhattan Bank,
as trustee, to be used in connection with the issuance of the Junior
Subordinated Debt Securities (incorporated by reference to Exhibit
4(d) to First Chicago NBD Corporation's Registration Statement on
Form S-3 (File No. 333-15649)).
4.21 Second Supplemental Indenture relating to the Junior Subordinated Debt
Securities between BANK ONE CORPORATION and The Chase Manhattan Bank,
as trustee.
4.22 Form of Supplemental Indenture to be used in connection with the
issuance of the Junior Subordinated Debt Securities.
4.23 Form of Preferred Security (included in Exhibit 4.19).
4.24 Form of Junior Subordinated Debt Security (included in Exhibit 4.22).
4.25 Form of Guarantee with respect to Preferred Securities.
5.1 Opinion of Sherman I. Goldberg, Secretary and General Counsel of BANK
ONE CORPORATION, as to the legality of the Debt Securities, the Junior
Subordinated Debt Securities and the Guarantees to be issued by BANK
ONE (including Consent of Counsel).
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to the legality
of the Preferred Securities to be issued by the Trusts (including the
Consent of such Counsel).*
8 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to certain
federal tax matters (including the Consent of such Counsel).*
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Sherman I. Goldberg, Secretary and General Counsel of the
Registrant (included in Exhibit 5.1).
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.2).*
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 8).*
24 Powers of Attorney.
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Senior Trustee under the Trust Indenture Act of 1939 with respect to
senior Debt Securities.
25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Senior Trustee under the Trust Indenture Act of 1939 with respect to
subordinated Debt Securities.
25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as Debt
Trustee under the Trust Indenture Act of 1939 with respect to Junior
Subordinated Debt Securities.
25.4 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Institutional Trustee under the Amended and Restated Declaration of
Trust of BANK ONE Capital Trust I.
25.5 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Institutional Trustee under the Amended and Restated Declaration of
Trust of BANK ONE Capital Trust II.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
25.6 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Institutional Trustee under the Amended and Restated Declaration of
Trust of BANK ONE Capital Trust III.
25.7 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Institutional Trustee under the Amended and Restated Declaration of
Trust of BANK ONE Capital Trust IV.
25.8 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Institutional Trustee under the Amended and Restated Declaration of
Trust of BANK ONE Capital Trust V.
25.9 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Preferred Guarantee Trustee under the Preferred Securities Guarantee
of BANK ONE CORPORATION for the benefit of the holders of Preferred
Securities of BANK ONE Capital Trust I.
25.10 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Preferred Guarantee Trustee under the Preferred Securities Guarantee
of BANK ONE CORPORATION for the benefit of the holders of Preferred
Securities of BANK ONE Capital Trust II.
25.11 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Preferred Guarantee Trustee under the Preferred Securities Guarantee
of BANK ONE CORPORATION for the benefit of the holders of Preferred
Securities of BANK ONE Capital Trust III.
25.12 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Preferred Guarantee Trustee under the Preferred Securities Guarantee
of BANK ONE CORPORATION for the benefit of the holders of Preferred
Securities of BANK ONE Capital Trust IV.
25.13 Form T-1 Statement of Eligibility of The Chase Manhattan Bank as
Preferred Guarantee Trustee under the Preferred Securities Guarantee
of BANK ONE CORPORATION for the benefit of the holders of Preferred
Securities of BANK ONE Capital Trust V.
</TABLE>
- --------
* To be filed by amendment or incorporated herein by reference.
ITEM 17. Undertakings
Each of the undersigned Registrants 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;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement. Provided, however, that (1)(i)
and (1)(ii) do not apply if the information required to be included in a
post-effective amendment by those items 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 to this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-4
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
under Item 15 above or otherwise, the 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 the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted
against the Registrant by such director, officer or controlling person in
connection with the securities being registered, the 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.
(6) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust Indenture
Act.
(7) That for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to 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.
(8) That for purposes of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each 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 the City of Chicago, State of
Illinois, on June 17, 1999.
BANK ONE CORPORATION
By: /s/ M. Eileen Kennedy
----------------------------------
M. Eileen Kennedy
Treasurer
BANK ONE CAPITAL TRUST I
BANK ONE CAPITAL TRUST II
BANK ONE CAPITAL TRUST III
BANK ONE CAPITAL TRUST IV
BANK ONE CAPITAL TRUST V
By: /s/ M. Eileen Kennedy
----------------------------------
M. Eileen Kennedy
Trustee
By: /s/ Robert A. Rosholt
----------------------------------
Robert A. Rosholt
Trustee
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities with BANK ONE CORPORATION and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John H. Bryan* Director June 17, 1999
______________________________________
John H. Bryan
/s/ Siegfried Buschmann* Director June 17, 1999
______________________________________
Siegfried Buschmann
/s/ James S. Crown* Director June 17, 1999
______________________________________
James S. Crown
/s/ Bennett Dorrance* Director June 17, 1999
______________________________________
Bennett Dorrance
/s/ Dr. Maureen A. Fay, O.P.* Director June 17, 1999
______________________________________
Dr. Maureen A. Fay, O.P.
/s/ John R. Hall* Director June 17, 1999
______________________________________
John R. Hall
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Verne G. Istock* Director June 17, 1999
______________________________________
Verne G. Istock
/s/ Laban P. Jackson, Jr.* Director June 17, 1999
______________________________________
Laban P. Jackson, Jr.
/s/ John W. Kessler* Director June 17, 1999
______________________________________
John W. Kessler
/s/ Richard J. Lehmann* Director June 17, 1999
______________________________________
Richard J. Lehmann
Director June , 1999
______________________________________
Richard A. Manoogian
/s/ William T. McCormick* Director June 17, 1999
______________________________________
William T. McCormick
/s/ John B. McCoy* Director and Principal June 17, 1999
______________________________________ Executive Officer
John B. McCoy
/s/ Thomas E. Reilly, Jr.* Director June 17, 1999
______________________________________
Thomas E. Reilly, Jr.
/s/ John W. Rogers, Jr.* Director June 17, 1999
______________________________________
John W. Rogers, Jr.
/s/ Thekla R. Shackelford* Director June 17, 1999
______________________________________
Thekla R. Shackelford
/s/ Alex Shumate* Director June 17, 1999
______________________________________
Alex Shumate
/s/ Frederick P. Stratton, Jr.* Director June 17, 1999
______________________________________
Frederick P. Stratton, Jr.
/s/ John C. Tolleson* Director June 17, 1999
______________________________________
John C. Tolleson
/s/ David J. Vitale* Director June 17, 1999
______________________________________
David J. Vitale
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert D. Walter* Director June 17, 1999
______________________________________
Robert D. Walter
/s/ Robert A. Rosholt* Principal Financial June 17, 1999
______________________________________ Officer
Robert A. Rosholt
/s/ William J. Roberts* Principal Accounting June 17, 1999
______________________________________ Officer
William J. Roberts
</TABLE>
- --------
* 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 BANK ONE CORPORATION pursuant to a power of attorney signed by
such directors and officers.
/s/ M. Eileen Kennedy
----------------------------------
M. Eileen Kennedy
Attorney-in-Fact
II-8
<PAGE>
Exhibit 3.2
BY-LAWS
OF
BANK ONE CORPORATION
(A Delaware Corporation)
As Amended and Restated Effective as of May 19, 1999
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
<PAGE>
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 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
-2-
<PAGE>
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.
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 business other than nominations of director candidates 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 received by the
Secretary at the principal executive offices of the
Corporation at least 90 days but no more than 120 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 received not
earlier than the close of business on the 120th day prior to
such annual meeting and not later than the close of business
on the later of the 90th 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 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 (b) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the proposal is
-3-
<PAGE>
made (i) the name and address of such stockholder, as they
appear on the Corporation's books, and of such 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) In the event that the date of the annual meeting is more than
30 days before or more than 60 days after the anniversary date
of the immediately preceding annual meeting of stockholders,
notice from a stockholder of a nomination of any director
candidate by the stockholder will be timely if it is received
by the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the
90/th/ day prior to such annual meeting and not later than the
close of business on the later of the 60/th/ day prior to such
annual meeting or the 10/th/ 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.
(4) 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 75 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
received by 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 at which
directors are to be elected pursuant to the Corporation's notice
of meeting (a) by the Board of Directors or 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 and who complies with the notice
procedures set forth in this By-Law. 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
-4-
<PAGE>
may be), for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice
required by this By-Law shall be received by the Secretary at the
principal executive offices of the Corporation not earlier than
the 120th day prior to such special meeting and not later than the
close of business on the later of the 90th 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. 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. 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.
C. General.
--------------
(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 a
nomination or 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 the Certificate of
Incorporation or 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 pub-
-5-
<PAGE>
licly 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.
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).
-6-
<PAGE>
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.
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 Incorpo-
-7-
<PAGE>
ration, 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 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.
-8-
<PAGE>
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 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
-9-
<PAGE>
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 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
-10-
<PAGE>
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
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.
-11-
<PAGE>
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
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
-12-
<PAGE>
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 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.
-13-
<PAGE>
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.
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.
-14-
<PAGE>
EXHIBIT 4.9
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital I, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810,
---- -- -
hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital I."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(C) This Certificate of Trust shall be effective as of the date of
filing.
Dated: June 17, 1999
/s/ M. EILEEN KENNEDY
------------------------------------
Name: M. Eileen Kennedy
Title: Trustee
/s/ ROBERT A. ROSHOLT
------------------------------------
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as
Trustee
By: /s/ DENIS KELLY
------------------------------------
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.10
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital II, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810,
---- --
hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital II."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(C) This Certificate of Trust shall be effective as of the date of
filing.
Dated: June 17, 1999
/s/ M. EILEEN KENNEDY
------------------------------------
Name: M. Eileen Kennedy
Title: Trustee
/s/ ROBERT A. ROSHOLT
------------------------------------
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as
Trustee
By: /s/ DENIS KELLY
---------------------------------
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.11
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital III, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S)
---- -- -
3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital III."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(C) This Certificate of Trust shall be effective as of the date of
filing.
Dated: June 17, 1999
/s/ M. EILEEN KENNEDY
------------------------------------
Name: M. Eileen Kennedy
Title: Trustee
/s/ ROBERT A. ROSHOLT
------------------------------------
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as
Trustee
By: /s/ DENIS KELLY
------------------------------------
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.12
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital IV, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810,
---- --
hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital IV."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(C) This Certificate of Trust shall be effective as of the date of
filing.
Dated: June 17, 1999
/s/ M. EILEEN KENNEDY
------------------------------------
Name: M. Eileen Kennedy
Title: Trustee
/s/ ROBERT A. ROSHOLT
-----------------------------------
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as
Trustee
By: /s/ DENIS KELLY
-------------------------------
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.13
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital V, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810,
---- -- -
hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital V."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(C) This Certificate of Trust shall be effective as of the date of
filing.
Dated: June 17, 1999
/s/ M. EILEEN KENNEDY
------------------------------------
Name: M. Eileen Kennedy
Title: Trustee
/s/ ROBERT A. ROSHOLT
------------------------------------
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as
Trustee
By: /s/ DENIS KELLY
------------------------------------
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.14
================================
DECLARATION OF TRUST
BANK ONE Capital I
Dated as of June 17, 1999
================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions................................................ 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name....................................................... 4
SECTION 2.2 Office..................................................... 4
SECTION 2.3 Purpose.................................................... 4
SECTION 2.4 Authority.................................................. 4
SECTION 2.5 Title to Property of the Trust............................. 4
SECTION 2.6 Powers of the Trustees..................................... 5
SECTION 2.7 Filing of Certificate of Trust............................. 6
SECTION 2.8 Duration of Trust.......................................... 6
SECTION 2.9 Responsibilities of the Sponsor............................ 6
Section 2.10 Declaration Binding on Securities Holders.................. 7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees................................................... 7
SECTION 3.2 Regular Trustees........................................... 7
SECTION 3.3 Delaware Trustee........................................... 8
SECTION 3.4 Property Trustee .......................................... 8
SECTION 3.5 Not Responsible for Recitals or Sufficiency of
Declaration................................................ 8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation................................................ 9
SECTION 4.2 Fiduciary Duty............................................. 9
SECTION 4.3 Indemnification............................................ 10
SECTION 4.4 Outside Businesses......................................... 14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments................................................. 14
SECTION 5.2 Termination of Trust....................................... 14
SECTION 5.3 Governing Law.............................................. 15
SECTION 5.4 Headings................................................... 15
SECTION 5.5 Successors and Assigns..................................... 15
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 5.6 Partial Enforceability..................................... 15
SECTION 5.7 Counterparts............................................... 15
</TABLE>
ii
<PAGE>
DECLARATION OF TRUST
OF
BANK ONE Capital I
June 17, 1999
DECLARATION OF TRUST ("Declaration") dated and effective as of June
-----------
17, 1999 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act (as defined herein) for the
-----
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
<PAGE>
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time, or
------------ -- ---
any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Security" means a security representing an undivided
---------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of
----------------
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the trustee under the Indenture until a
-----------------
successor is appointed thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
2
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
---------
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Parent" means BANK ONE CORPORATION, a Delaware corporation or any
------
successor entity in a merger.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
------------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
---------------
and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
-------
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
----
The Trust created by this Declaration is named "BANK ONE Capital I."
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
------
The address of the principal office of the Trust is c/o BANK ONE
CORPORATION, One First National Plaza, Chicago, Illinois 60670. At any time,
the Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 2.4 Authority.
---------
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
4
<PAGE>
SECTION 2.6 Powers of the Trustees.
----------------------
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange or any other national stock exchange or
the Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities;
(vi) to execute and deliver letters, documents, or instruments
with the Depository Trust Company relating to the Preferred
Securities;
5
<PAGE>
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Preferred Securities;
6
<PAGE>
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Preferred Securities.
Section 2.1 Declaration Binding on Securities Holders.
-----------------------------------------
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
--------
The number of Trustees initially shall be three (3), and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided further that
-------- -------
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
- ----------------- -------- -------
who is an employee or officer of, or is affiliated with the Parent (a "Regular
-------
Trustee").
- --------
SECTION 3.2 Regular Trustees.
----------------
The initial Regular Trustees shall be:
M. Eileen Kennedy
Robert A. Rosholt
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and
7
<PAGE>
authority to cause the Trust to execute pursuant to Section 2.6; provided, that,
-------- ----
the registration statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
----------------
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
----------------
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
-------------
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
- -------
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
----------------------------------------------------------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
8
<PAGE>
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reason ably believes are within such other Person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
9
<PAGE>
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided by
the Indemnified Person shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
----------
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
----------
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3 Indemnification.
---------------
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable
10
<PAGE>
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a
11
<PAGE>
quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
holder of the Common Securities of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer as authorized in
this Section 4.3(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
holder of the Common Securities of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the holder of the Common
Securities at the time such determination is made, such Company Indemnified
Person acted in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Regular Trustees,
independent legal counsel or the holder of the Common Securities reasonably
determine that such person deliberately breached his duty to the Trust or
its Common or Preferred Security holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Preferred Security holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
4.3(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such capacity at
any time while this Section
12
<PAGE>
4.3(a) is in effect. Any repeal or modification of this Section 4.3(a)
shall not affect any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not
the Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the Trust"
---------
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed
in a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 4.3(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 4.3(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be
a Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Delaware Trustee (each of the Persons in clauses (i)
through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to
----------------------------
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 4.3(b)
shall survive the termination of this Declaration.
13
<PAGE>
SECTION 4.4 Outside Businesses.
------------------
Any Covered Person, the Sponsor and the Delaware Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for or may act on any committee or body of holders of, securities or
other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
----------
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
--------------------
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
14
<PAGE>
(iv) before the issue of any Securities, with the consent of all
of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
15
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ M. EILEEN KENNEDY
___________________________________
Name: M. Eileen Kennedy
Title: Regular Trustee
/s/ ROBERT A. ROSHOLT
___________________________________
Name: Robert A. Rosholt
Title: Regular Trustee
Chase Manhattan Bank Delaware, as
Delaware Trustee
/s/ DENIS KELLY
By:________________________________
Name: Denis Kelly
Title: Assistant Vice President
BANK ONE CORPORATION, as Sponsor
/s/ M. EILEEN KENNEDY
By:________________________________
Name: M. Eileen Kennedy
Title: Treasurer
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital I, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810,
---- --
hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital I."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated:
______________________________________
Name: M. Eileen Kennedy
Title: Trustee
______________________________________
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as Trustee
By:___________________________________
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.15
================================
DECLARATION OF TRUST
BANK ONE Capital II
Dated as of June 17, 1999
================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions................................................. 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name........................................................ 4
SECTION 2.2 Office...................................................... 4
SECTION 2.3 Purpose..................................................... 4
SECTION 2.4 Authority................................................... 4
SECTION 2.5 Title to Property of the Trust.............................. 4
SECTION 2.6 Powers of the Trustees...................................... 5
SECTION 2.7 Filing of Certificate of Trust.............................. 6
SECTION 2.8 Duration of Trust........................................... 6
SECTION 2.9 Responsibilities of the Sponsor............................. 6
Section 2.10 Declaration Binding on Securities Holders................... 7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.................................................... 7
SECTION 3.2 Regular Trustees............................................ 7
SECTION 3.3 Delaware Trustee............................................ 8
SECTION 3.4 Property Trustee............................................ 8
SECTION 3.5 Not Responsible for Recitals or Sufficiency of
Declaration................................................. 8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation................................................. 9
SECTION 4.2 Fiduciary Duty.............................................. 9
SECTION 4.3 Indemnification............................................. 10
SECTION 4.4 Outside Businesses.......................................... 14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.................................................. 14
SECTION 5.2 Termination of Trust........................................ 14
SECTION 5.3 Governing Law............................................... 15
SECTION 5.4 Headings.................................................... 15
SECTION 5.5 Successors and Assigns...................................... 15
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 5.6 Partial Enforceability...................................... 15
SECTION 5.7 Counterparts................................................ 15
</TABLE>
ii
<PAGE>
DECLARATION OF TRUST
OF
BANK ONE Capital II
June 17, 1999
DECLARATION OF TRUST ("Declaration") dated and effective as of June
-----------
17, 1999 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act (as defined herein) for the
-----
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
<PAGE>
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time, or
------------ -- ---
any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Security" means a security representing an undivided
---------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of
----------------
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the trustee under the Indenture until a
-----------------
successor is appointed thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
2
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
---------
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Parent" means BANK ONE CORPORATION, a Delaware corporation or any
------
successor entity in a merger.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
------------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
---------------
and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
-------
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
----
The Trust created by this Declaration is named "BANK ONE Capital II."
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
------
The address of the principal office of the Trust is c/o BANK ONE
CORPORATION, One First National Plaza, Chicago, Illinois 60670. At any time,
the Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 2.4 Authority.
---------
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
4
<PAGE>
SECTION 2.6 Powers of the Trustees.
----------------------
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange or any other national stock exchange or
the Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities;
(vi) to execute and deliver letters, documents, or instruments
with the Depository Trust Company relating to the Preferred
Securities;
5
<PAGE>
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Preferred Securities;
6
<PAGE>
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Preferred Securities.
Section 2.1 Declaration Binding on Securities Holders.
-----------------------------------------
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
--------
The number of Trustees initially shall be three (3), and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided further that
-------- -------
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
- ----------------- -------- -------
who is an employee or officer of, or is affiliated with the Parent (a "Regular
-------
Trustee").
- --------
SECTION 3.2 Regular Trustees.
----------------
The initial Regular Trustees shall be:
M. Eileen Kennedy
Robert A. Rosholt
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and
7
<PAGE>
authority to cause the Trust to execute pursuant to Section 2.6; provided, that,
-------- ----
the registration statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
----------------
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
----------------
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
-------------
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
- -------
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
----------------------------------------------------------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
8
<PAGE>
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
9
<PAGE>
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided by
the Indemnified Person shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
----------
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
----------
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3 Indemnification.
---------------
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable
10
<PAGE>
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a
11
<PAGE>
quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
holder of the Common Securities of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer as authorized in
this Section 4.3(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
holder of the Common Securities of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the holder of the Common
Securities at the time such determination is made, such Company Indemnified
Person acted in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Regular Trustees,
independent legal counsel or the holder of the Common Securities reasonably
determine that such person deliberately breached his duty to the Trust or
its Common or Preferred Security holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Preferred Security holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
4.3(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such capacity at
any time while this Section
12
<PAGE>
4.3(a) is in effect. Any repeal or modification of this Section 4.3(a)
shall not affect any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the
---
Trust" shall include, in addition to the resulting or surviving entity, any
-----
constituent entity (including any constituent of a constituent) absorbed
in a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 4.3(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 4.3(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Delaware Trustee (each of the Persons in clauses (i)
through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to
----------------------------
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 4.3(b)
shall survive the termination of this Declaration.
13
<PAGE>
SECTION 4.4 Outside Businesses.
------------------
Any Covered Person, the Sponsor and the Delaware Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for or may act on any committee or body of holders of, securities or
other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
----------
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
--------------------
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
14
<PAGE>
(iv) before the issue of any Securities, with the consent of all
of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
15
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ M. EILEEN KENNEDY
___________________________________
Name: M. Eileen Kennedy
Title: Regular Trustee
/s/ ROBERT A. ROSHOLT
___________________________________
Name: Robert A. Rosholt
Title: Regular Trustee
Chase Manhattan Bank Delaware, as
Delaware Trustee
/s/ DENIS KELLY
By:_______________________________
Name: Denis Kelly
Title: Assistant Vice President
BANK ONE CORPORATION, as Sponsor
/s/ M. EILEEN KENNEDY
By:________________________________
Name: M. Eileen Kennedy
Title: Treasurer
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital II, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810,
---- --
hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital II."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated:
_____________________________________
Name: M. Eileen Kennedy
Title: Trustee
_____________________________________
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as Trustee
By:__________________________________
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.16
================================
DECLARATION OF TRUST
BANK ONE Capital III
Dated as of June 17, 1999
================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions............................................................ 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name................................................................... 4
SECTION 2.2 Office................................................................. 4
SECTION 2.3 Purpose................................................................ 4
SECTION 2.4 Authority.............................................................. 4
SECTION 2.5 Title to Property of the Trust......................................... 4
SECTION 2.6 Powers of the Trustees................................................. 5
SECTION 2.7 Filing of Certificate of Trust......................................... 6
SECTION 2.8 Duration of Trust...................................................... 6
SECTION 2.9 Responsibilities of the Sponsor........................................ 6
Section 2.10 Declaration Binding on Securities Holders.............................. 7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees............................................................... 7
SECTION 3.2 Regular Trustees....................................................... 7
SECTION 3.3 Delaware Trustee....................................................... 8
SECTION 3.4 Property Trustee....................................................... 8
SECTION 3.5 Not Responsible for Recitals or Sufficiency of
Declaration............................................................ 8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation............................................................ 9
SECTION 4.2 Fiduciary Duty......................................................... 9
SECTION 4.3 Indemnification........................................................ 10
SECTION 4.4 Outside Businesses..................................................... 14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments............................................................. 14
SECTION 5.2 Termination of Trust................................................... 14
SECTION 5.3 Governing Law.......................................................... 15
SECTION 5.4 Headings............................................................... 15
SECTION 5.5 Successors and Assigns................................................. 15
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 5.6 Partial Enforceability................................................. 15
SECTION 5.7 Counterparts........................................................... 15
</TABLE>
ii
<PAGE>
DECLARATION OF TRUST
OF
BANK ONE Capital III
June 17, 1999
DECLARATION OF TRUST ("Declaration") dated and effective as of June
-----------
17, 1999 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act (as defined herein) for the
-----
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
<PAGE>
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time, or
------------ -- ---
any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Security" means a security representing an undivided
---------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of
----------------
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the trustee under the Indenture until a
-----------------
successor is appointed thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
2
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
---------
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Parent" means BANK ONE CORPORATION, a Delaware corporation or any
------
successor entity in a merger.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
------------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
---------------
and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
-------
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
----
The Trust created by this Declaration is named "BANK ONE Capital III."
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
------
The address of the principal office of the Trust is c/o BANK ONE
CORPORATION, One First National Plaza, Chicago, Illinois 60670. At any time,
the Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 2.4 Authority.
---------
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
4
<PAGE>
SECTION 2.6 Powers of the Trustees.
----------------------
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange or any other national stock exchange or
the Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities;
(vi) to execute and deliver letters, documents, or instruments
with the Depository Trust Company relating to the Preferred
Securities;
5
<PAGE>
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Preferred Securities;
6
<PAGE>
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Sec tion 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Preferred Securities.
Section 2.1 Declaration Binding on Securities Holders.
-----------------------------------------
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
--------
The number of Trustees initially shall be three (3), and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided further that
-------- -------
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
---------------- -------- -------
who is an employee or officer of, or is affiliated with the Parent (a "Regular
-------
Trustee").
- -------
SECTION 3.2 Regular Trustees.
----------------
The initial Regular Trustees shall be:
M. Eileen Kennedy
Robert A. Rosholt
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and
7
<PAGE>
authority to cause the Trust to execute pursuant to Section 2.6; provided, that,
-------- ----
the registration statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
----------------
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
----------------
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
-------------
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
- -------
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
----------------------------------------------------------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
8
<PAGE>
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
9
<PAGE>
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided by
the Indemnified Person shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
----------
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
----------
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3 Indemnification.
---------------
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable
10
<PAGE>
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a
11
<PAGE>
quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
holder of the Common Securities of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer as authorized in
this Section 4.3(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
holder of the Common Securities of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the holder of the Common
Securities at the time such determination is made, such Company Indemnified
Person acted in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Regular Trustees,
independent legal counsel or the holder of the Common Securities reasonably
determine that such person deliberately breached his duty to the Trust or
its Common or Preferred Security holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Preferred Security holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
4.3(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such capacity at
any time while this Section
12
<PAGE>
4.3(a) is in effect. Any repeal or modification of this Section 4.3(a)
shall not affect any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not
the Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the
---
Trust" shall include, in addition to the resulting or surviving entity, any
-----
constituent entity (including any constituent of a constituent) absorbed
in a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 4.3(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 4.3(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Delaware Trustee (each of the Persons in clauses (i)
through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to
----------------------------
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 4.3(b) shall
survive the termination of this Declaration.
13
<PAGE>
SECTION 4.4 Outside Businesses.
------------------
Any Covered Person, the Sponsor and the Delaware Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for or may act on any committee or body of holders of, securities or
other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
----------
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
--------------------
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
14
<PAGE>
(iv) before the issue of any Securities, with the consent of all
of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
15
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ M. EILEEN KENNEDY
-----------------------------------------
Name: M. Eileen Kennedy
Title: Regular Trustee
/s/ ROBERT A. ROSHOLT
------------------------------------------
Name: Robert A. Rosholt
Title: Regular Trustee
Chase Manhattan Bank Delaware, as Delaware
Trustee
By: /s/ DENIS KELLY
---------------------------------------
Name: Denis Kelly
Title: Assistant Vice President
BANK ONE CORPORATION, as Sponsor
By: /s/ M. EILEEN KENNEDY
---------------------------------------
Name: M. Eileen Kennedy
Title: Treasurer
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital III, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S)
---- --
3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital III."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as
follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated:
________________________________________
Name: M. Eileen Kennedy
Title: Trustee
________________________________________
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as
Trustee
By:_____________________________________
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.17
================================
DECLARATION OF TRUST
BANK ONE Capital IV
Dated as of June 17, 1999
================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
<TABLE>
<S> <C>
SECTION 1.1 Definitions.............................................. 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name..................................................... 4
SECTION 2.2 Office................................................... 4
SECTION 2.3 Purpose.................................................. 4
SECTION 2.4 Authority................................................ 4
SECTION 2.5 Title to Property of the Trust........................... 4
SECTION 2.6 Powers of the Trustees................................... 5
SECTION 2.7 Filing of Certificate of Trust........................... 6
SECTION 2.8 Duration of Trust........................................ 6
SECTION 2.9 Responsibilities of the Sponsor.......................... 6
Section 2.10 Declaration Binding on Securities Holders................ 7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees................................................. 7
SECTION 3.2 Regular Trustees......................................... 7
SECTION 3.3 Delaware Trustee......................................... 8
SECTION 3.4 Property Trustee......................................... 8
SECTION 3.5 Not Responsible for Recitals or Sufficiency of
Declaration.............................................. 8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.............................................. 9
SECTION 4.2 Fiduciary Duty........................................... 9
SECTION 4.3 Indemnification.......................................... 10
SECTION 4.4 Outside Businesses....................................... 14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments............................................... 14
SECTION 5.2 Termination of Trust..................................... 14
SECTION 5.3 Governing Law............................................ 15
SECTION 5.4 Headings................................................. 15
SECTION 5.5 Successors and Assigns................................... 15
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 5.6 Partial Enforceability................................... 15
SECTION 5.7 Counterparts............................................. 15
</TABLE>
ii
<PAGE>
DECLARATION OF TRUST
OF
BANK ONE Capital IV
June 17, 1999
DECLARATION OF TRUST ("Declaration") dated and effective as of June
-----------
17, 1999 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act (as defined herein) for the
-----
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
<PAGE>
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time, or
------------ -- ---
any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Security" means a security representing an undivided
---------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of
----------------
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the trustee under the Indenture until a
-----------------
successor is appointed thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
2
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
---------
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Parent" means BANK ONE CORPORATION, a Delaware corporation or any
------
successor entity in a merger.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
------------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
---------------
and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
-------
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
----
The Trust created by this Declaration is named "BANK ONE Capital IV."
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
------
The address of the principal office of the Trust is c/o BANK ONE
CORPORATION, One First National Plaza, Chicago, Illinois 60670. At any time,
the Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 2.4 Authority.
---------
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
4
<PAGE>
SECTION 2.6 Powers of the Trustees.
----------------------
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange or any other national stock exchange or
the Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities;
(vi) to execute and deliver letters, documents, or instruments
with the Depository Trust Company relating to the Preferred
Securities;
5
<PAGE>
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Preferred Securities;
6
<PAGE>
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Preferred Securities.
Section 2.10 Declaration Binding on Securities Holders.
-----------------------------------------
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
--------
The number of Trustees initially shall be three (3), and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided further that
-------- -------
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
---------------- -------- -------
who is an employee or officer of, or is affiliated with the Parent (a "Regular
-------
Trustee").
- --------
SECTION 3.2 Regular Trustees.
----------------
The initial Regular Trustees shall be:
M. Eileen Kennedy
Robert A. Rosholt
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and
7
<PAGE>
authority to cause the Trust to execute pursuant to Section 2.6; provided, that,
-------- ----
the registration statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
----------------
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
----------------
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
-------------
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
- -------
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
----------------------------------------------------------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
8
<PAGE>
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
9
<PAGE>
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided by
the Indemnified Person shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
----------
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
----------
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3 Indemnification.
---------------
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable
10
<PAGE>
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a
11
<PAGE>
quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
holder of the Common Securities of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer as authorized in
this Section 4.3(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
holder of the Common Securities of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the holder of the Common
Securities at the time such determination is made, such Company Indemnified
Person acted in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Regular Trustees,
independent legal counsel or the holder of the Common Securities reasonably
determine that such person deliberately breached his duty to the Trust or
its Common or Preferred Security holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Preferred Security holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
4.3(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such capacity at
any time while this Section
12
<PAGE>
4.3(a) is in effect. Any repeal or modification of this Section 4.3(a)
shall not affect any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the Trust"
---------
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed
in a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 4.3(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 4.3(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be
a Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Delaware Trustee (each of the Persons in clauses (i)
through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to
----------------------------
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 4.3(b)
shall survive the termination of this Declaration.
13
<PAGE>
SECTION 4.4 Outside Businesses.
------------------
Any Covered Person, the Sponsor and the Delaware Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for or may act on any committee or body of holders of, securities or
other obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
----------
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
--------------------
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
14
<PAGE>
(iv) before the issue of any Securities, with the consent of all
of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
15
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ M. EILEEN KENNEDY
-------------------------------------
Name: M. Eileen Kennedy
Title: Regular Trustee
/s/ ROBERT A. ROSHOLT
-------------------------------------
Name: Robert A. Rosholt
Title: Regular Trustee
Chase Manhattan Bank Delaware,
as Delaware Trustee
By: /s/ DENIS KELLY
----------------------------------
Name: Denis Kelly
Title: Assistant Vice President
BANK ONE CORPORATION, as Sponsor
By: /s/ M. EILEEN KENNEDY
----------------------------------
Name: M. Eileen Kennedy
Title: Treasurer
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital IV, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810,
---- --
hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital IV."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated:
______________________________________
Name: M. Eileen Kennedy
Title: Trustee
______________________________________
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware,
as Trustee
By:___________________________________
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.18
================================
DECLARATION OF TRUST
BANK ONE Capital V
Dated as of June 17, 1999
================================
<PAGE>
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions................................................... 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name......................................................... 4
SECTION 2.2 Office....................................................... 4
SECTION 2.3 Purpose...................................................... 4
SECTION 2.4 Authority.................................................... 4
SECTION 2.5 Title to Property of the Trust............................... 4
SECTION 2.6 Powers of the Trustees....................................... 5
SECTION 2.7 Filing of Certificate of Trust............................... 6
SECTION 2.8 Duration of Trust............................................ 6
SECTION 2.9 Responsibilities of the Sponsor.............................. 6
Section 2.10 Declaration Binding on Securities Holders.................... 7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.................................................... 7
SECTION 3.2 Regular Trustees............................................ 7
SECTION 3.3 Delaware Trustee............................................ 8
SECTION 3.4 Property Trustee............................................ 8
SECTION 3.5 Not Responsible for Recitals or Sufficiency of
Declaration................................................. 8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation................................................... 9
SECTION 4.2 Fiduciary Duty................................................ 9
SECTION 4.3 Indemnification............................................... 10
SECTION 4.4 Outside Businesses............................................ 14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.................................................... 14
SECTION 5.2 Termination of Trust.......................................... 14
SECTION 5.3 Governing Law................................................. 15
SECTION 5.4 Headings...................................................... 15
SECTION 5.5 Successors and Assigns........................................ 15
</TABLE>
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<TABLE>
<S> <C>
SECTION 5.6 Partial Enforceability........................................ 15
SECTION 5.7 Counterparts.................................................. 15
</TABLE>
ii
<PAGE>
DECLARATION OF TRUST
OF
BANK ONE Capital V
June 17, 1999
DECLARATION OF TRUST ("Declaration") dated and effective as of June
-----------
17, 1999 by the Trustees (as defined herein), the Sponsor (as defined herein),
and by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act (as defined herein) for the
-----
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
<PAGE>
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time, or
------------ -- ---
any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Security" means a security representing an undivided
---------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Debenture Issuer" means the Parent in its capacity as the issuer of
----------------
the Debentures under the Indenture.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer and acquired by the Trust.
"Debenture Trustee" means the trustee under the Indenture until a
-----------------
successor is appointed thereunder, and thereafter means such successor trustee.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
2
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
---------
and the Debenture Trustee and any indenture supplemental thereto pursuant to
which the Debentures are to be issued.
"Parent" means BANK ONE CORPORATION, a Delaware corporation or any
------
successor entity in a merger.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
------------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
---------------
and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
-------
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
----
The Trust created by this Declaration is named "BANK ONE Capital V."
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
------
The address of the principal office of the Trust is c/o BANK ONE
CORPORATION, One First National Plaza, Chicago, Illinois 60670. At any time,
the Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 2.4 Authority.
---------
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
4
<PAGE>
SECTION 2.6 Powers of the Trustees.
----------------------
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange or any other national stock exchange or
the Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities;
(vi) to execute and deliver letters, documents, or instruments
with the Depository Trust Company relating to the Preferred
Securities;
5
<PAGE>
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five (55) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Preferred Securities;
6
<PAGE>
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Preferred Securities.
Section 2.10 Declaration Binding on Securities Holders.
-----------------------------------------
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
--------
The number of Trustees initially shall be three (3), and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided further that
-------- -------
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
---------------- -------- -------
who is an employee or officer of, or is affiliated with the Parent (a "Regular
-------
Trustee").
- -------
SECTION 3.2 Regular Trustees.
----------------
The initial Regular Trustees shall be:
M. Eileen Kennedy
Robert A. Rosholt
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and
7
<PAGE>
authority to cause the Trust to execute pursuant to Section 2.6; provided, that,
-------- ----
the registration statement referred to in Section 2.6(b)(i), including any
amendments thereto, shall be signed by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
----------------
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
----------------
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
-------------
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
- -------
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency of Declaration.
----------------------------------------------------------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
8
<PAGE>
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
9
<PAGE>
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
----------
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
----------
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 4.3 Indemnification.
---------------
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Trust) by reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable
10
<PAGE>
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
who is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 4.3(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a
11
<PAGE>
quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
holder of the Common Securities of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer as authorized in
this Section 4.3(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
holder of the Common Securities of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the holder of the Common
Securities at the time such determination is made, such Company Indemnified
Person acted in bad faith or in a manner that such person did not believe
to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Regular Trustees,
independent legal counsel or the holder of the Common Securities reasonably
determine that such person deliberately breached his duty to the Trust or
its Common or Preferred Security holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 4.3(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Preferred Security holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
4.3(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such capacity at
any time while this Section
12
<PAGE>
4.3(a) is in effect. Any repeal or modification of this Section 4.3(a)
shall not affect any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not
the Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(viii) For purposes of this Section 4.3(a), references to "the Trust"
---------
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 4.3(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 4.3(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Delaware Trustee (each of the Persons in clauses (i)
through (iii) being referred to as a "Fiduciary Indemnified Person") for, and to
----------------------------
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 4.3(b)
shall survive the termination of this Declaration.
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<PAGE>
SECTION 4.4 Outside Businesses.
------------------
Any Covered Person, the Sponsor and the Delaware Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
----------
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
--------------------
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, or the Trust; and
14
<PAGE>
(iv) before the issue of any Securities, with the consent of
all of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
SECTION 5.3 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
15
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ M. EILEEN KENNEDY
-----------------------------------
Name: M. Eileen Kennedy
Title: Regular Trustee
/s/ ROBERT A. ROSHOLT
-----------------------------------
Name: Robert A. Rosholt
Title: Regular Trustee
Chase Manhattan Bank Delaware, as
Delaware Trustee
By: /s/ DENIS KELLY
--------------------------------
Name: Dennis Kelly
Title: Assistant Vice President
BANK ONE CORPORATION, as Sponsor
By: /s/ M. EILEEN KENNEDY
--------------------------------
Name: M. Eileen Kennedy
Title: Treasurer
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of BANK ONE Capital V, desiring to form
a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S) 3810,
---- --
hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "BANK ONE Capital V."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated:
__________________________________________
Name: M. Eileen Kennedy
Title: Trustee
__________________________________________
Name: Robert A. Rosholt
Title: Trustee
Chase Manhattan Bank Delaware, as
Trustee
By:_______________________________________
Name: Denis Kelly
Title: Assistant Vice President
<PAGE>
====================================
Exhibit 4.19
AMENDED AND RESTATED DECLARATION
OF TRUST
BANK ONE CAPITAL [I]
Dated as of [Date]
====================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions .......................................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ..................... 9
SECTION 2.2 Lists of Holders of Securities ....................... 9
SECTION 2.3 Reports by the Institutional Trustee ................. 10
SECTION 2.4 Periodic Reports to Institutional Trustee ............ 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent ..... 10
SECTION 2.6 Events of Default; Waiver ............................ 10
SECTION 2.7 Event of Default; Notice ............................. 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name ................................................. 13
SECTION 3.2 Office ............................................... 13
SECTION 3.3 Purpose .............................................. 14
SECTION 3.4 Authority ............................................ 14
SECTION 3.5 Title to Property of the Trust ....................... 14
SECTION 3.6 Powers and Duties of the Regular Trustees ............ 14
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees ............................................. 18
SECTION 3.8 Powers and Duties of the Institutional Trustee ....... 18
SECTION 3.9 Certain Duties and Responsibilities of the
Institutional Trustee ................................ 21
SECTION 3.10 Certain Rights of Institutional Trustee .............. 23
SECTION 3.11 Delaware Trustee ..................................... 26
SECTION 3.12 Execution of Documents ............................... 26
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities............................................ 26
SECTION 3.14 Duration of Trust..................................... 26
SECTION 3.15 Mergers............................................... 26
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities .............. 28
SECTION 4.2 Responsibilities of the Sponsor ...................... 29
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees .................................. 29
SECTION 5.2 Delaware Trustee .................................... 30
SECTION 5.3 Institutional Trustee; Eligibility .................. 30
SECTION 5.4 Certain Qualifications of Regular Trustees and
Delaware Trustee Generally .......................... 31
SECTION 5.5 Regular Trustees .................................... 31
SECTION 5.6 Delaware Trustee .................................... 32
SECTION 5.7 Appointment, Removal and Resignation of Trustees .... 32
SECTION 5.8 Vacancies among Trustees ............................ 34
SECTION 5.9 Effect of Vacancies ................................. 34
SECTION 5.10 Meetings ............................................ 34
SECTION 5.11 Delegation of Power ................................. 35
SECTION 5.12 Merger, Conversion, Consolidation or Succession
to Business ......................................... 35
SECTION 5.13 Appointment of Authenticating Agent ................. 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DIstributions........................................ 37
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities ............. 38
SECTION 7.2 Execution and Delivery of Securities Certificates ... 39
SECTION 7.3 Paying Agent ........................................ 39
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust ................................ 40
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities .............................. 41
SECTION 9.2 Transfer of Certificates ............................ 41
SECTION 9.3 Deemed Security Holders ............................. 42
SECTION 9.4 Book Entry Interests ................................ 42
SECTION 9.5 Notices to Clearing Agency .......................... 43
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 9.6 Appointment of Successor Clearing Agency ............. 43
SECTION 9.7 Definitive Preferred Security Certificates ........... 44
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates ......................................... 44
SECTION 9.9 Maintenance of Office or Agency ...................... 45
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability ............................................ 45
SECTION 10.2 Exculpation .......................................... 46
SECTION 10.3 Fiduciary Duty ....................................... 46
SECTION 10.4 Indemnification ...................................... 47
SECTION 10.5 Outside Businesses ................................... 51
SECTION 10.6 Compensation; Fees ................................... 51
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year .......................................... 52
SECTION 11.2 Certain Accounting Matters ........................... 52
SECTION 11.3 Banking .............................................. 52
SECTION 11.4 Withholding .......................................... 53
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments ........................................... 53
SECTION 12.2 Meetings of the Holders of Securities; Action
by Written Consent ................................... 55
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional
Trustee .............................................. 57
SECTION 13.2 Representations and Warranties of Delaware
Trustee .............................................. 58
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices .............................................. 59
</TABLE>
<PAGE>
Page
----
SECTION 14.2 Governing Law......................... 60
SECTION 14.3 Intention of the Parties.............. 60
SECTION 14.4 Headings.............................. 60
SECTION 14.5 Successors and Assigns................ 60
SECTION 14.6 Partial Enforceability................ 60
SECTION 14.7 Counterparts.......................... 61
ANNEX I TERMS OF SECURITIES................... I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE... A2-1
EXHIBIT B SPECIMEN OF DEBENTURE................. B-1
EXHIBIT C UNDERWRITING AGREEMENT................ C-1
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
310(a)........................................... 5.3(a)
310(c)........................................... Inapplicable
311(c)........................................... Inapplicable
312(a)........................................... 2.2(a)
312(b)........................................... 2.2(b)
313.............................................. 2.3
314(a)........................................... 2.4
314(b)........................................... Inapplicable
314(c)........................................... 2.5
314(d)........................................... Inapplicable
314(f)........................................... Inapplicable
315(a)........................................... 3.9(b)
315(c)........................................... 3.9(a)
315(d)........................................... 3.9(a)
316(a)........................................... Annex I
316(c)........................................... 3.6(e)
_______________
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
BANK ONE CAPITAL [I]
[Date]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of [date] by the Trustees (as defined herein), the Sponsor (as
defined herein) and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Delaware Trustee, the Regular Trustees and the Sponsor
established BANK ONE Capital [I] (the "Trust"), a trust under the Delaware
Business Trust Act pursuant to a Declaration of Trust dated as of [date] (the
"Original Declaration"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on [date], for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
-----
"Authorized Officer" of a Person means any Person that is authorized
------------------
to bind such Person.
"Bank" means The First National Bank of Chicago, a national banking
----
association, and any successor thereto.
"Book Entry Interest" means a beneficial interest in a Global
-------------------
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as
<PAGE>
described in Section 9.4.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
------------
day on which banking institutions in The City of New York or the City of Chicago
are authorized or required by law or executive order to remain closed, or (c) a
day on which the Institutional Trustee's Corporate Trust Office or the Corporate
Trust Office of the Debenture Trustee is closed for business.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (s)3801 et seq., as it may be amended from time to time,
------------ -- ---
or any successor legislation.
"Capital Treatment Event" has the meaning set forth in Annex I hereto.
-----------------------
"Certificate" means a Common Security Certificate or a Preferred
-----------
Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
---------------
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Time" and each "Date of Delivery"
------------
under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Securities" has the meaning specified in Section 7.1.(a).
-----------------
"Common Securities Guarantee" means the guarantee agreement to be
---------------------------
dated as of [date] of the Sponsor in respect of
<PAGE>
the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
---------------------------
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means (i) when used with respect to the
----------------------
Institutional Trustee, the principal corporate trust office of the Institutional
Trustee located in New York, New York which on the date of this Declaration is
450 West 33rd Street, New York, New York 10001 - Attention: Corporate Trustee
Administration Department, (ii) when used with respect to the Debenture Trustee,
its Principal Corporate Trust Office as defined in the Indenture, and (iii) when
used with respect to the Bank, the principal office of the Bank located in
Chicago, Illinois which on the date of this Declaration is One First National
Plaza, Chicago, Illinois 60670 - Attention: Corporate Trust Administration.
"Covered Person" means: (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means BANK ONE CORPORATION, a Delaware corporation,
----------------
or any successor entity resulting from any consolidation, amalgamation, merger
or other business combination, in its capacity as issuer of the Debentures under
the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a New York banking
-----------------
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the series of Debentures to be issued by the
----------
Debenture Issuer under the Indenture to be held by the Institutional Trustee, a
specimen certificate for such series of Debentures being Exhibit B.
"Delaware Trustee" has the meaning set forth in Section
----------------
<PAGE>
5.2.
"Definitive Preferred Security Certificates" has the meaning set forth
------------------------------------------
in Section 9.4.
"Distribution" means a distribution payable to Holders of Securities
------------
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
---
"Event of Default" or "Declaration Event of Default" in respect of the
----------------
Securities means an Event of Default (as defined in the Indenture) has occurred
and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal Reserve
---------------
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
------------------
"Holder" means a Person in whose name a Certificate representing a
------
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the Indenture dated as of January 1, 1997, among the
---------
Debenture Issuer and the Debenture Trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the eligibility
---------------------
requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set forth in Section
-----------------------------
3.8(c).
<PAGE>
"Investment Company" means an investment company as defined in the
------------------
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
"Majority in liquidation amount of the Securities" means, except as
------------------------------------------------
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Securities of the relevant class.
"1997 Declaration" means, that certain Amended and Restated Trust
----------------
Agreement relating to First Chicago NBD Capital I, dated as of January 31, 1997,
by and among, the Sponsor, The Chase Manhattan Bank, as institutional trustee,
and Chase Manhattan Bank Delaware, as Delaware trustee.
"1997 Preferred Securities Guarantee" means, that certain Preferred
-----------------------------------
Securities Guarantee Agreement, dated as of January 31, 1997, by and between the
Sponsor and The Chase Manhattan Bank, as trustee.
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
<PAGE>
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(h).
------------
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning specified in Section 7.1(a).
--------------------
"Preferred Securities Guarantee" means the guarantee agreement to be
------------------------------
dated as of [date], of the Sponsor in respect of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a Book
-----------------------------------
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate representing a
------------------------------
Preferred Security substantially in the form of Exhibit A-1.
"Quorum" means a majority of the Regular Trustees or, if there are
------
only two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
---------------
<PAGE>
"Related Party" means, with respect to the Sponsor, any direct or
-------------
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, when used with respect to the
-------------------
Institutional Trustee or the Delaware Trustee, as the case may be, any officer
assigned to the Corporate Trust Office of the Institutional Trustee or the
corporate trust office of the Delaware Trustee, as the case may be, including
any managing director, vice president, assistant vice president, senior trust
officer, trust officer, assistant treasurer, assistant secretary or any other
officer of the Institutional Trustee or the Delaware Trustee, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers, and also, with respect to a particular matter, any
other officer, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
---------
successor rule or regulation.
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
---------------------
Preferred Securities Guarantee.
"Securities Register" has the meaning set forth in Section 9.2.
-------------------
"Securities Registrar" has the meaning set forth Section 9.2.
--------------------
"Series A Declaration" means that certain Amended and Restated Trust
--------------------
Agreement relating to BANK ONE Institutional Capital A, dated as of December 3,
1996, by and among, the Sponsor, The Chase Manhattan Bank, as property trustee,
and Chase Manhattan Bank Delaware, as Delaware trustee.
"Series B Declaration" means that certain Amended and Restated Trust
--------------------
Agreement relating to BANK ONE Institutional Capital B, dated as of December 5,
1996, by and among, the
<PAGE>
Sponsor, The Chase Manhattan Bank, as property trustee, and Chase Manhattan Bank
Delaware, as Delaware trustee.
"Series A Guarantee" means that certain Guarantee Agreement, dated as
------------------
of December 3, 1996, by and between the Sponsor and The Chase Manhattan Bank, as
trustee.
"Series B Guarantee" means that certain Guarantee Agreement, dated as
------------------
of December 5, 1996, by and between the Sponsor and The Chase Manhattan Bank, as
trustee.
"Sponsor" means BANK ONE CORPORATION, a Delaware corporation, or any
-------
successor entity resulting from any merger, consolidation, amalgamation or other
business combination, in its capacity as sponsor of the Trust.
"Successor Institutional Trustee" has the meaning set forth in Section
-------------------------------
3.8(f)(ii).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
--------------
"Tax Event" has the meaning set forth in Annex I hereto.
---------
"10% in liquidation amount of the Securities" means, except as
-------------------------------------------
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
--------------------
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all
<PAGE>
other Persons who may from time to time be duly appointed, qualified and serving
as Trustees in accordance with the provisions hereof, and references herein to a
Trustee or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement for the
----------------------
offering and sale of Preferred Securities in the form of Exhibit C.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by (SS) 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
<PAGE>
SECTION 2.2 Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such record date, provided
--------
that neither the Sponsor nor the Regular Trustees on behalf of the Trust shall
- ----
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Institutional
Trustee by the Sponsor and the Regular Trustees on behalf of the Trust, and (ii)
at any other time, within 30 days of receipt by the Trust of a written request
for a List of Holders as of a date no more than 14 days before such List of
Holders is given to the Institutional Trustee. The Institutional Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in the capacity
as Paying Agent (if acting in such capacity) provided that the Institutional
-------------
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
(S)(S) 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee.
------------------------------------
Within 60 days after November 15 of each year, the Institutional
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by (S) 313(a) of the Trust Indenture Act, if any, in the form and
in the manner provided by (S) 313 of the Trust Indenture Act. The Institutional
Trustee shall also comply with the other requirements of (S) 313 of the Trust
Indenture Act. The Sponsor shall promptly notify the Institutional Trustee when
the Preferred Securities are listed on any stock exchange.
SECTION 2.4 Periodic Reports to Institutional Trustee.
-----------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such documents, reports and
information as required by (S) 314 (if any) and the compliance certificate
required by (S) 314 of the Trust Inden-
<PAGE>
ture Act in the form, in the manner and at the times required by (S) 314(a)(4)
of the Trust Indenture Act, such compliance certificate to be delivered
annually on or before 120 days after the end of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in (S) 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to (S)
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
-------------------------
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
-------- ----
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of (S)
316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any
<PAGE>
right consequent thereon. Any waiver by the Holders of the Preferred Securities
of an Event of Default with respect to the Preferred Securities shall also be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Event of Default with respect to the Common Securities for all purposes of
this Declaration without any further act, vote, or consent of the Holders of the
Common Securities.
The Holders of a Majority in liquidation amount of the Preferred
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee, including the right to direct the Institutional Trustee to exercise the
remedies available to it as a holder of the Debentures; provided, however, that
(subject to the provisions of Section 3.9) the Institutional Trustee shall have
the right to decline to follow any such direction if the Institutional Trustee
shall determine that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction or if the Institutional Trustee, being
advised by counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Institutional Trustee, in good faith, by its board
of directors or trustees, executive committee, or a trust committee of directors
or trustees, and/or Responsible Officers, shall determine that the action or
proceeding so directed would involve the Institutional Trustee in personal
liability.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
-------------
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default under
the Declaration as provided below in this Section 2.6(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in this
Section 2.6(b), the Event of Default under the Declaration may only be
waived by the vote of the Holders of at least the proportion in liqui-
<PAGE>
dation amount of the Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
- -------- -------
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Preferred Securities and only the Holders of the Preferred
Securities will have the right to direct the Institutional Trustee in accordance
with the terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of (SS) 316(a)(1)(A) and 316(a)(1)(B) of the Trust
Indenture Act and such (SS) 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture
Act are hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing provisions of
this Section 2.6(b), upon such waiver, any such default shall cease to exist and
any Event of Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this Declaration, but no
such waiver shall extend to any subsequent or other default or Event of Default
with respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Institutional Trustee at the direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(c) shall be in
lieu of (S) 316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
<PAGE>
SECTION 2.7 Event of Default; Notice.
------------------------
(a) The Institutional Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with respect
to the Securities actually known to a Responsible Officer of the Institutional
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Event of Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
-------------
principal of (or premium, if any) or interest on any of the Debentures or in the
payment of any sinking fund installment established for the Debentures, the
Institutional Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge
of any default except:
(i) so long as the Institutional Trustee is a Paying Agent, a default
under Sections 7.01(i) and 7.01(ii) of the Indenture; or
(ii) any default as to which the Institutional Trustee shall have
received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
----
The Trust is named "BANK ONE Capital [I]," as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
<PAGE>
SECTION 3.2 Office.
------
The address of the principal office of the Trust is c/o BANK ONE
CORPORATION, One First National Plaza, Chicago, Illinois 60670. On ten Business
Days written notice to the Holders of Securities, the Regular Trustees may
designate another principal office.
SECTION 3.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.4 Authority.
---------
Subject to the limitations provided in this Declaration and to the
specific duties of the Institutional Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Institutional Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
------------------------------
Except as provided in Section 3.8 with respect to the Debentures and
the Institutional Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
<PAGE>
SECTION 3.6 Powers and Duties of the Regular Trustees.
-----------------------------------------
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the
Common Securities in accordance with this Declaration; provided, however,
-------- -------
that the Trust may issue no more than one series of Preferred Securities
and no more than one series of Common Securities, and, provided further,
-------- -------
that there shall be no interests in the Trust other than the Securities,
and the issuance of Securities shall be limited to a simultaneous issuance
of both Preferred Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange, Inc. or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by
the Sponsor, relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act;
(v) execute and enter into the Underwriting Agreement
providing for the sale of the Preferred
<PAGE>
Securities; and
(vi) to execute and file any agreement, certificate or other
document which such Regular Trustee deems necessary or appropriate in
connection with the issuance and sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that
-------- -------
the Regular Trustees shall cause legal title to the Debentures to be held
of record in the name of the Institutional Trustee for the benefit of the
Holders of the Preferred Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Tax Event or a Capital Treatment Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and
with respect to, for the purposes of (S)316(c) of the Trust Indenture Act
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
<PAGE>
(j) to give the certificate required by (S) 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) if duly appointed pursuant to the provisions herein, to act as
registrar, transfer agent or Paying Agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of
the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to
<PAGE>
ensure that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax purposes,
provided that such action does not adversely affect the interests of
-------- ----
Holders; and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
The Regular Trustees shall take all actions on behalf of the Trust
that are not specifically required by this Declaration to be taken by any other
Trustee.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) The Trust shall not, and the Trustees (including the
Institutional Trustee) shall not, engage in any activity other than as required
or authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
<PAGE>
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration or Annex I, (A)
direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Debentures, (B)
waive any past default that is waivable under the Indenture, (C) exercise
any right to rescind or annul any declaration that the principal of all
the Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required unless the Trust shall have received an opinion
of a nationally recognized independent counsel experienced in such matters
to the effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes the
Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Institutional Trustee.
----------------------------------------------
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Institutional Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Institutional Trustee in accordance with Section 5.7.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
<PAGE>
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Institutional Trustee Account") in the name of and under the
exclusive control of the Institutional Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in respect
of the Debentures held by the Institutional Trustee, deposit or cause to
be deposited such funds into the Institutional Trustee Account and make or
cause to be made payments to the Holders of the Preferred Securities and
Holders of the Common Securities from the Institutional Trustee Account in
accordance with Section 6.1. Funds in the Institutional Trustee Account
shall be held uninvested until disbursed in accordance with this
Declaration. The Institutional Trustee Account shall be maintained with
the Bank in its trust department so long as the Bank is a Paying Agent; if
the Bank is not a Paying Agent, the Institutional Trustee Account will be
maintained at the Institutional Trustee or at its direction. The
Institutional Trustee shall not be liable to any Person for the acts or
omissions of the Bank in connection with the administration of the
Institutional Trustee Account, unless such acts or omissions were taken or
made at the express instructions of the Institutional Trustee. The Sponsor
shall cause the Bank to (i) promptly advise the Institutional Trustee of
all deposits and withdrawals from the Institutional Trustee Account and of
any failure by the Bank to receive from the Debenture Issuer any payments
on the Debentures when due, (ii) provide the Institutional Trustee with
monthly reports as to the activity in the Institutional Trustee Account
and (iii) permit the Institutional Trustee to have access to the Bank's
records with respect to the Institutional Trustee Account upon reasonable
request therefor;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the
occurrence of certain special events (as may be defined in the terms of
the
<PAGE>
Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Securities.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
(e) The Institutional Trustee may take any Legal Action which arises
out of or in connection with an Event of Default of which a Responsible Officer
of the Institutional Trustee has knowledge or the Institutional Trustee's duties
and obligations under this Declaration or the Trust Indenture Act and if such
Institutional Trustee shall have failed to take such Legal Action after a
written request from a Holder of the Preferred Securities, then such Holder of
the Preferred Securities may take such Legal Action, to the same extent as if
such Holders of Preferred Securities held a principal amount of Debentures equal
to the liquidation amount of such Preferred Securities, without first proceeding
against the Institutional Trustee or the Trust; provided, however, that if an
-------- -------
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Debenture Issuer to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such Holder (a "Direct Action") on or after the respective due date specified in
the Debentures. In connection with such Direct Action, the rights of the Holders
of the Common Securities will be subrogated to the rights of such Holder of
Preferred Securities to the extent of any payment made by the Issuer to such
Holder of Preferred Securities in such Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities; or
<PAGE>
(ii) a successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7 (a "Successor
Institutional Trustee").
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Institutional Trustee occurs and is continuing, the Institutional Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Institutional Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with (S) 317(b) of the Trust Indenture Act.
Any Paying Agent may be removed by the Institutional Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Institutional Trustee.
(i) Subject to this Section 3.8, the Institutional Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
<PAGE>
SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee.
----------------------------------------------------------------
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and in the Securities and no implied covenants shall be read
into this Declaration against the Institutional Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6)
of which a Responsible Officer of the Institutional Trustee has actual
knowledge, the Institutional Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee
shall be determined solely by the express provisions of this
Declaration and in the Securities and the Institutional Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration and in
the Securities, and no implied covenants or obligations shall be read
into this Declaration or the Securities against the Institutional
Trustee; and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Institutional Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the
<PAGE>
Institutional Trustee, the Institutional Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
reasonably satisfactory to the Institutional Trustee against such risk or
liability is not reasonably assured to it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Institutional Trustee Account shall be to deal with such property in a
similar manner as the Institutional Trustee deals with similar property for
its own account, subject to the protections and limitations on liability
afforded to the Institutional Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
<PAGE>
(vii) the Institutional Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree in writing
with the Sponsor. Money held by the Institutional Trustee need not be
segregated from other funds held by it except in relation to the
Institutional Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise required
by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Institutional
Trustee be liable for any default or misconduct of the Regular Trustees or
the Sponsor.
SECTION 3.10 Certain Rights of Institutional Trustee.
---------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Institutional Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the Regular
Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or
<PAGE>
any filing under tax or securities laws) or any rerecording, refiling or
registration thereof;
(v) the Institutional Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of such
experts' area of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice or opinion, such
counsel may be counsel to the Sponsor or any of its Affiliates, and may
include any of its employees. The Institutional Trustee shall have the
right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the costs, expenses
(including attorneys' fees and expenses and the expenses of the
Institutional Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Institutional
Trustee provided, that, nothing contained in this Section 3.10(a)(vi) shall
be taken to relieve the Institutional Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Institutional Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Institutional
Trustee shall not be
<PAGE>
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Institutional Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Institutional
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Institutional Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Institutional Trustee under the terms of
the Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in or accordance with such instructions;
(xi) except as otherwise expressly provided by this Declaration, the
Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(xii) the Institutional Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable
<PAGE>
law, to perform any such act or acts, or to exercise any such right, power, duty
or obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
----------------
Notwithstanding any other provision of this Declaration other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Institutional Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of (S) 3807 of the
Business Trust Act.
SECTION 3.12 Execution of Documents.
----------------------
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or provided herein, any Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Debentures or the Securities.
SECTION 3.14 Duration of Trust.
-----------------
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall have existence for fifty-five (55) years from the Closing
Date.
<PAGE>
SECTION 3.15 Mergers.
-------
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if
there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its property and assets substantially
as an entirety, a trust organized as such under the laws of any State; provided
--------
that:
- ----
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of issuance,
on any national securities exchange or with another organization on which
the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating
<PAGE>
organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with respect to
any dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease the Sponsor has received an opinion of a
nationally recognized independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the new entity);
and
(B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor the
Successor Entity will be required to register as an Investment
Company;
(C) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Trust (or the Successor
Entity) will continue to be classified as a grantor trust for United
States federal income tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided by the
Preferred Securities Guarantee and the Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its proper-
<PAGE>
ties and assets substantially as an entirety to any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, replacement, conveyance, transfer or
lease would cause the Trust or the Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
On the Closing Date, the Sponsor will purchase all of the Common
Securities issued by the Trust, in an amount at least equal to 3% of the capital
of the Trust, at the same time as the Preferred Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) at the sole discretion of the Sponsor, to prepare for filing by
the Trust with the Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) at the sole discretion of the Sponsor, to prepare for filing by
the Trust an application to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National Market for listing upon
notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the
<PAGE>
registration of the Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of the Underwriting Agreement providing
for the sale of the Preferred Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
------------------
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a majority in
liquidation amount of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities; provided, however, that, the
-------- -------
number of Trustees shall in no event be less than two (2); provided further
-------- -------
that (1) one Trustee, in the case of a natural person, shall be a person
who is a resident of the State of Delaware or that, if not a natural
person, is an entity which has its principal place of business in the State
of Delaware (the "Delaware Trustee"); (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with the Sponsor
(a "Regular Trustee"); and (3) one Trustee shall be the Institutional
Trustee for so long as this Declaration is required to qualify as an
indenture under the Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
SECTION 5.2 Delaware Trustee.
----------------
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its
<PAGE>
principal place of business in the State of Delaware, and otherwise meets
the requirements of applicable law,
provided that, if the Institutional Trustee has its principal place of business
- -------- ----
in the State of Delaware and otherwise meets the requirements of applicable law,
then the Institutional Trustee shall also be the Delaware Trustee and Section
3.11 shall have no application.
SECTION 5.3 Institutional Trustee; Eligibility.
----------------------------------
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of (S) 310(b) of the Trust Indenture
Act, the Institutional Trustee and the Holder of the Common Securities (as if it
were the obligor referred to in (S) 310(b) of the Trust Indenture Act) shall in
all respects comply with the provisions of (S) 310(b) of the Trust Indenture
Act. To
<PAGE>
the extent permitted by the Trust Indenture Act, the Institutional Trustee
shall not be deemed to have a conflicting interest with respect to the
Securities of any series by virtue of being Institutional Trustee with respect
to the Securities of any particular series of Securities other than that series
or by virtue of being trustee under the Indenture originally dated as of
November 15, 1996, between the Sponsor and the Institutional Trustee.
(d) The Preferred Securities Guarantee, the Series A Declaration, the
Series B Declaration, the Series A Guarantee, the Series B Guarantee, the 1997
Preferred Securities Guarantee and the 1997 Declaration shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be:
The Chase Manhattan Bank
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee
---------------------------------------------------------------
Generally.
---------
Each Regular Trustee and the Delaware Trustee (unless the
Institutional Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Regular Trustees.
----------------
The initial Regular Trustees shall be:
[Laurence Goldman
M. Eileen Kennedy
Robert A. Rosholt]
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have
<PAGE>
the power and authority to cause the Trust to execute pursuant to Section 3.6;
and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
-----------------
The Delaware Trustee shall be:
Chase Manhattan Bank Delaware
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
-------------------------------------------------
(a) Subject to Section 5.7(b), Trustees may be appointed or
removed without cause at any time except during an event of default:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Institutional
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Institutional Trustee and delivered to the
Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.7(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office
<PAGE>
until his successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; provided,
--------
however, that:
- -------
(i) No such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered to
the Trust, the Sponsor and the resigning Institutional Trustee;
or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the
Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor
Institutional Trustee as the case may be if the Institutional Trustee or the
Delaware Trustee delivers an instrument of resignation in accordance with this
Section 5.7.
(e) If no Successor Institutional Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as provided
in this Section 5.7 within 60 days after delivery of an instrument of
resignation or removal, the Institutional Trustee or Delaware Trustee resigning
or being removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Institutional Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Institutional
Trustee or Successor Delaware Trustee, as the case may be.
<PAGE>
(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or successor
Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.7, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.10 Meetings.
--------
If there is more than one Regular Trustee, meetings of the Regular
Trustees may be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting
<PAGE>
for the express purpose of objecting to the transaction of any activity on the
ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. Notwithstanding the foregoing, any
action which may be taken at a meeting of the Regular Trustees (or a committee
thereof) may be taken pursuant to a unanimous written consent of the Regular
Trustees (or committee thereof), the execution of such consent to be deemed a
waiver by such Regular Trustee of any prior notice required in connection with
such action. In the event there is only one Regular Trustee, any and all action
of such Regular Trustee shall be evidenced by a written consent of such Regular
Trustee.
SECTION 5.11 Delegation of Power.
-------------------
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
<PAGE>
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Institutional Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Institutional Trustee or
the Delaware Trustee, as the case may be, shall be the successor of the
Institutional Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 5.13 Appointment of Authenticating Agent.
-----------------------------------
The Institutional Trustee may appoint an Authenticating Agent or Agents,
which may include any Affiliate of the Sponsor, with respect to the Securities
which shall be authorized to act on behalf of the Institutional Trustee to
authenticate the Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
9.2, and Securities so authenticated shall be entitled to the benefits of this
Declaration and shall be valid and obligatory for all purposes as if
authenticated by the Institutional Trustee hereunder. Wherever reference is
made in this Declaration to the authentication and delivery of the Securities by
the Institutional Trustee or the Institutional Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Institutional Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Sponsor and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, or of any State or Territory or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined
<PAGE>
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Institutional Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Institutional Trustee and to the Sponsor. The
Institutional Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Sponsor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Institutional
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Sponsor and shall give notice of such appointment in the manner provided
in Section 14.1 to all holders of Securities. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provision of this Section.
The Sponsor agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Institutional Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned
Declaration.
<PAGE>
Dated:
__________________________
As Institutional Trustee
By:__________________________
As Authenticating Agent
By:__________________________
Authorized Officer
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
-------------
Holders shall receive Distributions (as defined herein) in accordance
with the applicable terms of the relevant Holder's Securities. Distributions
shall be made on the Preferred Securities and the Common Securities in
accordance with the preferences set forth in their respective terms. If and to
the extent that the Debenture Issuer makes a payment of interest (including
Compounded Interest (as defined in the Indenture) and Additional Sums (as
defined in the Indenture)), premium and/or principal on the Debentures held by
the Institutional Trustee (the amount of any such payment being a "Payment
Amount"), the Institutional Trustee shall and is directed, to the extent funds
are available for that purpose, to make or cause to be made a distribution (a
"Distribution") of the Payment Amount to Holders.
<PAGE>
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Regular Trustees shall on behalf of the Trust issue one class
of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the
"Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities.") The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed (either by manual or facsimile signature) any of the
Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such Security, shall be
the Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
<PAGE>
(e) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2 Execution and Delivery of Securities Certificates.
-------------------------------------------------
At the time of delivery of the Securities, the Regular Trustees shall
cause Certificates to be authenticated by the Institutional Trustee on behalf of
the Trust and delivered to or upon the written order of the Trust, signed by two
Regular Trustees without further corporate action by the Sponsor, in authorized
denominations.
A Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Institutional Trustee. Such signature
shall be conclusive evidence that the Security has been authenticated under this
Declaration. The Institutional Trustee's certificates of authentication shall
be substantially in the form set forth in Exhibits A-1 and A-2.
<PAGE>
SECTION 7.3 Paying Agent.
------------
The Paying Agent shall make Distributions to Holders from the
Institutional Trustee Account and shall report the amounts of such Distributions
to the Institutional Trustee and the Regular Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Institutional Trustee
Account for the purpose of making the Distributions referred to above. The
Institutional Trustee may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agent shall initially be the Bank, and any co-
paying agent chosen by the Bank, and reasonably acceptable to the Regular
Trustees. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Regular Trustees and the
Institutional Trustee. In the event that the Bank shall no longer be the Paying
Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Institutional Trustee shall appoint a successor that is reasonably
acceptable to the Regular Trustees to act as Paying Agent (which shall be a bank
or trust company). Such successor Paying Agent or any additional Paying Agent
shall execute and deliver to the Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Trustees that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Holders in trust for the benefit
of the Securityholders entitled thereto until such sums shall be paid to such
Holders, will give the Institutional Trustee notice of any default by the Trust
(or any other obligor on the Securities) in the making of any payment on the
Securities and will, at any time during the continuance of any such default,
upon the written request of the Institutional Trustee, forthwith pay to the
Institutional Trustee all sums so held in trust by such Paying Agent. The
Paying Agent shall return all unclaimed funds to the Institutional Trustee and
upon removal of a Paying Agent such Paying Agent shall also return all funds in
its possession to the Institutional Trustee. The provisions of Sections 3.9,
3.10 and 10.4 herein shall also apply to the Bank in its role as Paying Agent,
for so long as the Bank shall act as Paying Agent and, to the extent applicable,
to any other Paying Agent appointed hereunder. Any reference in this
Declaration to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
<PAGE>
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
--------------------
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the filing of a certificate of
cancellation with respect to the Trust after having obtained the consent of
a majority in liquidation amount of the Securities affected thereby voting
together as a single class to file such certificate of cancellation or the
revocation of the Sponsor's charter and the expiration of 90 days after the
date of revocation without a reinstatement thereof;
(iii) upon the liquidation of the Trust in accordance with the terms
of the Securities and the distribution of all of the Debentures endorsed
thereon in exchange for all of the Securities; or
(iv) upon the entry of a decree of judicial dissolution of the Holder
of the Common Securities, the Sponsor or the Trust;
(v) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders in accordance with the terms of the Securities; or
(vi) before the issuance of any Securities, with the consent of all of
the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
<PAGE>
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
----------------------
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) The Sponsor may not transfer the Common Securities.
SECTION 9.2 Transfer of Certificates.
------------------------
The Institutional Trustee shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 9.9, a register or registers for
the purpose of registering Certificates and transfers and exchanges of Preferred
Securities Certificates (the "Securities Register") in which, the registrar
designated by the Institutional Trustee (the "Securities Registrar") with the
reasonable consent of the Regular Trustees, subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
9.1(c) in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided.
The Bank shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
9.9, the Regular Trustees or any one of them shall execute, and the
Institutional Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate liquidation amount
dated the date of such authentication.
The Preferred Securities Certificates shall be dated the date of their
authentication.
<PAGE>
The Securities Registrar shall not be required to register the
transfer of (i) any Preferred Securities beginning at the opening of business 15
days before the day of mailing of a notice of redemption and ending at the close
of business on the day of such mailing or (ii) any Preferred Securities selected
for redemption except the unredeemed portion of any Preferred Security being
redeemed in part. At the option of a Holder, Preferred Securities Certificates
may be exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate liquidation amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 9.9.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Institutional
Trustee in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange Preferred Securities
Certificates.
The provisions of Sections 3.9, 3.10 and 10.4 herein shall also apply
to the Bank in its role as Securities Registrar, for so long as the Bank shall
act as Securities Registrar.
SECTION 9.3 Deemed Security Holders.
-----------------------
The Trustees and the Securities Registrar may treat the Person in
whose name any Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the Securities represented
by such Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the Securities
represented by such Certificate on the part of any Person, whether or not the
Trust, the Trustees or the Securities Registrar shall have actual or other
notice thereof.
<PAGE>
SECTION 9.4 Book Entry Interests.
--------------------
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance, will be issued in
the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, or its custodian, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such Global
Certificates, except as provided in Section 9.7. Unless and until definitive,
fully registered Preferred Security Certificates (the "Definitive Preferred
Security Certificates") have been issued to the Preferred Security Beneficial
Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust, the Trustees, the Securities Registrar and the Paying
Agent shall be entitled to deal with the Clearing Agency for all purposes
of this Declaration (including the payment of Distributions on the Global
Certificates and receiving approvals, votes or consents hereunder) as the
Holder of the Preferred Securities and the sole holder of the Global
Certificates and shall have no obligation to the Preferred Security
Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments of
Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants.
<PAGE>
SECTION 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Trustees shall give all such
notices and communications specified herein to be given to the Preferred
Security Holders to the Clearing Agency, and shall have no notice obligations to
the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
----------------------------------------
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities or is no longer
able to properly discharge its functions, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to such
Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
------------------------------------------
If:
(a) a Clearing Agency elects to discontinue its services or is no
longer able to properly discharge its functions as securities depositary
with respect to the Preferred Securities and a successor Clearing Agency is
not appointed within 90 days after such discontinuance or after the Regular
Trustees become aware of such inability pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book entry system through the Clearing Agency with respect to
the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(d) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Certificates to
<PAGE>
be delivered to Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust, or
any agents thereof shall be liable for any delay in delivery of such
instructions and each of them may conclusively rely on and shall be
protected in relying on, said instructions of the Clearing Agency. The
Definitive Preferred Security Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Preferred Securities may
be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If:
(a) any mutilated Certificates should be surrendered to the
Institutional Trustee or the Securities Registrar or if the Institutional
Trustee or the Securities Registrar shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Institutional Trustee, the
Securities Registrar and the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute,
and upon any Regular Trustee's request, the Institutional Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Regular Trustees, Institutional Trustee or Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally
<PAGE>
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
SECTION 9.9 Maintenance of Office or Agency.
-------------------------------
The Institutional Trustee shall designate, with the consent of the
Regular Trustees, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Securities may be served. The
Corporate Trust Office of the Bank is initially designated the office for such
purpose. The Regular Trustees or the Institutional Trustee shall give prompt
written notice to the Sponsor and to the Holders of any change in the location
of the Securities Register or any such office or agency.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
---------
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to (S) 3803(a) of the Business Trust Act, the Holders of
the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General
<PAGE>
Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
SECTION 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Institutional Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
<PAGE>
(i) whenever a conflict of interest exists or arises between
any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4 Indemnification.
---------------
(a) (i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified 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 (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified
<PAGE>
Person against expenses (including attorneys' fees and expenses),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the
Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in its
favor by reason of the fact that he is or was a Company Indemnified Person
against expenses (including attorneys' fees and expenses) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust and
except that no such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such
Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full
<PAGE>
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this Section
10.4(a) (unless ordered by a court) shall be made by the Debenture Issuer
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses) incurred by a
Company Indemnified Person in defending a civil, criminal, administrative
or investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 10.4(a) shall be paid by the Debenture Issuer in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Debenture Issuer as authorized in
this Section 10.4(a). Notwithstanding the foregoing, no advance shall be
made by the Debenture Issuer if a determination is reasonably and promptly
made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent legal counsel in a written opinion or (iii) the
Common Security Holder of the Trust, that, based upon the facts known to
the Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees, independent legal
<PAGE>
counsel or Common Security Holder reasonably determine that such person
deliberately breached his duty to the Trust or its Common or Preferred
Security Holders.
(vi) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 10.4(a) shall
not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Preferred Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.4(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such capacity at
any time while this Section 10.4(a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or
obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such
liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 10.4(a) shall, unless otherwise
provided when authorized or ratified,
<PAGE>
continue as to a person who has ceased to be a Company Indemnified
Person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Debenture Issuer agrees to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of
the Institutional Trustee and the Delaware Trustee, and (iv) any officers,
directors, shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Institutional Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv) being referred to
as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any and all loss, liability, damage,
claim or expense including taxes (other than taxes based on the income of
such Fiduciary Indemnified Person) incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration or the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 10.4(b) shall survive
the satisfaction and discharge of this Declaration.
<PAGE>
SECTION 10.5 Outside Businesses.
------------------
Any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the
Delaware Trustee, or the Institutional Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person, the Sponsor, the Delaware Trustee and the Institutional
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Covered Person, the Delaware Trustee and the
Institutional Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Sponsor or its Affiliates.
SECTION 10.6 Compensation; Fees.
------------------
The Sponsors agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to their respective negligence or
bad faith.
<PAGE>
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes.
(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 Banking.
-------
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
-------- -------
respect of the Debentures held by the Institutional Trustee shall be made
directly to the Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole
<PAGE>
signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Institutional Trustee shall designate the
- -------- -------
signatories for the Institutional Trustee Account.
SECTION 11.4 Withholding.
-----------
The Trust, the Regular Trustees and the Paying Agent shall comply with
all withholding requirements under United States federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such forms
or certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two Regular
Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the Institutional
Trustee; and
(iii) if the amendment affects the rights, powers,
<PAGE>
duties, obligations or immunities of the Delaware Trustee, the Delaware
Trustee;
(b) no amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless the Institutional Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the
<PAGE>
Common Securities and;
(f) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration or to make any other provisions with respect to matters or
questions arising under this Declaration, which shall not be inconsistent
with other provisions of this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the
Holders; and
(v) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure that the Trust
will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Securities are outstanding or to ensure
that the Trust will not be required to register as an investment company
under the Investment Company Act.
(h) The Institutional Trustee and the Delaware Trustee may, but
shall not be obligated to, sign any amendment which affects their respective
rights, powers, duties, obligations or immunities under this Declaration or
otherwise.
SECTION 12.2 Meetings of the Holders of Securities; Action by
------------------------------------------------
<PAGE>
Written Consent.
---------------
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call
a meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more notices in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing
the Security Certificates held by the Holders of Securities exercising the right
to call a meeting and only those Securities specified shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least seven days and not more
than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any action
that may be taken at a meeting of the Holders of Securities may be taken
without a meeting if a consent in writing setting forth the action so taken
is signed by the Holders of Securities owning not less than the minimum
amount of Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose
<PAGE>
of taking any action without a meeting shall be returned to the Trust
within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Preferred Securities are then listed or trading,
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of Securities, waiver
of any such notice, action by consent without a meeting, the establishment
of a record date, quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such right to vote.
<PAGE>
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
-------------------------------------------------------
The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee that:
(a) the Institutional Trustee is a New York banking corporation with
trust powers and authority under the laws of the State of New York to
execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Institutional Trustee. The Declaration
has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law);
(c) the execution, delivery and performance of this Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for
the execution, delivery or performance by the Institutional Trustee, of
this Declaration.
<PAGE>
SECTION 13.2 Representations and Warranties of Delaware Trustee.
--------------------------------------------------
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration.
(b) The Delaware Trustee has authorized the performance of its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware banking authority is required for the execution,
delivery or performance by the Delaware Trustee, of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
-------
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and
<PAGE>
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities and the Institutional
Trustee):
BANK ONE Capital [I]
c/o BANK ONE CORPORATION
One First National Plaza
Chicago, Illinois 60670
Attention: Treasurer
Telecopy: (312) 732-3366
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to
the Holders of the Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trustee Administration
Department
(c) if given to the Institutional Trustee, at the Institutional
Trustee's mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration
Department
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder
of the Common Securities may give notice to the Trust):
BANK ONE CORPORATION
One First National Plaza
Chicago, Illinois 60670
Attention: Treasurer
<PAGE>
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
------------------------
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
SECTION 14.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 Successors and Assigns
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
<PAGE>
SECTION 14.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
____________________________________
Laurence Goldman, as Regular Trustee
_____________________________________
M. Eileen Kennedy, as Regular Trustee
_____________________________________
Robert A. Rosholt, as Regular Trustee
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: _____________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By:_______________________________
Name:
Title:
BANK ONE CORPORATION,
as Sponsor
By:_______________________________
Name:
Title:
<PAGE>
ANNEX I
TERMS OF
[[FLOATING RATE][FIXED RATE] PREFERRED SECURITIES
[FLOATING RATE][FIXED RATE] COMMON SECURITIES]
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust, dated as of [date] (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus referred to below):
1. Designation and Number.
----------------------
(a) Preferred Securities. Preferred Securities of the Trust
--------------------
with an aggregate liquidation amount with respect to the assets of the Trust of
[amount] million dollars ($ ) and a liquidation amount with respect to the
assets of the Trust of [$1,000] per preferred security, are hereby designated
for the purposes of identification only as ["Floating Rate Preferred
Securities"][ % Preferred Securities] (the "Preferred Securities"). The
Preferred Security Certificates evidencing the Preferred Securities shall be
substantially in the form of Exhibit A-1 to the Declaration, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice or to conform to the rules of any stock exchange on
which the Preferred Securities are listed.
(b) Common Securities. Common Securities of the Trust with an
-----------------
aggregate liquidation amount with respect to the assets of the Trust of
dollars ($ ) and a liquidation amount with respect to the assets of
the Trust of [$1,000] per common security, are hereby designated for the
purposes of identification only as ["Floating Rate Common Securities"] [ %
Common Securities] (the "Common Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice.
<PAGE>
2. Distributions.
-------------
(a) Each Security will be entitled to receive cumulative cash
distributions payable at the Distribution Rate (as defined herein) as in effect
from time to time applied to the stated liquidation amount of [$1,000] per
Security. Distributions in arrears for more than one quarter will bear interest
thereon compounded quarterly at the Distribution Rate (to the extent permitted
by applicable law). The term "Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor.
(b) The Distribution Rate in respect of the Securities will be [a
rate equal to per annum based on a year of twelve thirty day months][a floating
rate per annum determined by reference to 3-Month LIBOR, determined as described
below, plus a margin of 0.55%. "3-Month LIBOR" means the London interbank
offered rate for three month U.S. dollar deposits and with respect to any
Distribution Period (as defined below) will be calculated by The First National
Bank of Chicago, as calculation agent (the "Calculation Agent"), as follows:
(i) On the second Market Day (as defined below) preceding the
commencement of such Distribution Period (each, a "Determination Date"), 3-
Month LIBOR will be determined on the basis of the offered rate for
deposits of not less than U.S. $1,000,000 for a period of three months (the
"Index Maturity"), commencing on the second Market Day immediately
preceding the commencement of such Distribution Period, which appears on
the display designated as Page 3750 on the Dow Jones Telerate Service (or
such other pages as may replace Page 3750 on that service for the purpose
of displaying London interbank offered rates of major banks) ("Telerate
Page 3750") as of 11:00 a.m., London time on said Determination Date. If no
such offered rate appears, 3-Month LIBOR with respect to such Distribution
Period will be determined as described in (ii) below.
(ii) With respect to a Determination Date on which no such offered
rate appears on Telerate Page 3750 as described in (i) above, 3-Month LIBOR
shall be the arithmetic mean, expressed as a percentage, of the offered
rates (unless by
<PAGE>
its terms such display provides for only a single rate, in which case a
single rate shall be used) for deposits in U.S. dollars for the Index
Maturity which appears on the display designated as "LIBO" on the Reuters
Monitor Money Market Rates Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London interbank
offered rates of major banks) ("Reuters Screen LIBO Page") as of 11:00
a.m., London time, on such date. If, in turn, at least two such rates are
not displayed on the Reuters Screen LIBO Page at such time (unless, as
aforesaid, only a single rate is required), the Calculation Agent will
obtain from each of four reference banks in London selected by the
Calculation Agent ("Reference Banks") such bank's offered quotation
(expressed as a percentage per annum) as of approximately 11:00 a.m.,
London time, on such date for deposits in U.S. dollars to prime banks in
the London interbank market for the Index Maturity. If two or more such
quotations are provided as requested, then 3-Month LIBOR for such date
shall be the arithmetic average of such quotations. If, in turn, fewer than
two such quotations are provided as requested, then 3-Month LIBOR for such
date will be obtained from the preceding Market Day for which the Reuters
Screen LIBO Page displayed a rate for the Index Maturity.
(iii) If on any Determination Date, the Calculation Agent is required
but unable to determine 3-Month LIBOR in the manner provided in paragraphs
(i) and (ii) above, 3-Month LIBOR for such Distribution Period shall be 3-
Month LIBOR as determined on the previous Determination Date.
The term "Market Day" means any Business Day on which commercial banks
and foreign exchange markets are open for business (including dealings in
foreign exchange and foreign currency deposits) in New York and London.]
"Distribution Period" means each period beginning on, and including,
[date], and ending on, but excluding, the first Distribution Date (as defined
below), and each successive period beginning on, and including, a Distribution
Date and ending on, but excluding, the next succeeding Distribution Date.
The Distribution Rate for any Distribution Period will at no time be
higher than the maximum rate then permitted by New York law as the same may be
modified by United States law.
<PAGE>
All percentages resulting from any calculations referred to herein
will be rounded, if necessary, to the nearest multiple of 1/100 of 1% and all
U.S. dollar amounts used in or resulting from such calculations will be rounded
to the nearest cent (with one-half cent or more being rounded upwards).
[(c) The Calculation Agent shall, as soon as practicable after 11:00
a.m., London time, on each Determination Date, determine the Distribution Rate
and inform the Institutional Trustee and the Paying Agent. Unless otherwise
provided by the Institutional Trustee, the Paying Agent will calculate the
amount of distributions payable in respect of the following Distribution Period
(the "Distribution Amount").] The Distribution Amount shall be calculated by
applying the Distribution Rate to the liquidation amount of each Security
outstanding at the commencement of the Distribution Period, multiplying each
such amount by [the actual number of days in the Distribution Period concerned
(which actual number of days shall include the first day but exclude the last
day of such Distribution Period) divided by 360] and rounding the resultant
figure to the nearest cent (with one-half cent or more being rounded upwards).
The determination of the Distribution Rate by the Calculation Agent and the
Distribution Amount by the Paying Agent will (in the absence of wilful default,
bad faith or manifest error) be final, conclusive and binding on all concerned.
[None of the Institutional Trustee, the Paying Agent, the Calculation Agent, the
Trust or the Sponsor (or any of their respective officers, directors, agents,
beneficiaries, employees or affiliates) shall have any liability to any person
for (i) the selection of any Reference Bank or (ii) any inability to retain
major banks in the London interbank market, in the case of the Calculation
Agent, which is caused by circumstances beyond its reasonable control.]
Upon the request of a holder of a Security, the Calculation Agent will
provide the Distribution Rate then in effect and, if determined, the
Distribution Rate for the next Distribution Period with respect to the
Securities.
(d) All certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and calculation of
Distributions on the Securities, whether by the Reference Banks (or any of them)
or the Calculation Agent, Institutional Trustee or Paying Agent, will (in the
absence of wilful default, bad faith or manifest error) be binding on the Trust,
the Sponsor, the Trustees and all
<PAGE>
of the holders of the Preferred Securities, and no liability will (in the
absence of wilful default, bad faith or manifest error) attach to the
Calculation Agent, Institutional Trustee or Paying Agent in connection with the
exercise or non-exercise by any of them of their powers, duties and discretion.
(e) Distributions on the Securities will be cumulative, will accrue
from [date] , and will be payable [quarterly/monthly/semiannually] in arrears,
on [indicate dates] of each year, commencing on [date], except as otherwise
described below. The Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding [20] consecutive quarters
(each an "Extension Period"), during which Extension Period no interest shall be
due and payable on the Debentures, provided that no Extension Period shall end
-------- ----
on a day other than an interest payment date for the Debentures or shall extend
beyond the date of maturity of the Debentures. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
[quarterly] Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Distribution Rate compounded
quarterly during any such Extension Period. At the end of the Extension Period,
all accrued and unpaid Distributions (but only to the extent payments are made
in respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor) will be payable to the
Holders of the Securities in whose names the Securities are registered in the
Security Register on the record date relating to the Distribution Date on which
the Extension Period ends. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Period together
-------- ----
with all such previous and further extensions thereof may not exceed [20]
consecutive quarters or extend beyond the maturity date of the Debentures. Upon
the termination of any Extension Period and the payment of all amounts then due,
the Debenture Issuer may commence a new Extension Period, subject to the above
requirements.
(f) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book-entry only form,
the relevant record dates shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest payment
<PAGE>
dates on the Debentures. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading "Description of the
Preferred Securities -- Book-Entry Only Issuance -- The Depository Trust
Company" in the Prospectus Supplement dated [date] to the Prospectus dated
[date] (together, the "Prospectus"), of the Trust included in the Registration
Statement on Form S-3 of the Sponsor, the Trust and certain other business
trusts. The relevant record dates for the Common Securities shall be the same
record date as for the Preferred Securities when the Preferred Securities are
not in book-entry only form. If the Preferred Securities shall not continue to
remain in book-entry only form, the relevant record dates for the Preferred
Securities shall be [dates], as the case may be. Payments in respect of
Preferred Securities held in certificated form will be made by check mailed to
the Holder entitled thereto. Distributions payable on any Securities that are
not punctually paid on any Distribution payment date, as a result of the
Debenture Issuer having failed to make a payment under the Debentures, will
cease to be payable to the Person in whose name such Securities are registered
on the relevant record date, and such defaulted Distribution will instead be
payable to the Person in whose name such Securities are registered on the
special record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution payable on such date will
be made on the next succeeding day that is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date (each date on which Distributions are actually
payable, a "Distribution Date").
(g) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any voluntary or involuntary dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders
<PAGE>
of Securities after satisfaction of liabilities of creditors an amount equal to
the aggregate of the stated liquidation amount of [$1,000]per Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding-up or termination, Debentures in an aggregate stated
principal amount equal to the aggregate stated liquidation amount of such
Securities, with an interest rate equal to the Distribution Rate of, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Securities, shall be distributed on a Pro Rata basis to
the Holders of the Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
---------------------------
[(a) Upon the repayment of the Debentures in whole or in part, whether
at maturity or upon redemption (either at the option of the Debenture Issuer, in
accordance with the Indenture, or pursuant to a Tax Event or Capital Treatment
Event as described below), the proceeds from such repayment or payment shall be
simultaneously applied to redeem Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debentures so repaid or
redeemed at a redemption price of $1,000 per Security plus an amount equal to
accrued and unpaid Distributions thereon at the date of the redemption, payable
in cash (the "Redemption Price"). Holders will be given not less than 30 nor
more than 60 days notice of such redemption.]
(b) In the case of an optional redemption, if fewer than all the
outstanding Securities are to be so redeemed, the Common Securities and the
Preferred Securities will be redeemed Pro Rata and the Preferred Securities to
be redeemed will be as described in Section 4(f)(ii) below.
(c) Subject to the prior approval of the Federal Reserve if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve, the Regular Trustees at any time shall have the right to
dissolve the Trust and, after satisfaction of the claims of creditors, cause the
Debentures held by the Institutional Trustee, having an aggregate
<PAGE>
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the Coupon Rate of, and accrued on unpaid interest
equal to accrued and unpaid distributions on, and having the same record date
for payment as the Securities, to be distributed to the Holders of the
Securities in liquidation of such Holders' interests in the trust on a Pro Rata
basis.
(d) If, at any time, a Tax Event or Capital Treatment Event (both as
defined below) shall occur and be continuing, the Debenture Issuer shall have
the right at any time, upon not less than 30 nor more than 60 days notice, to
redeem the Debentures in whole or in part for cash within 90 days following the
occurrence of such Tax Event or Capital Treatment Event, as the case may be,
(or, if the approval of the Federal Reserve Board is then required for such
redemption, on such later date as promptly as practicable after such approval is
obtained), and, following such redemption, Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata
basis.
A "Tax Event" means the receipt by the Trust of an opinion of counsel
to the Sponsor experienced in such matters to the effect that, as a result of
any amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under the Declaration, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
of such opinion, subject to United States federal income tax with respect to
income received or accrued on the Debentures, (ii) interest payable by the
Sponsor on the Debentures is not, or within 90 days of such opinion, will not
be, deductible by the Sponsor, in whole or in part, for United States federal
income tax purposes or (iii) the Trust is, or will be within 90 days of the date
of the opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.
A "Capital Treatment Event" means the reasonable determination by the
Sponsor that, as a result of the occurrence
<PAGE>
of any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the date of issuance of the
Preferred Securities under the Declaration, there is more than an insubstantial
risk that the Sponsor will not be entitled to treat an amount equal to the
liquidation amount of the Preferred Securities as "Tier I Capital" (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Sponsor.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities
will no longer be deemed to be outstanding, (ii) The Depository Trust Company
(the "Depository") or its nominee (or any successor Clearing Agency or its
nominee), as the record Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Debentures to be
delivered upon such distribution and any certificates representing Securities,
except for certificates representing Preferred Securities held by the Depository
or its nominee (or any successor Clearing Agency or its nominee), will be deemed
to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the Coupon Rate of, and accrued and unpaid interest
equal to accrued and unpaid Distributions on such Securities until such
certificates are presented to the Debenture Issuer or its agent for transfer or
reissue.
(e) The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
(f) The procedure with respect to redemptions and distributions of
Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or ex-
<PAGE>
changed not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be
the date fixed for redemption of the Debentures. For purposes of the
calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(f)(i), a Redemption/
Distribution Notice shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings with respect
to any other Holder.
(ii) All notices of redemption shall state:
(a) the redemption date;
(b) the Redemption Price;
(c) the CUSIP number;
(d) if fewer than all the outstanding Securities are to be
redeemed, the identification and the total liquidation amount of the
particular Securities to be redeemed; and
(e) that on the redemption date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date.
(iii) In the event that fewer than all the outstanding Securities are
to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata
from each Holder of Preferred Securities, it being understood that, in
respect of Preferred Securities registered in the name of and held of
record by the Depository or its nominee (or any successor Clearing Agency
or its nominee) or any nominee, the distribution of the proceeds of such
redemption will be made to each Clearing Agency Participant (or Person on
whose behalf such nominee holds such securities) in accordance with the
procedures applied by such agency or nominee.
<PAGE>
(iv) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued if the
Debentures are to be redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) while the Preferred Securities are in book-entry only
form, with respect to the Preferred Securities, by 12:00 noon, New York City
time, on the redemption date, provided that by 10 a.m. New York City time, on
that date the Debenture Issuer has paid the Institutional Trustee or other
holder of the Institutional Trustee Account a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Institutional Trustee or the Paying Agent will deposit irrevocably with the
Depository or its nominee (or successor Clearing Agency or its nominee) funds
sufficient to pay the applicable Redemption Price with respect to the Preferred
Securities and will give the Depository irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Preferred Securities, and (B)
with respect to Preferred Securities issued in definitive form and Common
Securities, provided that the Debenture Issuer has paid the Institutional
Trustee or the holder of the Institutional Trustee Account a sufficient amount
of cash in connection with the related redemption or maturity of the Debentures,
the Institutional Trustee or the Paying Agent will pay the relevant Redemption
Price to the Holders of such Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall have been given and
funds deposited as required, if applicable, then on and after the redemption
date, Distributions will cease to accrue on the Securities so called for
redemption and all rights of Holders of such Securities so called for redemption
will cease, except the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption Price. Neither the
Regular Trustees nor the Trust shall be required to register or cause to be
registered the transfer of (i) any Securities beginning on the opening of
business 15 days before the day of mailing of a notice of redemption and ending
at the close of business on the day of such mailing or (ii) any Securities
selected for redemption except the unredeemed portion of any Security being
redeemed in part. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such date will be
made on the next
<PAGE>
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the
Institutional Trustee or by the Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such Securities will continue to accrue
from the original redemption date to the actual date of payment, in which case
the actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
(v) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred Securities,
the Depository or its nominee (or any successor Clearing Agency or its nominee)
if the Global Certificates have been issued or, if Definitive Preferred Security
Certificates have been issued, to the Holder thereof, and (B) in respect of the
Common Securities to the Holder thereof.
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and banking laws), provided
the acquiror is not the Holder of the Common Securities or the obligor under the
Indenture, the Sponsor or any of its subsidiaries may at any time and from time
to time purchase outstanding Preferred Securities by tender, in the open market
or by private agreement.
(vii) Upon presentation of any Security redeemed in part only, the Regular
Trustee on behalf of the Trust shall execute and the Institutional Trustee shall
authenticate and deliver to the Holder thereof a new Security in aggregate
liquidation amount equal to the unredeemed portion of the Security so presented
and having the same original issue date, stated maturity and terms.
<PAGE>
5. Voting Rights - Preferred Securities.
------------------------------------
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
(b) Subject to the requirements set forth in this paragraph and
Section 2.6(a), the Holders of a majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class may direct the time, method,
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i) exercise the remedies
available under the Indenture to holders of the Debentures, including the right
to direct the time method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section 7.13 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the Debentures where
such consent of the holders of the Debentures would be required, provided,
--------
however, that, where a consent under the Indenture would require the consent or
- -------
act of the Holders of greater than a majority of the Holders in principal amount
of Debentures affected thereby, (a "Super Majority"), the Institutional Trustee
may only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Preferred
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. The Institutional Trustee shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Preferred Securities. Other than with respect to directing the time,
method and place of conducting any remedy available to the Institutional Trustee
or the Debenture Trustee as set forth above, the Institutional Trustee shall not
take any action in accordance with the directions of the Holders of the
Preferred Securities under this paragraph unless the Institutional Trustee has
obtained an opinion of nationally recognized independent tax counsel experienced
in such matters to the effect that for the purposes of United States federal
income tax the Trust will not be classified as other than
<PAGE>
a grantor trust on account of such action. If a Declaration Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder (a "Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Direct Action, the rights of the holders of the Common
Securities Holder will be subrogated to the rights of such holder of Preferred
Securities to the extent of any payment made by the Issuer to such holder of
Preferred Securities in such Direct Action. Except as provided in the preceding
sentences, the Holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Debentures. Any amount
payable pursuant to the Declaration to any Holder of a Preferred Security shall
be reduced by the amount of any corresponding payment such Holder has directly
received pursuant to such Direct Action.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
give, make or take requests, demands, authoriza-
<PAGE>
tions, directions, notices, consents, waivers or other actions under any of the
circumstances described in this Declaration, any of the Preferred Securities
that are owned by the Sponsor or any Affiliate of the Sponsor shall not be
entitled to give, make or take any such action and shall, for purposes of such
action, be treated as if they were not outstanding, except that (a) in
determining whether any Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that a Responsible Officer of such Trustee actually knows to be so
owned shall be so disregarded and (b) the foregoing shall not apply at any time
when all of the outstanding Securities are owned by the Sponsor or any
Affiliate.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Declaration to be given, made or
taken by Holders of Preferred Securities may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.9) conclusive in favor of the Trustees, if
made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Securities shall be proved by the
<PAGE>
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Preferred Security shall bind every future
Holder of the same Preferred Security and the Holder of every Preferred Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Preferred Security.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Preferred Security may do so
with regard to all or any part of the liquidation amount of such Preferred
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such liquidation
amount.
If any dispute shall arise between the Holders of Preferred Securities
and Trustees or among such Holders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee hereunder, then the
determination of such matter by the Institutional Trustee shall be conclusive
with respect to such matter.
6. Voting Rights - Common Securities.
---------------------------------
(a) Except as provided under Sections 6(b), (c), 7(a) and (b), or as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after the Event
of Default with respect to the Preferred Securities has been cured, waived, or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any
<PAGE>
remedy available to the Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under the Declaration, including (i)
directing the time, method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section 7.13 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the Debentures where
such consent of the holders of the Debentures would be required, provided that,
-------- ----
where a consent or action under the Indenture would require the consent or act
of the Holders of a Super Majority, the Institutional Trustee may only give such
consent or take such action at the written direction of the Holders of at least
the proportion in liquidation amount of the Common Securities which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding. Pursuant to this Section 6(c), the Institutional Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Preferred Securities. Other than with respect to directing the time, method
and place of conducting any remedy available to the Institutional Trustee or the
Debenture Trustee as set forth above, the Institutional Trustee shall not take
any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Institutional Trustee has obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may institute a legal proceeding
directly against any Person to enforce the Institutional Trustee's rights under
the Declaration, without first instituting a legal proceeding against the
Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common
<PAGE>
Securities. Each such notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Declaration to be given, made or
taken by Holders of Common Securities may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders or in
person or by an agent duly appointed in writing, and except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Institutional Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 3.9) conclusive in favor of the Trustees, if
made in the manner provided herein.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Securities shall be proved by the Securities
Register.
<PAGE>
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Common Security shall bind every future Holder
of the same Common Security and the Holder of every Common Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustees or
the Trust in reliance thereon, whether or not notation of such action is made
upon Common Security.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Common Security may do so
with regard to all or any part of the liquidation amount of such Common Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders of Common Securities
and the Trustees or among such Holders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Trustee hereunder,
then the determination of such matter by the Institutional Trustee shall be
conclusive with respect to such matter.
7. Amendments to Declaration and Indenture.
---------------------------------------
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, privileges, preferences or special rights of the
Securities, whether by way of amendment to the Declaration or otherwise, or (ii)
the dissolution, winding-up or termination of the Trust, other than as described
in Section 8.1 of the Declaration, then the Holders of Securities voting
together as a single class, will be entitled to vote on such amendment or
proposal (but not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a Majority in liquidation amount of the Securities, affected thereby;
provided, however, that if any amendment or proposal referred to in clause (i)
- -------- -------
above would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
<PAGE>
except with the approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
-------- -------
the consent of the holders of a Super Majority, the Institutional Trustee may
only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Institutional Trustee shall not take
-------- -------
any action in accordance with the directions of the Holders of the Securities
under this Section 7(b) unless the Institutional Trustee has obtained an opinion
of nationally recognized independent tax counsel experienced in such matters to
the effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such action.
<PAGE>
8. Pro Rata.
--------
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding. In any such
proration the Trust may make such adjustments as may be appropriate in order
that only Securities in authorized denominations shall be redeemed.
9. Ranking.
-------
The Preferred Securities rank pari passu with the Common Securities
---- -----
and payment thereon shall be made Pro Rata with the Common Securities except
that, if an Event of Default under the Declaration occurs and is continuing the
rights of Holders of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the Preferred
Securities.
10. Acceptance of Securities Guarantee and Indenture.
------------------------------------------------
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights.
--------------------
The Holders of the Securities shall have no preemptive
<PAGE>
rights to subscribe for any additional securities.
12. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[This Preferred Security is a Global Certificate within the meaning of
the Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]/1/
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
BANK ONE CAPITAL [I]
<PAGE>
[Floating Rate][ %] Preferred Securities
(liquidation amount [$1,000] per Preferred Security)
BANK ONE CAPITAL [I], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that ______________
(the "Holder") is the registered owner of ____________ preferred securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the [Floating Rate][ %] Preferred Securities (liquidation amount
[$1,000] per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of [date], as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of .
BANK ONE CAPITAL [I]
By:________________________________
Name: Robert A. Rosholt
Title: Regular Trustee
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Declaration.
Dated:
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By:________________________
Authorized Officer
<PAGE>
[FORM OF REVERSE OF SECURITY]
Each Preferred Security will be entitled to receive cumulative
distributions at the Distribution Rate applied to the stated liquidation amount
of [$1,000] per Preferred Security. Distributions in arrears for more than one
quarter will bear interest thereon compounded [quarterly] at the Distribution
Rate (to the extent permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available therefor. The
Distribution Amount payable for each Distribution Period will be calculated as
provided in the Declaration.
Except as otherwise described below, distributions on the Preferred
Securities will be cumulative, will accrue from [date] and will be payable
[quarterly/monthly/semiannually] in arrears, on [dates] of each year, commencing
on [date] to the Holders thereof as they appear on the books and records of the
Trust on the relevant record dates. While the Preferred Securities remain in
book-entry only form, the relevant record dates shall be one Business Day prior
to the relevant payment dates. If the Preferred Securities shall not continue to
remain in book-entry only form, the relevant record dates for the Preferred
Securities shall be [dates], as the case may be. The Debenture Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding [20] consecutive quarters (each an "Extension Period"), provided that
-------- ----
no Extension Period shall end on a day other than an interest payment date for
the Debentures or shall extend beyond the date of the maturity of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the
Distribution Rate compounded quarterly during any such Extension Period. At the
end of the Extension Period, all accrued and unpaid Distributions (but only to
the extent payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor) will be payable to the Holders of the Securities in whose
names the Securities are registered in the Security Register on the record date
relating to the Distribution Date on which the Extension Period ends. Prior to
the termination of any such Extension Period, the Debenture Issuer may further
defer payments of interest by further extending such Extension Period; provided
--------
that such Extension Period together with all such previous and further
- ----
<PAGE>
extensions thereof may not exceed [20] consecutive quarters or extend beyond the
maturity date of the Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Regular Trustees shall have the right at any time to
liquidate the Trust and cause the Debentures to be distributed to the holders of
the Securities in liquidation of the Trust.
The Preferred Securities shall be redeemable as provided in the
Declaration.
<PAGE>
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________________ agent
to transfer this Preferred Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee**: ___________________________________
____________________
** Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program
<PAGE>
________________________________________________________________________________
("STAMP") or such other "signature guarantee program" as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of 1934, as amended.
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
BANK ONE CAPITAL [I]
[Floating Rate][ %] Common Securities
(liquidation amount [$1,000] per Common Security)
BANK ONE CAPITAL [I], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that BANK ONE
Corporation (the "Holder") is the registered owner of _______________ common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the [Floating Rate] [ %] Common Securities
(liquidation amount [$1,000] per Common Security) (the "Common Securities"). The
Common Securities are not transferable. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of [date], as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Securities
as set forth in Annex I to the Declaration. Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Common Securities Guarantee to the extent
provided therein. The Sponsor will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture to a Holder without charge upon written
request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
<PAGE>
THIS SECURITY IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
____________, .
BANK ONE CAPITAL [I]
By:________________________________
Name: Robert A. Rosholt
Title: Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Declaration.
Dated:
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By:________________________
Authorized Officer
<PAGE>
[FORM OF REVERSE OF SECURITY]
Each Common Security will be entitled to receive cumulative
distributions at the Distribution Rate applied to the stated liquidation amount
of [$1,000] per Common Security. Distributions in arrears for more than one
quarter will bear interest thereon compounded [quarterly] at the Distribution
Rate (to the extent permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available therefor. The
Distribution Amount payable for each Distribution Period will be calculated as
provided in the Declaration.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from [date] and will be payable
[quarterly/monthly/semiannually] in arrears, on [dates] of each year, commencing
on [date], to Holders of record on [dates], as the case may be. The Debenture
Issuer has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding [20] consecutive quarters (each an "Extension Period"),
provided that no Extension Period shall end on a day other than an interest
- -------- ----
payment date for the Debentures or shall extend beyond the date of the maturity
of the Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the
Distribution Rate compounded quarterly during any such Extension Period. At the
end of the Extension Period, all accrued and unpaid Distributions (but only to
the extent payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor) will be payable to the Holders of the Securities in whose
names the Securities are registered in the Security Register on the record date
relating to the Distribution Date on which the Extension Period ends. Prior to
the termination of any such Extension Period, the Debenture Issuer may further
defer payments of interest by further extending such Extension Period; provided
--------
that such Extension Period together with all such previous and further
- ----
extensions thereof may not exceed [20] consecutive quarters or extend beyond the
maturity date of the Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
<PAGE>
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Regular Trustees shall have the right at any time to
liquidate the Trust and cause the Debentures to be distributed to the holders of
the Securities in liquidation of the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
<PAGE>
EXHIBIT C
UNDERWRITING AGREEMENT
/1.../ Insert in Global Certificates only.
<PAGE>
Exhibit 4.21
SECOND SUPPLEMENTAL INDENTURE, dated as of October 2, 1998, between BANK ONE
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware ("ONE"), having its principal offices at One First National
Plaza, Chicago, Illinois 60670, and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of the State of New York,
as trustee (the "Trustee").
WHEREAS, First Chicago NBD Corporation ("FCNBD") has heretofore executed
and delivered to the Trustee an Indenture, dated as of January 1, 1997 (the
"Original Indenture"), as supplemented by a First Supplemental Indenture, dated
as of January 31, 1997 (the "First Supplemental Indenture") (as so supplemented,
the Original Indenture is referred to herein as the "Indenture"), providing for
the issuance from time to time of unsecured debt securities (herein and therein
called the "Securities"); and
WHEREAS, effective as of October 2, 1998, FCNBD merged with and into ONE;
and
WHEREAS, Section 10.01 of the Indenture provides for the execution of an
indenture supplemental to the Indenture, in form satisfactory to the Trustee, to
evidence the succession of any successor corporation to FCNBD under the
Indenture and the assumption of such successor corporation of the covenants of
FCNBD in the Indenture and in the Securities pursuant to such Indenture; and
WHEREAS, all things necessary to make this Second Supplemental Indenture a
valid agreement of ONE as the successor corporation to FCNBD, under the
Indenture, in accordance with its terms, have been done.
NOW, THEREFORE, ONE and the Trustee hereby agree as follows:
1. From and after the date of this Second Supplemental Indenture, ONE
shall for all purposes be deemed to be the "Company", as such term is defined in
the Indenture and the
<PAGE>
Securities, and, as such, ONE hereby expressly assumes, from and after the date
of this Second Supplemental Indenture, the due and punctual payment of the
principal of, premium, if any, and interest (including all additional amounts,
if any, payable pursuant to Section 5.04 of the Indenture) on all of the
Securities and the performance of every covenant of the Indenture, as
supplemented by this Second Supplemental Indenture, on the part of the Company
to be performed or observed.
2. All provisions of this Second Supplemental Indenture shall be deemed to
be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented by the First Supplemental Indenture and this Second Supplemental
Indenture, shall be read, taken and construed as one and the same instrument.
3. The Trustee accepts the trusts created by the Indenture, as
supplemented by the First Supplemental Indenture and this Second Supplemental
Indenture, and agrees to perform the same upon the terms and conditions in the
Indenture, as supplemented by the First Supplemental Indenture and this Second
Supplemental Indenture.
4. The recitals contained in this Second Supplemental Indenture shall be
taken as statements of ONE, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
5. All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
6. This Second Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of New York.
7. This Second Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused the Second
Supplemental Indenture to be duly executed, and their respective seals to be
hereunto affixed and attested, all as of the date first above written.
ATTEST: BANK ONE CORPORATION
____________________________ By:_____________________________
Title: Assistant Secretary Title: Chief Financial Officer
[Corporate Seal]
ATTEST: THE CHASE MANHATTAN BANK,
as Trustee,
___________________________ By:___________________________
Title:_____________________ Title:________________________
[Corporate Seal]
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On the 2nd day of October, 1998, before me personally came Robert A.
Rosholt, to me known, who, being duly sworn, did depose and say that he is the
Chief Financial Officer of BANK ONE CORPORATION one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
__________________________
Notary Public
My Commission Expires: ______________________________
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the ______ day of _______________________ before me personally came
____________________________, to me known, who, being duly sworn, did depose and
say that he is a ___________________________________ _______________________ of
The Chase Manhattan Bank, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
____________________________
Notary Public
My Commission Expires: ___________________________
<PAGE>
____________________________________________
Exhibit 4.22
[THIRD] SUPPLEMENTAL INDENTURE
between
BANK ONE CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of [DATE]
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.................................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount....................... 3
SECTION 2.2. Maturity............................................... 3
SECTION 2.3. Form and Payment....................................... 3
SECTION 2.4. Global Debenture....................................... 4
SECTION 2.5. Interest............................................... 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption........ 8
SECTION 3.2. Optional Redemption by Company......................... 9
SECTION 3.3. No Sinking Fund........................................ 9
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period................... 9
SECTION 4.2. Notice of Extension.................................... 10
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.................................... 11
SECTION 5.2. Payment Upon Resignation or Removal.................... 11
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture...................................... 12
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures........................... 20
<PAGE>
Page
----
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.............................. 20
SECTION 8.2. Trustee Not Responsible for Recitals................... 21
SECTION 8.3. Governing Law.......................................... 21
SECTION 8.4. Separability........................................... 21
SECTION 8.5. Counterparts........................................... 22
<PAGE>
[THIRD] SUPPLEMENTAL INDENTURE, dated as of [DATE] (the "[THIRD]
Supplemental Indenture"), between BANK ONE CORPORATION, a Delaware corporation
(the "Company"), and The Chase Manhattan Bank, as trustee (the "Trustee"), under
the Indenture dated as of January 1, 1997 between the Company and the Trustee
(the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its [Floating Rate][ %] Junior Subordinated Deferrable Interest Debentures
due [DATE] (the "Debentures"), the form and substance of such Debentures and the
terms, provisions and conditions thereof to be set forth as provided in the
Indenture and this [THIRD] Supplemental Indenture;
WHEREAS, BANK ONE Capital [I], a Delaware statutory business trust
(the "Trust"), has offered to the public [$ ] aggregate liquidation
amount of its [Floating Rate][ %] Preferred Securities (the "Preferred
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of [$ ]
aggregate liquidation amount of its [Floating Rate][ %] Common Securities, in
[$ ] aggregate principal amount of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this [THIRD] Supplemental Indenture pursuant to Sections 3.01 and 9.01
of the Indenture and all requirements necessary to make this [THIRD]
Supplemental Indenture a valid instrument in accordance with its terms, and to
make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this [THIRD] Supplemental Indenture
has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this [THIRD] Supplemental Indenture;
(b) a term defined anywhere in this [THIRD] Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this [THIRD] Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Treatment Event; (iii) Clearing
Agency; (iv) Delaware Trustee; (v) Institutional Trustee; (vi) Institutional
Trustee Account; (vii) Preferred Security Certificate; (viii) Regular Trustees;
(ix) Tax Event; and (x) Underwriting Agreement;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Sums" shall have the meaning set forth in Section 2.5.
---------------
"Compounded Interest" shall have the meaning set forth in Section 4.1.
-------------------
"Declaration" means the Amended and Restated Declaration of Trust of
-----------
BANK ONE Capital [I], a Delaware statutory business trust, dated as of [date].
"Deferred Interest" shall have the meaning set forth in Section 4.1.
-----------------
<PAGE>
"Depositary", with respect to the Debentures, means The Depository
----------
Trust Company or such other successor Clearing Agency for the Preferred
Securities.
"Dissolution Event" means the liquidation of the Trust by the Regular
-----------------
Trustees in accordance with the Declaration, and the distribution of the
Debentures held by the Institutional Trustee to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Declaration.
--- ----
"Global Debenture" shall have the meaning set forth in Section 2.4.
----------------
"Maturity Date" shall mean [date].
-------------
"Non Book-Entry Preferred Securities" shall have the meaning set forth
-----------------------------------
in Section 2.4.
"Redemption Price" shall mean, with respect to any redemption of the
----------------
Debentures pursuant to Article III hereof, an amount in cash equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest
thereon, including Compounded Interest and Additional Sums, if any, to the date
of such redemption.
"Trust Securities" shall mean the Preferred Securities and the Common
----------------
Securities, collectively.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Securities designated the
"[Floating Rate][ %] Junior Subordinated Deferrable Interest Debentures due
[date]", limited in aggregate principal amount to [$ ], which amount
shall be as set forth in any written order of the Company for the authentication
and delivery of Debentures pursuant to Section 3.03 of the Indenture.
<PAGE>
SECTION 2.2. Maturity.
--------
The Maturity Date (which shall constitute the Stated Maturity of the
Debentures for purposes of the Indenture) shall be the date on which the
Debentures mature and on which the principal thereof shall be due and payable
together with all accrued and unpaid interest thereon (including Compounded
Interest and Additional Sums, if any).
SECTION 2.3. Form and Payment.
----------------
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons in minimum
denominations of [$1,000] and in integral multiples thereof. Principal and
interest on the Debentures issued in certificated form will be payable, the
transfer of such Debentures will be registrable and such Debentures will be
exchangeable for Debentures bearing identical terms and provisions at the office
or agency of the Company as set forth in the last sentence of Section 5.02 of
the Indenture; provided, however, that payment of interest may be made, at the
-------- -------
option of the Company, by check mailed to the Holder at such address as shall
appear in the Security Register or by wire transfer to an account designated by
a Holder in writing not less than ten days prior to the date of payment. The
Company selects each of the City of New York, New York and the City of Chicago,
Illinois as a Place of Payment for the Debentures and hereby appoints The First
National Bank of Chicago as Securities Registrar for the Debentures.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Institutional Trustee, the payment of the principal of and interest (including
Compounded Interest and Additional Sums, if any) on such Debentures held by the
Institutional Trustee will be made at such place and to such account as may be
designated by the Institutional Trustee.
SECTION 2.4. Global Debenture.
----------------
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in
an aggregate principal amount equal to the aggregate principal amount of
all outstanding Debentures (a "Global Debenture"), to be registered in the
name of the Depositary, or its nominee, and delivered
<PAGE>
by the Trustee to or upon the order of the Depositary for crediting to the
accounts of its participants pursuant to the instructions of the Regular
Trustees. The Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture
and this [THIRD] Supplemental Indenture. Payments on the Debentures issued
as a Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to
the Trustee by the Institutional Trustee and any Preferred Security
Certificate which represents Preferred Securities other than Preferred
Securities held by the Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent beneficial interests in
Debentures presented to the Trustee by the Institutional Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Preferred Securities until such Preferred Security
Certificates are presented to the Security Registrar for transfer or
reissuance at which time such Preferred Security Certificates will be
cancelled and a Debenture, registered in the name of the holder of the
Preferred Security Certificate or the transferee of the holder of such
Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security Certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this [THIRD] Supplemental Indenture. Upon the issuance
of such Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Institutional Trustee to the Trustee will
be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in part,
only to another nominee of the Depositary, or to a successor Depositary selected
or approved by the Company or to a nominee of such successor Depositary.
<PAGE>
SECTION 2.5. Interest.
--------
(a) Each Debenture will bear interest at the Interest Rate (as
defined below) from [date] until the principal thereof becomes due and payable,
and on any overdue principal at the Interest Rate and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the Interest Rate, compounded
[quarterly/monthly/seminannually], payable (subject to the provisions of Article
Four) [quarterly/montlhly/semiannually] in arrears on [dates] of each year
commencing on [date], to the Person in whose name such Debenture or any
predecessor Debenture is registered, at the close of business on the regular
record date for such interest installment, which, in respect of any Debentures
of which the Institutional Trustee is the Holder or in the case of a Global
Debenture, shall be the close of business on the Business Day next preceding
that Interest Payment Date (as defined below). Notwithstanding the foregoing
sentence, if the Debentures are no longer in book-entry only form, except if the
Debentures are held by the Institutional Trustee, the regular record dates shall
be the [dates] prior to the applicable Interest Payment Date.
(b) The Interest Rate in respect of the Debentures will be [ % per
annum based on a year of twelve thirty day months] [a floating rate per annum
determined by reference to 3-Month LIBOR, determined as described below, plus a
margin of 0. %. "3-Month LIBOR" means the London interbank offered rate for
three month U.S. dollar deposits and with respect to any Interest Period will be
calculated by The First National Bank of Chicago, as calculation agent (the
"Calculation Agent"), as follows:
(i) On the THIRD Market Day (as defined below) preceding the
commencement of such Interest Period (each, a "Determination Date"), 3-
Month LIBOR will be determined on the basis of the offered rate for
deposits of not less than U.S. $1,000,000 for a period of three months (the
"Index Maturity"), commencing on the THIRD Market Day immediately preceding
the commencement of such Interest Period, which appears on the display
designated as Page 3750 on the Dow Jones Telerate Service (or such other
pages as may replace Page 3750 on that service for the purpose of
displaying London interbank offered rates of major banks) ("Telerate Page
3750") as of 11:00 a.m., London time on said Determination Date. If no
such offered rate appears, 3-Month LIBOR with respect to such Interest
Period will be determined as
<PAGE>
described in (ii) below.
(ii) With respect to a Determination Date on which no such offered
rate appears on Telerate Page 3750 as described in (i) above, 3-Month LIBOR
shall be the arithmetic mean, expressed as a percentage, of the offered
rates (unless by its terms such display provides for only a single rate, in
which case a single rate shall be used) for deposits in U.S. dollars for
the Index Maturity which appears on the display designated as "LIBO" on the
Reuters Monitor Money Market Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks) ("Reuters Screen LIBO Page") as of
11:00 a.m., London time, on such date. If, in turn, at least two such
rates are not displayed on the Reuters Screen LIBO Page at such time
(unless, as aforesaid, only a single rate is required), the Calculation
Agent will obtain from each of four reference banks in London selected by
the Calculation Agent ("Reference Banks") such bank's offered quotation
(expressed as a percentage per annum) as of approximately 11:00 a.m.,
London time, on such date for deposits in U.S. dollars to prime banks in
the London interbank market for the Index Maturity. If two or more such
quotations are provided as requested, then 3-Month LIBOR for such date
shall be the arithmetic average of such quotations. If, in turn, fewer
than two such quotations are provided as requested, then 3-Month LIBOR for
such date will be obtained from the preceding Market Day for which the
Reuters Screen LIBO Page displayed a rate for the Index Maturity.
(iii) If on any Determination Date, the Calculation Agent is required
but unable to determine 3-Month LIBOR in the manner provided in paragraphs
(a) and (b) above, 3-Month LIBOR for such Interest Period shall be 3-Month
LIBOR as determined on the previous Determination Date.
The term "Market Day" means any Business Day on which commercial banks
and foreign exchange markets are open for business (including dealings in
foreign exchange and foreign currency deposits) in New York and London.]
The term "Interest Period" means each period beginning on, and
including, [date], and ending on, but excluding, the first Interest Payment
Date, and each successive period beginning on, and including, an Interest
Payment Date and ending on, but excluding, the next succeeding Interest Payment
Date.
<PAGE>
The Interest Rate for any Interest Period will at no time be higher
than the maximum rate then permitted by New York law as the same may be modified
by United States law.
All percentages resulting from any calculations referred to in this
[THIRD] Supplemental Indenture will be rounded, if necessary, to the nearest
multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from
such calculations will be rounded to the nearest cent (with one-half cent or
more being rounded upwards).
[(c) The Calculation Agent shall, as soon as practicable after 11:00
a.m., London time, on each Determination Date, determine the Interest Rate and
inform the Trustee and the Paying Agent and, if any Debentures are held by the
Institutional Trustee, the Institutional Trustee. Unless otherwise provided by
the Trustee, the Paying Agent will calculate the amount of interest payable on
the Debentures in respect of the following Interest Period. The amount of
interest payable for any Interest Period will be computed on the basis of the
actual number of days in the applicable Interest Period divided by 360 and
rounding the resultant figure to the nearest cent (with one-half cent or more
being rounded upwards). ] The determination of the Interest Rate by the
Calculation Agent and the amount of interest payable by Paying Agent will (in
the absence of wilful default, bad faith or manifest error) be final, conclusive
and binding on all concerned. None of the Trustee, the Paying Agent, the
Calculation Agent, the Trust or the Company (or any of their respective
officers, directors, agents, beneficiaries, employees or affiliates) shall have
any liability to any person for (i) the selection of any Reference Bank or (ii)
any inability to retain major banks in the London interbank market, in the case
of the Calculation Agent, which is caused by circumstances beyond its reasonable
control.
(d) All certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and calculation of
interest on the Debentures, whether by the Reference Banks (or any of them) or
the Calculation Agent, Trustee or Paying Agent, will (in the absence of wilful
default, bad faith or manifest error) be binding on the Trust, the Company, the
Trustee and all of the holders of the Debentures, and no liability will (in the
absence of wilful default, bad faith or manifest error) attach to the
Calculation Agent, Trustee or Paying Agent in connection with the exercise or
<PAGE>
non-exercise by any of them of their powers, duties and discretion.
(e) In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date (each date on which interest is actually
payable, an "Interest Payment Date").
(f) If a Tax Event has occurred and is continuing while the
Institutional Trustee is the Holder of any Debentures, and the Trust or the
Institutional Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then, in any case, the
Company will pay such additional sums ("Additional Sums") on the Debentures held
by the Institutional Trustee, as shall be required so that the net amounts
received and retained by the Trust and the Institutional Trustee after paying
such taxes, duties, assessments or other governmental charges will be equal to
the amounts the Trust and the Institutional Trustee would have received had the
Trust and the Institutional Trustee not been subject to such taxes, duties,
assessments or other government charges as a result of such Tax Event. The
payment of such Additional Sums will be subject to the provisions of Section
5.04 of the Indenture.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event or Capital Treatment Event Redemption.
-----------------------------------------------
If a Tax Event or a Capital Treatment Event has occurred and is
continuing then, notwithstanding Section 3.2(a) but subject to Section 3.2(c),
the Company shall have the right upon not less than 30 days nor more than 60
days notice to the Holders of the Debentures to redeem the Debentures, in whole,
but not in part, for cash within 90 days following the occurrence of such Tax
Event or Capital Treatment Event (or, if the approval of the Federal Reserve
Board is then required for such redemption, on such later date as promptly
practicable after such approval is obtained), (the "90 Day Period") at the
Redemption Price.
<PAGE>
SECTION 3.2. Optional Redemption by Company.
------------------------------
(a) Subject to the provisions of Section 3.2(b) and to the provisions
of Article Four of the Indenture, except as otherwise may be specified in this
[THIRD] Supplemental Indenture, the Company shall have the right to redeem the
Debentures, in whole or in part, from time to time, on or after [date], at the
Redemption Price. Any redemption pursuant to this paragraph will be made upon
not less than 30 days nor more than 60 days notice to the Holders of the
Debentures. If the Debentures are only partially redeemed pursuant to this
Section 3.2, the Debentures will be redeemed pro rata or by lot or by any other
--- ----
method utilized by the Securities Registrar; provided, that if at the time of
--------
redemption the Debentures are registered as a Global Debenture, the Depositary
shall determine, in accordance with its procedures, the principal amount of such
Debentures beneficially held by each Holder of Debentures to be redeemed.
(b) If a partial redemption of the Debentures would result in the
delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
then listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
(c) Any redemption of Debentures pursuant to Section 3.1 or Section
3.2 shall be subject to the Company obtaining the prior approval of the Federal
Reserve, if such approval is then required under applicable law, rules,
guidelines or policies of the Federal Reserve.
SECTION 3.3. No Sinking Fund.
---------------
The Debentures are not entitled to the benefit of any sinking fund.
<PAGE>
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
------------------------------------
Subject to Section 3.13 of the Indenture, the Company shall have the
right, at any time and from time to time during the term of the Debentures, to
defer payments of interest by extending the interest payment period of such
Debentures for an Extension Period not exceeding [20] consecutive quarters,
during which Extension Period no interest shall be due and payable; provided
--------
that no Extension Period may end on a date other than an Interest Payment Date
- ----
or extend beyond the Maturity Date. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 4.1, will bear interest thereon
at the Interest Rate compounded quarterly for each quarter of the Extension
Period ("Compounded Interest"). At the end of the Extension Period, the Company
shall pay all interest accrued and unpaid on the Debentures, including any
Additional Sums and Compounded Interest (together, "Deferred Interest") that
shall be payable to the Holders of the Debentures in whose names the Debentures
are registered in the Security Register on the record date relating to the
Interest Payment Date on which the Extension Period ends. Before the
termination of any Extension Period, the Company may further defer payments of
interest by further extending such period, provided that such period, together
--------
with all such further extensions thereof, shall not exceed 20 consecutive
quarters, or extend beyond the Maturity Date of the Debentures. Upon the
termination of any Extension Period and the payment of all Deferred Interest
then due, the Company may commence a new Extension Period, subject to the
foregoing requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof.
SECTION 4.2. Notice of Extension.
-------------------
(a) If the Institutional Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Regular Trustees, the Institutional Trustee and
the Trustee of its selection of such Extension Period at least one Business Day
before the earlier of (i) the next succeeding date on which Distributions on the
Trust Securities issued by the Trust are payable, or (ii) the date the Trust is
required to give notice of
<PAGE>
the record date, or the date such Distributions are payable, to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Preferred Securities issued by the Trust, but in any event at least one
Business Day before such record date.
(b) If the Institutional Trustee is not the only Holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to Holders of the
Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extension Period permitted under Section 4.1.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
-------------------
In connection with the offering, sale and issuance of the Debentures
to the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 8.07 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping
<PAGE>
services, expenses for printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of Trust
assets);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
Section 5.2. Payment Upon Resignation or Removal.
-----------------------------------
Upon termination of this [THIRD] Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee, unless otherwise stated,
the Company shall pay to the Trustee all amounts accrued under Section 8.07 of
the Indenture to the date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of the Delaware
Trustee or the Institutional Trustee, as the case may be, pursuant to Sections
10.4 and 10.6 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts accrued under said
Sections to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture.
-----------------
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures registered in the name of a person
<PAGE>
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
No._____________________ CUSIP No.
<PAGE>
BANK ONE CORPORATION
[FLOATING RATE] [ %] JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
DUE [date]
BANK ONE CORPORATION, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ______________ or registered
assigns, the principal sum of _____________ Dollars ($___________) on
[date] and to pay interest on said principal sum from [date], or from the most
recent interest payment date to which interest has been paid or duly provided
for, [quarterly/monthly/semiannually] (subject to deferral as set forth herein)
in arrears on [dates] of each year commencing [date], at the Interest Rate (as
defined in the Indenture) until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, at the Interest Rate
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Interest Rate compounded quarterly. The amount of interest payable on any
Interest Payment Date (as defined below) shall be calculated as provided in the
Indenture. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date (each date on which interest is actually
payable, an "Interest Payment Date"). The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Debenture
(or one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the regular record date for such interest
installment, which shall be the close of business on the first business day next
preceding such Interest Payment Date. [IF PURSUANT TO THE PROVISIONS OF THE
INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A GLOBAL DEBENTURE, which
shall be, except if the Debentures are held by the Institutional Trustee, the
close of business on the [dates] next preceding such Interest Payment Date, as
applicable.] Any such interest installment not punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holders on such
regular
<PAGE>
record date and may be paid to the Person in whose name this Debenture (or one
or more Predecessor Securities) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of Debentures
not less than 10 days prior to such special record date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. The principal of (and premium, if any) and the interest on this
Debenture shall be payable at the office or agency of the Trustee maintained for
that purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made, at the option of the
- -------- -------
Company, by check mailed to the registered Holder at such address as shall
appear in the Security Register or by wire transfer to an account designated by
a Holder in writing not less than ten days prior to the date of payment.
Notwithstanding the foregoing, so long as the Holder of this Debenture is the
Institutional Trustee, the payment of the principal of (and premium, if any) and
interest on this Debenture will be made at such place and to such account as may
be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and General Obligations, and
this Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness and creditor in respect of General
Obligations, whether now outstanding or hereafter incurred, and waives reliance
by each such holder or creditor upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory for any
purpose until the Certificate of Authentication
<PAGE>
hereon shall have been signed by or on behalf of the Trustee.
THIS DEBENTURE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION
OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
BANK ONE CORPORATION
By:_______________________________
Name:
Title: Chairman of the Board
Attest:
By:_________________________
Name:
Title: Secretary or Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By__________________________
Authorized Officer
Dated_______________________
<PAGE>
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of securities of the
Company (herein sometimes referred to as the "Securities"), all issued or to be
issued in one or more series under and pursuant to an Indenture dated as of
January 1, 1997, duly executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), as supplemented by the [THIRD]
Supplemental Indenture dated as of [date], between the Company and the Trustee
(the Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities. By the terms of
the Indenture, the Securities are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This Security is one of the series designated on the face hereof (the
"Debentures") and is limited in aggregate principal amount as specified in said
[THIRD] Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event or Capital
Treatment Event, the Company shall have the right, subject to certain conditions
set forth in the Indenture, to redeem this Debenture in whole, but not in part,
at the Redemption Price within 90 days following the occurrence of such Tax
Event or Capital Treatment Event (or, if the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve") is then
required, on such later date as promptly as practicable after such approval is
obtained). In addition, the Company shall have the right to redeem this
Debenture, in whole or in part, at any time on or after [date], at the
Redemption Price (any of the foregoing redemptions an "Optional Redemption").
[The "Redemption Price" means an amount in cash equal to 100% of the principal
amount together with any accrued and unpaid interest thereon, including
Additional Sums and Compounded Interest, if any, to the date of such
redemption.] Any redemption pursuant to this paragraph will be made upon not
less than 30 days nor more than 60 days notice. If the Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
--- ----
by the Securities Registrar; provided that if, at the time of redemption, the
Debentures are registered as a Global Debenture, the Depositary shall determine
the principal amount of such Debentures beneficially held by each
Debentureholder to be redeemed in accord-
<PAGE>
ance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any redemption of Debentures by the
Company shall be subject to the prior approval of the Federal Reserve, if such
approval is then required under applicable law, rules, guidelines or policies of
the Federal Reserve.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series affected
(acting as one class), to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities; provided, however, that
no such supplemental indenture shall (i) change the Maturity of the principal
of, or the Stated Maturity of any installment of interest (or premium, if any)
on, any Security, or reduce the principal amount thereof or any premium thereon
or the rate of interest thereon, or change the obligations of the Company to pay
additional amounts pursuant to Section 5.04 of the Indenture, or to reduce the
amount of principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof, or change
the method of calculating interest thereon or the coin or currency in which any
Security (or premium, if any, thereon) or the interest thereon is payable, or
reduce the minimum rate of interest thereon, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date); or (ii) reduce the percentage in principal amount of
the Outstanding Securities of any series, the Holders of which are required to
consent to any such supplemental indenture or to waive certain defaults
<PAGE>
thereunder and their consequences provided for in the Indenture or to reduce the
requirements of the Indenture for a quorum at meetings of Holders of Securities;
or (iii) change the obligations of the Company to maintain certain offices or
agencies as required by the Indenture; or (iv) modify any of the provisions of
the Indenture relating to supplemental indentures or the waiver of defaults,
except to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived, without the consent of
the Holders of each Security then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series affected
thereby, on behalf of all of the Holders of the Securities of such series, to
waive any past default in the performance of any of the covenants contained in
the Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of, premium, if any, or interest on any of the Securities of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange therefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for up to 20 consecutive quarters (an
"Extension Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the Interest
Rate to the extent that payment of such interest is enforceable under applicable
law); provided that no Extension Period may end on a day other than an Interest
-------- ----
Payment Date or last beyond the Maturity Date of the Debentures. Before the
termination of any such Extension Period, the Company may further
<PAGE>
extend such Extension Period, provided that such Extension Period together with
all such further extensions thereof shall not exceed 20 consecutive quarters or
extend beyond the Maturity Date of the Debentures. Upon the termination of any
such Extension Period and the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may commence a new Extension Period,
subject to the foregoing requirements.
During any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu in all respects with or junior in interest
to the Debentures or make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any Subsidiary of the Company that by
their terms rank pari passu in all respects with or junior in interest to the
Debentures (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock of any class or series of preferred stock
of the Company under any Rights Plan or the repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any FCN Guarantee which is for the
benefit of the holders of Preferred Securities or Common Securities issued by
the Trust, (d) purchases of Common Stock related to the issuance of Common Stock
under any of the Company's benefit plans for its directors, officers or
employees and (e) obligations under any dividend reinvestment and stock purchase
plan).
Subject to the prior approval of the Federal Reserve if such approval
is then required under applicable law, rules, guidelines or policies of the
Federal Reserve, the Company will have the right at any time to liquidate the
Trust and cause the Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
and State of New York or the City of Chicago, Illinois accompanied by a written
instrument or instruments of transfer in form satis-
<PAGE>
factory to the Company and the Securities Registrar duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the registered holder hereof as the owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and (subject to Section 3.07 of the Indenture) interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[The Debentures are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.] [This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Debentures so issued are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof.] As provided in the Indenture and subject to
certain limitations herein and therein set forth, Debentures of this series [so
issued] are exchangeable for a like aggregate principal amount of Debentures of
a different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Debenture that are defined in
<PAGE>
the Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures.
----------------------------
Debentures in the aggregate principal amount of [$ ] may, upon
execution of this [THIRD] Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication as provided in Sections 3.01 and
3.03 of the Indenture.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this [THIRD] Supplemental Indenture,
is in all respects ratified and confirmed, and this [THIRD] Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 8.2. Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
[THIRD] Supplemental Indenture.
SECTION 8.3. Governing Law.
-------------
This [THIRD] Supplemental Indenture and each Debenture shall be
construed in accordance with and governed by the laws of the State of New York.
SECTION 8.4. Separability.
------------
<PAGE>
In case any one or more of the provisions contained in this [THIRD]
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this [THIRD]
Supplemental Indenture or of the Debentures, but this [THIRD] Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 8.5. Counterparts.
------------
This [THIRD] Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this [THIRD]
Supplemental Indenture to be duly executed and attested, as of the day and year
first above written.
BANK ONE CORPORATION
By____________________________
Name: M. Eileen Kennedy
Title: Treasurer
Attest:
By:___________________
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Trustee
By____________________________
Name:
Title:
Attest:
By:___________________
<PAGE>
================================================================================
Exhibit 4.25
PREFERRED SECURITIES GUARANTEE AGREEMENT
BANK ONE Capital [I]
Dated as of [date]
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation......................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application....................... 5
SECTION 2.2 Lists of Holders of Securities......................... 6
SECTION 2.3 Reports by the Preferred Guarantee Trustee............. 6
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee........ 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent....... 6
SECTION 2.6 Events of Default; Waiver.............................. 7
SECTION 2.7 Event of Default; Notice............................... 7
SECTION 2.8 Conflicting Interests.................................. 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee
Trustee................................................ 7
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.......... 9
SECTION 3.3. Not Responsible for Recitals or Issuance
of Preferred Securities Guarantee...................... 12
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility............... 12
SECTION 4.2 Appointment, Removal and Resignation of
Preferred Guarantee Trustee............................ 13
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.............................................. 14
SECTION 5.2 Waiver of Notice and Demand............................ 14
SECTION 5.3 Obligations Not Affected............................... 14
SECTION 5.4 Rights of Holders...................................... 15
SECTION 5.5 Guarantee of Payment................................... 16
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 5.6 Subrogation............................................ 16
SECTION 5.7 Independent Obligations................................ 17
ARTICLE VI
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 6.1 Limitation of Transactions............................. 17
SECTION 6.2 Subordination.......................................... 17
SECTION 6.3 Pari Passu Guarantees.................................. 18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination............................................ 18
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation............................................ 18
SECTION 8.2 Indemnification........................................ 19
SECTION 8.3 Compensation and Reimbursement......................... 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns................................. 20
SECTION 9.2 Amendments............................................. 20
SECTION 9.3 Notices................................................ 20
SECTION 9.4 Benefit................................................ 21
SECTION 9.5 Governing Law.......................................... 21
</TABLE>
2
<PAGE>
Page
----
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of [date], is executed and delivered by BANK ONE CORPORATION, a Delaware
corporation (the "Guarantor"), and The Chase Manhattan Bank, as trustee (the
"Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
BANK ONE Capital [I], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of [date], among the trustees of the Issuer named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof [ ]preferred securities, having an aggregate
liquidation amount of [$ ] designated the [Floating Rate][ %] Preferred
Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of holders
of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments under this Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Preferred Securities Guarantee but
not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1 or in the Declaration, as
the case may be;
(b) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to Articles
and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless
otherwise defined in this Preferred Securities Guarantee or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
------------
day on which banking institutions in The City of New York or the City of Chicago
are authorized or required by law or executive order to remain closed, or (c) a
day on which the Institutional Trustee's Corporate Trust Office or the Corporate
2
<PAGE>
Trust Office of the Debenture Trustee is closed for business.
"Common Securities" means the securities representing common undivided
-----------------
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means (i) when used with respect to the
----------------------
Preferred Guarantee Trustee, the principal corporate office of the Preferred
Guarantee Trustee located in New York, New York which on the date of this
Trustee Agreement is 450 West 33rd Street, New York, New York 10001 - Attention:
Corporate Trustee Administration Department, (ii) when used with respect to the
Debenture Trustee, its Principal Corporate Trust Office as defined in the
Indenture, and (iii) when used with respect to the Institutional Trustee, its
Corporate Trust Office as defined in the Declaration.
"Covered Person" means any Holder or beneficial owner of Preferred
--------------
Securities.
"Debentures" means the series of junior subordinated debt securities
----------
of the Guarantor designated the [Floating Rate] [ %] Junior Subordinated
Deferrable Interest Debentures due [date], held by the Institutional Trustee (as
defined in the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
----------------
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
------------------
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Preferred Securities to the date of
3
<PAGE>
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records
------
of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
------------------
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of January 1, 1997, among the
---------
Guarantor (the "Debenture Issuer") and The Chase Manhattan Bank, as trustee, and
any indenture supplemental thereto pursuant to which certain subordinated debt
securities of the Debenture Issuer are to be issued to the Institutional Trustee
of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
------------------------------------------------
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee (other than pursuant to
Section 314(a)(4) of the Trust Indenture Act) shall include:
4
<PAGE>
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means The Chase Manhattan Bank, until a
---------------------------
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, when used with respect to the Preferred
-------------------
Guarantee Trustee, any officer assigned to the Corporate Trust Office of the
Preferred Guarantee Trustee, including any managing director, vice president,
assistant vice president, senior trust officer, trust officer, assistant
treasurer, assistant secretary or any other officer of the Preferred Guarantee
Trustee, customarily performing functions similar to those performed by any of
the above designated officers, and also, with respect to a particular corporate
trust matter, any other officer, to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
-------------------------------------
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
5
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended.
"Trust Securities" means the Common Securities and the Preferred
----------------
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities
------------------------------
(a) The Guarantor shall provide the Preferred Guarantee Trustee with
a list, in such form as the Preferred Guarantee Trustee may reasonably require,
of the names and addresses of the Holders ("List of Holders"), (i) within 14
days after each record date for payment of Distributions (as defined in the
Declaration) as of such record date, and (ii) at any other time within 30 days
of receipt by the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to the Preferred
Guarantee Trustee provided, that the Guarantor shall not be obligated to provide
--------
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Preferred Guarantee Trustee by the
Guarantor. The Preferred Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
6
<PAGE>
SECTION 2.3 Reports by the Preferred Guarantee Trustee
------------------------------------------
Within 60 days after November 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders such reports as are required by Section
313(a) of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Preferred Guarantee
Trustee shall also comply with the other requirements of Section 313 of the
Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
-----------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, provided that such compliance certificate shall be delivered on
or before 120 days after the end of each fiscal year of the Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
-------------------------
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
7
<PAGE>
SECTION 2.7 Event of Default; Notice
------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default actually known to a
Responsible Officer of the Preferred Guarantee Trustee, unless such defaults
have been cured before the giving of such notice, provided, that, the Preferred
Guarantee Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice thereof from the Guarantor or a Holder, or a
Responsible Officer of the Preferred Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual knowledge thereof.
SECTION 2.8 Conflicting Interests
---------------------
The Declaration shall be deemed to be specifically described in this
Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
----------------------------------------------------
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders, and the Preferred
Guarantee Trustee shall not transfer this Preferred Securities Guarantee to any
Person except a Holder exercising his or her rights pursuant to Section 5.4(c)
or to a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and
8
<PAGE>
interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee for the
benefit of the Holders.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall be
read into this Preferred Securities Guarantee against the Preferred Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee Trustee
shall be determined solely by the express provisions of this Preferred
Securities Guarantee, and the Preferred Guarantee Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Preferred Securities Guarantee, and
no implied covenants or obligations shall be read into this Preferred
Securities Guarantee against the Preferred Guarantee Trustee; and
9
<PAGE>
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee, or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Preferred Securities
Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against such
risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
---------------------------------------------
10
<PAGE>
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Preferred Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in
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<PAGE>
it by this Preferred Securities Guarantee at the request or direction of
any Holder, unless such Holder shall have provided to the Preferred
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Preferred Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Preferred Guarantee
Trustee's agents, nominees or custodians) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Preferred Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall be taken
to relieve the Preferred Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it
hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders, and the signature of the Preferred
Guarantee Trustee or its agents alone shall be sufficient and effective to
perform any such action. No third party shall be required to inquire as to
the authority of the Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by the
Preferred Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall
12
<PAGE>
deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Preferred
Guarantee Trustee (i) may request instructions from the Holders of a
Majority in liquidation amount of the Preferred Securities, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in accordance with such instructions.
(xi) The Preferred Guarantee Trustee shall not be liable for any
action taken, suffered or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Preferred Securities
----------------------------------------------------------------
Guarantee
---------
The recitals contained in this Preferred Securities Guarantee shall be
taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
----------------------------------------
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
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<PAGE>
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act, subject to the penultimate paragraph thereof. To the extent permitted by
the Trust Indenture Act, the Preferred Guarantee Trustee shall not be deemed to
have a conflicting interest with respect to the Preferred Securities Guarantee
by virtue of being trustee under the Indenture originally dated as of November
15, 1996, between the Company and the Preferred Guarantee Trustee or by virtue
of being (i) a trustee on the Series A Declaration, the Series B Declaration or
the 1997 Declaration (as defined in the Declaration), (ii) a trustee on the
Series A Guarantee, the Series B Guarantee or the 1997 Preferred Securities
Guarantee (as defined in the Declaration), or (iii) a trustee on the
Declaration.
14
<PAGE>
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee
-------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except during an
Event of Default.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery of an instrument of removal or resignation, the Preferred
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts due to the Preferred Guarantee Trustee accrued to the date of such
termination, removal or resignation.
15
<PAGE>
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of set-
off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption
16
<PAGE>
Price, Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures or any extension of
the maturity date of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
-----------------
(a) The Issuer expressly acknowledges that (i) this Preferred
Securities Guarantee will be deposited with the Preferred Guarantee Trustee to
be held for the benefit of the Holders and (ii) the Preferred Guarantee Trustee
has the right to enforce this Preferred Securities Guarantee on behalf of the
Holders.
(b) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time,
17
<PAGE>
method and place of conducting of any proceeding for any remedy available to the
Preferred Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Guarantee Trustee
under this Preferred Securities Guarantee; provided, however, that, subject to
-------- -------
Section 3.1, the Preferred Guarantee Trustee shall have the right to decline to
follow any such direction if the Preferred Guarantee Trustee shall determine
that the action so directed would be unjustly prejudicial to the Holders not
taking part in such direction or if the Preferred Guarantee Trustee being
advised by counsel determines that the action or proceeding so directed may not
lawfully be taken or if the Preferred Guarantee Trustee in good faith by its
board of directors or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine that the
action or proceeding so directed would involve the Preferred Guarantee Trustee
in personal liability.
(c) If the Preferred Guarantee Trustee fails to enforce such
Preferred Securities Guarantee, any Holder may institute a legal proceeding
directly against the Guarantor to enforce the Preferred Guarantee Trustee's
rights under this Preferred Securities Guarantee, without first instituting a
legal proceeding against the Issuer, the Preferred Guarantee Trustee or any
other person or entity. The Guarantor waives any right or remedy to require that
any action be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Preferred Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Preferred Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Preferred
18
<PAGE>
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS, SUBORDINATION
SECTION 6.1 Limitation of Transactions
--------------------------
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default, then the Guarantor shall not and it shall not
permit any subsidiary to, (a) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of the Guarantor's capital stock, or (b) make any payment of principal of
or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari passu in all respects with or junior
in interest to the Debentures or make any guarantee payments with respect to any
guarantee by the Guarantor of debt securities of any subsidiary of the Guarantor
if such guarantee ranks pari passu with or junior in interest to the Debentures
(other than (a) dividends or distributions in common stock of the Guarantor, (b)
any declaration of a dividend in connection with the implementation of a Rights
Plan (as defined in the Indenture), or the issuance of stock under any such
Rights Plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under this Preferred Securities Guarantee, (d)
purchases of common stock related to the issuance of common stock or rights
under any of the Guarantor's benefit plans for its directors, officers or
employees and (e) obligations under any dividend reinvestment and stock purchase
plan).
SECTION 6.2 Subordination.
-------------
19
<PAGE>
The obligations of the Guarantor under this Preferred Securities
Guarantee will constitute unsecured obligations of the Guarantor and will rank
subordinate and junior in right of payments to the Senior Indebtedness and
General Obligations (each as defined in the Indenture) to the extent and in the
manner set forth in the Indenture. The obligations of the Guarantor under this
Preferred Securities Guarantee do not constitute Senior Indebtedness or General
Obligations.
SECTION 6.3 Pari Passu Guarantees
---------------------
The obligations of the Guarantor under this Preferred Securities
Guarantee shall rank pari passu with the obligations of the Guarantor under (i)
any similar FCN Guarantee or BANK ONE Guarantee(as defined in the Indenture)
issued by the Guarantor on behalf of the holders of preferred or capital
securities issued by any FCN Capital Trust or BANK ONE Capital Trust (as defined
in the Indenture) and (ii) the Series A Guarantee and the Series B Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred Securities
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Preferred Securities or under this Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any
20
<PAGE>
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Preferred Securities Guarantee or the earlier resignation or removal of the
Preferred Guarantee Trustee.
SECTION 8.3 Compensation and Reimbursement
------------------------------
The Guarantor agrees:
(1) to pay to the Preferred Guarantee Trustee from time to time
reasonable compensation for all services rendered by it hereunder in such
amounts as the Guarantor and the Preferred Guarantee Trustee shall agree from
time to time (which compensa-
21
<PAGE>
tion shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust); and
(2) to reimburse the Preferred Guarantee Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Preferred Guarantee Trustee in accordance with any provision of this Preferred
Securities Guarantee (including the reasonable compensation and the expenses and
disbursements or its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith.
The obligations of the Guarantor under this Section 8.3 shall survive
the termination of this Preferred Securities Guarantee or the earlier
resignation or removal of the Preferred Guarantee Trustee.
To secure the Guarantor's payment obligations in this Section and in
Section 8.2, the Guarantor and the Holders agree that the Preferred Guarantee
Trustee shall have a lien prior to the Preferred Securities on all money or
property held or collection by the Guarantee Trustee. Such lien shall survive
the termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
22
<PAGE>
SECTION 9.2 Amendments
----------
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all the outstanding Preferred Securities. The provisions of the
Declaration with respect to consents to amendments thereof (whether at a meeting
or otherwise) of Holders of the Securities shall apply to the giving of such
approval.
SECTION 9.3 Notices
-------
All notices provided for in this Preferred Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders and the
Guarantor):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administrator
Department
Telecopy: (212) 946-8159/8160
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders and the Preferred Guarantee Trustee):
BANK ONE CORPORATION
One First National Plaza
Chicago, Illinois 60670
Attention: Treasurer
Telecopy: 312-732-3366
23
<PAGE>
(c) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
-------
This Preferred Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.5 Governing Law
-------------
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
24
<PAGE>
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
BANK ONE CORPORATION,
as Guarantor
By:____________________________________
Name: M. Eileen Kennedy
Title: Treasurer
THE CHASE MANHATTAN BANK,
as Preferred Guarantee Trustee
By:____________________________________
Name:
Title:
25
<PAGE>
[BANK ONE LETTERHEAD]
Exhibit 5.1 and 23.2
June 17, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: BANK ONE CORPORATION
BANK ONE Capital I
BANK ONE Capital II
BANK ONE Capital III
BANK ONE Capital IV
BANK ONE Capital V
Form S-3 Registration Statement
-------------------------------
Ladies and Gentlemen:
I am Executive Vice President, General Counsel and Secretary of BANK ONE
CORPORATION, a Delaware corporation (the "Company"), and in such capacity, I, or
members of my staff subject to my supervision, have represented the Company and
BANK ONE Capital I, BANK ONE Capital II, BANK ONE Capital III, BANK ONE Capital
IV and BANK ONE Capital V, all of the foregoing being statutory business trusts
sponsored by the Company created under the laws of the State of Delaware (the
"Trusts"), in connection with the Registration Statement on Form S-3 of the
Company and the Trusts concurrently being filed with the Securities and Exchange
Commission (the "Registration Statement") relating to (i) preferred securities
which may be issued by one or more of the Trusts representing undivided
beneficial interests in the assets of such Trusts (collectively, the "Preferred
Securities"), (ii) junior subordinated debt securities of the Company which may
be issued and sold from time to time to one or more Trusts (the "Junior Debt
Securities"), (iii) guarantees of the Company for certain payments on
liquidation, redemption or otherwise with respect to the Preferred Securities
(the "Guarantees") and (iv) debt securities of the Company which may be of a
senior or subordinated rank (the "Debt Securities"). The Preferred Securities,
the Junior Debt Securities, the Guarantees and the Debt Securities are referred
to herein collectively as the "Offered Securities".
The Offered Securities will be sold or delivered from time to time as set
forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the
<PAGE>
Continuing our letter of June 17, 1999
Sheet no. 2
"Prospectus") and supplements to the Prospectus (the "Prospectus Supplement").
The Junior Debt Securities will be issued under an Indenture dated as of January
1, 1997, between the Company and The Chase Manhattan Bank, as trustee, (as
supplemented to the date hereof, the "Junior Indenture"). The Preferred
Securities will be subject to the terms of the amended and restated declaration
of trust applicable to the Trust issuing such Preferred Securities (each, a
"Declaration of Trust"). The Guarantees will be entered into from time to time
by the Company in connection with the issuance of Preferred Securities. The
Debt Securities will be issued under one of two indentures, each dated as of
March 3, 1997, and each supplemented as of October 2, 1998, between the Company
and The Chase Manhattan Bank, as trustee (collectively, as so supplemented, the
"Indentures"). The Junior Indenture, the form of Declaration of Trust for each
Trust, the form of Guarantee and the Indentures are exhibits to the Registration
Statement.
I have reviewed such corporate records and other documents and have made
such further examinations and inquiries as I have deemed necessary to enable me
to express the opinions set forth herein.
Based on the foregoing, and subject to the qualifications and limitations
stated herein, it is my opinion that:
(i) upon the issuance, authentication and delivery of the Junior
Debt Securities in accordance with the provisions of the Junior
Indenture against payment therefor, the Junior Debt Securities
will constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity;
(ii) upon the due execution of the Declaration of Trust and the
issuance, authentication and delivery of the Preferred
Securities in accordance with the provisions of such
Declaration of Trust against payment therefor, the Preferred
Securities will be duly and validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of
the relevant Trust;
(iii) upon the due execution of the Guarantee and the issuance,
authentication and delivery of the Guarantee in accordance with
its terms upon issuance of the related Preferred Securities,
the Guarantee will constitute the legal, valid and binding
obligation of the Company enforceable in accordance with its
terms subject, as to enforcement of remedies, to applicable
bankruptcy,
<PAGE>
Continuing our letter of June 17, 1999
Sheet no. 3
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity; and
(iv) upon the issuance, authentication and delivery of the Debt
Securities in accordance with the provisions of the applicable
Indenture against payment therefor, the Debt Securities will
constitute legal, valid and binding obligations of the Company
enforceable in accordance with their terms subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity.
I am a member of the Bar of the State of Illinois, and I do not express any
opinion herein concerning any law other than the law of the State of Illinois,
the federal law of the United States and the Delaware General Corporation Law.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name whenever it appears in such
Registration Statement, including the Prospectus and any Prospectus Supplement
constituting a part hereof, as originally filed or as subsequently amended.
Very truly yours,
/S/ Sherman I. Goldberg
<PAGE>
Exhibit 12
STATEMENT REGARDING COMPUTATION OF RATIOS
The ratios of earnings to fixed charges for BANK ONE CORPORATION have been
computed on the basis of the total enterprise (as defined by the Securities and
Exchange Commission) by dividing earnings before fixed charges and income taxes
by fixed charges. Fixed charges consist principally of interest expense on all
long-term and short-term borrowings, excluding or including interest on deposits
as indicated.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To BANK ONE CORPORATION:
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-3 Registration Statement of our report dated January
14, 1999, on the consolidated financial statements of BANK ONE CORPORATION
included in the Form 10-K of BANK ONE CORPORATION as of December 31, 1998 and
1997 and for the three years ended December 31, 1998 and to the reference to our
Firm under the caption "Experts" included in this Registration Statement.
/s/ Arthur Anderson LLP
Chicago, Illinois,
June 11, 1999
<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 (or, if deemed appropriate by the General Counsel of this
Corporation, Form S-4) relating to securities (including, but not limited to,
preferred securities and debt securities) to be issued or guaranteed by BANK ONE
CORPORATION (the "Corporation") and any amendments thereto (including any post-
effective amendments) 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, in either case pursuant to resolutions adopted by the Board
of Directors of the Corporation on May 18, 1999, 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
___________________________________ Director
Richard A. Manoogian
/s/ William T. McCormick
___________________________________ Director
William T. McCormick
/s/ John B. McCoy
___________________________________ Director and Principal Executive
John B. McCoy Officer
/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
/s/ Frederick P. Stratton, Jr.
___________________________________ Director
Frederick P. Stratton, Jr.
<PAGE>
/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: May 18, 1999
<PAGE>
EXHIBIT 25.1
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Corporation
(Exact name of obligor as specified in its charter)
Delaware 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, Illinois 60670
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Glenn G. McKeever
---------------------
/s/ Glenn G. McKeever
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions
of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................... $ 15,364
Interest-bearing balances........................................ 3,811
Securities:
Held to maturity securities......................................... 1,084
Available for sale securities....................................... 49,894
Federal funds sold and securities purchased under
agreements to resell ............................................ 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income......................... $ 1,839
Less: Allowance for loan and lease losses........................ 2,642
Less: Allocated transfer risk reserve............................ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................................... 129,197
Trading Assets...................................................... 45,483
Premises and fixed assets (including capitalized leases)............ 3,124
Other real estate owned............................................. 242
Investments in unconsolidated subsidiaries and
associated companies............................................. 171
Customers' liability to this bank on acceptances
outstanding...................................................... 974
Intangible assets................................................... 2,017
Other assets........................................................ 12,477
--------
TOTAL ASSETS........................................................ $291,476
========
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits
In domestic offices............................................ $102,273
Noninterest-bearing............................................ $39,135
Interest-bearing............................................... 63,138
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's......................................... 74,586
Noninterest-bearing............................................... $ 4,221
Interest-bearing............................................... 70,365
Federal funds purchased and securities sold under
agreements to repurchase.......................................... 41,039
Demand notes issued to the U.S. Treasury.......................... 1,000
Trading liabilities............................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.................. 4,353
With a remaining maturity of more than one year
through three years......................................... 14
With a remaining maturity of more than three years............. 92
Bank's liability on acceptances executed and outstanding.......... 974
Subordinated notes and debentures................................. 5,427
Other liabilities................................................. 9,684
TOTAL LIABILITIES 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................... 0
Common stock...................................................... 1,211
Surplus (exclude all surplus related to preferred stock)......... 11,016
Undivided profits and capital reserves............................ 7,040
Net unrealized holding gains (losses) on available-for-sale
securities........................................................ (179)
Accumulated net gains (losses) on cash flow hedges................ 0
Cumulative foreign currency translation adjustments............... 17
TOTAL EQUITY CAPITAL.............................................. 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.............................. $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.2
___________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
Bank One Corporation
(Exact name of obligor as specified in its charter)
Delaware 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, Illinois 60670
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Glenn G. McKeever
---------------------
/s/ Glenn G. McKeever
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin........................................ $ 15,364
Interest-bearing balances................................ 3,811
Securities:..................................................
Held to maturity securities.................................. 1,084
Available for sale securities................................. 49,894
Federal funds sold and securities purchased under
agreements to resell..................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income................. $131,839
Less: Allowance for loan and lease losses................ 2,642
Less: Allocated transfer risk reserve.................... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve................................... 129,197
Trading Assets................................................ 45,483
Premises and fixed assets (including capitalized
leases).................................................. 3,124
Other real estate owned....................................... 242
Investments in unconsolidated subsidiaries and
associated companies..................................... 171
Customers' liability to this bank on acceptances
outstanding.............................................. 974
Intangible assets............................................. 2,017
Other assets.................................................. 12,477
--------
TOTAL ASSETS.................................................. $291,476
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices........................................................ $ 102,273
Noninterest-bearing........................................................ $ 39,135
Interest-bearing........................................................... 63,138
In foreign offices, Edge and Agreement,.................................... ------
subsidiaries and IBF's..................................................... 74,586
Noninterest-bearing........................................................ $ 4,221
Interest-bearing........................................................... 70,365
Federal funds purchased and securities sold under agreements to repurchase...... 41,039
Demand notes issued to the U.S. Treasury........................................ 1,000
Trading liabilities............................................................. 32,929
Otherborrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.......................... 4,353
With a remaining maturity of more than one year
through three years................................................... 14
With a remaining maturity of more than three years......................... 92
Bank's liability on acceptances executed and outstanding................... 974
Subordinated notes and debentures.......................................... 5,427
Other liabilities.......................................................... 9,684
TOTAL LIABILITIES......................................................... 272,371
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................... 0
Common stock.................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....................... 11,016
Undivided profits and capital reserves.......................................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities................................................ (179)
Accumulated net gains (losses) on cash flow hedges.............................. 0
Cumulative foreign currency translation adjustments............................. 17
TOTAL EQUITY CAPITAL............................................................ 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL............................................ $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.3
_________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Corporation
(Exact name of obligor as specified in its charter)
Delaware 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
____________________________________________
Debt Securities
(Title of the indenture securities)
_________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-------------------
/s/ P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin........................................... $ 15,364
Interest-bearing balances................................... 3,811
Securities:......................................................
Held to maturity securities...................................... 1,084
Available for sale securities.................................... 49,894
Federal funds sold and securities purchased under
agreements to resell........................................ 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income.................... $ 131,839
Less: Allowance for loan and lease losses................... 2,642
Less: Allocated transfer risk reserve....................... 0
---------
Loans and leases, net of unearned income,
allowance, and reserve...................................... 129,197
Trading Assets................................................... 45,483
Premises and fixed assets (including capitalized
leases)..................................................... 3,124
Other real estate owned.......................................... 242
Investments in unconsolidated subsidiaries and
associated companies........................................ 171
Customers' liability to this bank on acceptances
outstanding................................................. 974
Intangible assets................................................ 2,017
Other assets..................................................... 12,477
---------
TOTAL ASSETS $ 291,476
</TABLE>
=========
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices ..................................................... $ 102,273
Noninterest-bearing ..................................................... $ 39,135
Interest-bearing......................................................... 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................................... 74,586
Noninterest-bearing ..................................................... $ 4,221
Interest-bearing......................................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................................... 41,039
Demand notes issued to the U.S. Treasury...................................... 1,000
Trading liabilities........................................................... 32,929
Otherborrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less........................ 4,353
With a remaining maturity of more than one year
through three years............................................... 14
With a remaining maturity of more than three years....................... 92
Bank's liability on acceptances executed and outstanding 974
Subordinated notes and debentures............................................. 5,427
Other liabilities............................................................. 9,684
TOTAL LIABILITIES............................................................. 272,371
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.................................................................. 1,211
Surplus (exclude all surplus related to preferred stock)..................... 11,016
Undivided profits and capital reserves........................................ 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ............................................. (179)
Accumulated net gains (losses) on cash flow hedges............................ 0
Cumulative foreign currency translation adjustments........................... 17
TOTAL EQUITY CAPITAL.......................................................... 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
Exhibit 25.4
______________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
_______________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)________
_______________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_______________________________________
Bank One Capital I
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
_______________________________________
Trust Preferred Securities
(Title of the indenture securities)
______________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
---------------------------------
P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions
of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................... $ 15,364
Interest-bearing balances........................................ 3,811
Securities:
Held to maturity securities......................................... 1,084
Available for sale securities....................................... 49,894
Federal funds sold and securities purchased under
agreements to resell ............................................ 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income......................... $ 131,839
Less: Allowance for loan and lease losses........................ 2,642
Less: Allocated transfer risk reserve............................ 0
---------
Loans and leases, net of unearned income,
allowance, and reserve........................................... 129,197
Trading Assets...................................................... 45,483
Premises and fixed assets (including capitalized leases)............ 3,124
Other real estate owned............................................. 242
Investments in unconsolidated subsidiaries and
associated companies............................................. 171
Customers' liability to this bank on acceptances
outstanding...................................................... 974
Intangible assets................................................... 2,017
Other assets........................................................ 12,477
--------
TOTAL ASSETS........................................................ $291,476
========
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits
In domestic offices............................................ $102,273
Noninterest-bearing............................................ $39,135
Interest-bearing............................................... 63,138
In foreign offices, Edge and Agreement,
subsidiaries and IBF's......................................... 74,586
Noninterest-bearing............................................... $ 4,221
Interest-bearing............................................... 70,365
Federal funds purchased and securities sold under
agreements to repurchase.......................................... 41,039
Demand notes issued to the U.S. Treasury.......................... 1,000
Trading liabilities............................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.................. 4,353
With a remaining maturity of more than one year
through three years......................................... 14
With a remaining maturity of more than three years............. 92
Bank's liability on acceptances executed and outstanding.......... 974
Subordinated notes and debentures................................. 5,427
Other liabilities................................................. 9,684
TOTAL LIABILITIES 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................... 0
Common stock...................................................... 1,211
Surplus (exclude all surplus related to preferred stock)......... 11,016
Undivided profits and capital reserves............................ 7,040
Net unrealized holding gains (losses) on available-for-sale
securities........................................................ (179)
Accumulated net gains (losses) on cash flow hedges................ 0
Cumulative foreign currency translation adjustments............... 17
TOTAL EQUITY CAPITAL.............................................. 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.............................. $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
Exhibit 25.5
____________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Capital II
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
______________________________________
Trust Preferred Securities
(Title of the indenture securities)
____________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-------------------------
/s/ P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .............................................. $ 15,364
Interest-bearing balances....................................... 3,811
Securities:
Held to maturity securities.......................................... 1,084
Available for sale securities........................................ 49,894
Federal funds sold and securities purchased under
agreements to resell ........................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ $ 131,839
Less: Allowance for loan and lease losses....................... 2,642
Less: Allocated transfer risk reserve........................... 0
-----------
Loans and leases, net of unearned income,
allowance, and reserve ......................................... 129,197
Trading Assets....................................................... 45,483
Premises and fixed assets (including capitalized
leases)......................................................... 3,124
Other real estate owned.............................................. 242
Investments in unconsolidated subsidiaries and
associated companies............................................ 171
Customers' liability to this bank on acceptances
outstanding..................................................... 974
Intangible assets.................................................... 2,017
Other assets......................................................... 12,477
-----------
TOTAL ASSETS......................................................... $ 291,476
===========
</TABLE>
-4-
<PAGE>
<TABLE>
LIABILITIES
<S> <C>
Deposits
In domestic offices ................................................. $ 102,273
Noninterest-bearing.................................................. $ 39,135
Interest-bearing..................................................... 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's............................................... 74,586
Noninterest-bearing ................................................. $ 4,221
Interest-bearing..................................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 41,039
Demand notes issued to the U.S. Treasury.................................. 1,000
Trading liabilities....................................................... 32,929
Otherborrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less........................ 4,353
With a remaining maturity of more than one year
through three years........................................... 14
With a remaining maturity of more than three years................... 92
Bank's liability on acceptances executed and outstanding.................. 974
Subordinated notes and debentures......................................... 5,427
Other liabilities......................................................... 9,684
TOTAL LIABILITIES......................................................... 272,371
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................. 0
Common stock.............................................................. 1,211
Surplus (exclude all surplus related to preferred stock)................. 11,016
Undivided profits and capital reserves.................................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (179)
Accumulated net gains (losses) on cash flow hedges........................ 0
Cumulative foreign currency translation adjustments....................... 17
TOTAL EQUITY CAPITAL...................................................... 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL...................................... $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.6
________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Capital III
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
___________________________________________
Trust Preferred Securities
(Title of the indenture securities)
___________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
---------------------
/s/ P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................................ $ 15,364
Interest-bearing balances......................................... 3,811
Securities:
Held to maturity securities............................................ 1,084
Available for sale securities.......................................... 49,894
Federal funds sold and securities purchased under
agreements to resell.............................................. 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income.......................... $ 131,839
Less: Allowance for loan and lease losses......................... 2,642
Less: Allocated transfer risk reserve............................. 0
---------
Loans and leases, net of unearned income,
allowance, and reserve........................................... 129,197
Trading Assets........................................................ 45,483
Premises and fixed assets (including capitalized
leases).......................................................... 3,124
Other real estate owned............................................... 242
Investments in unconsolidated subsidiaries and
associated companies............................................. 171
Customers' liability to this bank on acceptances
outstanding...................................................... 974
Intangible assets..................................................... 2,017
Other assets.......................................................... 12,477
---------
TOTAL ASSETS.......................................................... $ 291,476
=========
</TABLE>
-4-
<PAGE>
LIABILTIES
<TABLE>
<S> <C>
Deposits
In domestic offices...................................................... $ 102,273
Noninterest-bearing...................................................... $ 39,135
Interest-bearing......................................................... 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................................... 74,586
Noninterest-bearing........................................................... $ 4,221
Interest-bearing......................................................... 70,365
Federal funds purchased and securities sold under agreements to repurchase.... 41,039
Demand notes issued to the U.S. Treasury...................................... 1,000
Trading liabilities........................................................... 32,929
Otherborrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less............................ 4,353
With a remaining maturity of more than one year
through three years............................................... 14
With a remaining maturity of more than three years..................... 92
Bank's liability on acceptances executed and outstanding...................... 974
Subordinated notes and debentures............................................. 5,427
Other liabilities............................................................. 9,684
TOTAL LIABILITIES............................................................. 272,371
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.................................................................. 1,211
Surplus (exclude all surplus related to preferred stock)..................... 11,016
Undivided profits and capital reserves........................................ 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ............................................. (179)
Accumulated net gains (losses) on cash flow hedges............................ 0
Cumulative foreign currency translation adjustments........................... 17
TOTAL EQUITY CAPITAL.......................................................... 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL.......................................... $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.7
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Capital IV
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
____________________________________________
Trust Preferred Securities
(Title of the indenture securities)
____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
----------------------
P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin.......................................... $ 15,364
Interest-bearing balances.................................. 3,811
Securities:
Held to maturity securities..................................... 1,084
Available for sale securities................................... 49,894
Federal funds sold and securities purchased under
agreements to resell....................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income................... $ 131,839
Less: Allowance for loan and lease losses.................. 2,642
Less: Allocated transfer risk reserve...................... 0
---------
Loans and leases, net of unearned income,
allowance, and reserve..................................... 129,197
Trading Assets.................................................. 45,483
Premises and fixed assets (including capitalized
leases).................................................... 3,124
Other real estate owned......................................... 242
Investments in unconsolidated subsidiaries and
associated companies....................................... 171
Customers' liability to this bank on acceptances
outstanding................................................ 974
Intangible assets............................................... 2,017
Other assets.................................................... 12,477
---------
TOTAL ASSETS.................................................... $ 291,476
=========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices...................................... $ 102,273
Noninterest-bearing...................................... $ 39,135
Interest-bearing......................................... 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................... 74,586
Noninterest-bearing...................................... $ 4,221
Interest-bearing......................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase........................................... 41,039
Demand notes issued to the U.S. Treasury...................... 1,000
Trading liabilities........................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............ 4,353
With a remaining maturity of more than one year
through three years............................... 14
With a remaining maturity of more than three years....... 92
Bank's liability on acceptances executed and outstanding...... 974
Subordinated notes and debentures............................. 5,427
Other liabilities............................................. 9,684
TOTAL LIABILITIES............................................. 272,371
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus................. 0
Common stock.................................................. 1,211
Surplus (exclude all surplus related to preferred stock)..... 11,016
Undivided profits and capital reserves........................ 7,040
Net unrealized holding gains (losses)
on available-for-sale securities.............................. (179)
Accumulated net gains (losses) on cash flow hedges............ 0
Cumulative foreign currency translation adjustments........... 17
TOTAL EQUITY CAPITAL.......................................... 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL.......................... $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
Exhibit 25.8
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Capital V
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
____________________________________________
Trust Preferred Securities
(Title of the indenture securities)
___________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-----------------------------
/s/ P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
<TABLE>
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................ $ 15,364
Interest-bearing balances..................................... 3,811
Securities:........................................................
Held to maturity securities........................................ 1,084
Available for sale securities...................................... 49,894
Federal funds sold and securities purchased under
agreements to resell.......................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income...................... $ 131,839
Less: Allowance for loan and lease losses..................... 2,642
Less: Allocated transfer risk reserve......................... 0
---------
Loans and leases, net of unearned income,
allowance, and reserve. ...................................... 129,197
Trading Assets..................................................... 45,483
Premises and fixed assets (including capitalized
leases)....................................................... 3,124
Other real estate owned............................................ 242
Investments in unconsolidated subsidiaries and
associated companies.......................................... 171
Customers' liability to this bank on acceptances
outstanding................................................... 974
Intangible assets.................................................. 2,017
Other assets....................................................... 12,477
---------
TOTAL ASSETS....................................................... $ 291,476
=========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices ............................................................ $ 102,273
Noninterest-bearing ............................................................ $ 39,135
Interest-bearing ............................................................... 63,138
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ......................................................... 74,586
Noninterest-bearing ............................................................ $ 4,221
Interest-bearing ............................................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase ............................................................... 41,039
Demand notes issued to the U.S. Treasury .......................................... 1,000
Trading liabilities ............................................................... 32,929
Otherborrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less................................... 4,353
With a remaining maturity of more than one year
through three years......................................................... 14
With a remaining maturity of more than three years.............................. 92
Bank's liability on acceptances executed and outstanding........................... 974
Subordinated notes and debentures.................................................. 5,427
Other liabilities.................................................................. 9,684
TOTAL LIABILITIES.................................................................. 272,371
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock...................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)......................... 11,016
Undivided profits and capital reserves............................................ 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ................................................. (179)
Accumulated net gains (losses) on cash flow hedges................................ 0
Cumulative foreign currency translation adjustments............................... 17
TOTAL EQUITY CAPITAL.............................................................. 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL.............................................. $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by
the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.9
______________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
_______________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)________
_______________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_______________________________________________________
Bank One Corporation
(Exact name of obligor as specified in its charter)
Delaware 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
_________________________________________________________
Guarantee
Bank One Capital I
Trust Preferred Securities
(Title of the indenture securities)
______________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
---------------------------------
P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin........................ $ 15,364
Interest-bearing balances................................................. 3,811
Securities:....................................................................
Held to maturity securities.................................................... 1,084
Available for sale securities.................................................. 49,894
Federal funds sold and securities purchased under agreements to resell......... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income.................................. $ 131,839
Less: Allowance for loan and lease losses................................. 2,642
Less: Allocated transfer risk reserve..................................... 0
-----------
Loans and leases, net of unearned income, allowance, and reserve.......... 129,197
Trading Assets................................................................. 45,483
Premises and fixed assets (including capitalized leases)....................... 3,124
Other real estate owned........................................................ 242
Investments in unconsolidated subsidiaries and associated companies............ 171
Customers' liability to this bank on acceptances outstanding................... 974
Intangible assets.............................................................. 2,017
Other assets................................................................... 12,477
-----------
TOTAL ASSETS................................................................... $ 291,476
===========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices........................................................ $ 102,273
Noninterest-bearing........................................................ $ 39,135
Interest-bearing........................................................... 63,138
---------
In foreign offices, Edge and Agreement, subsidiaries and IBF's............. 74,586
Noninterest-bearing........................................................ $ 4,221
Interest-bearing........................................................... 70,365
Federal funds purchased and securities sold under agreements to repurchase...... 41,039
Demand notes issued to the U.S. Treasury........................................ 1,000
Trading liabilities............................................................. 32,929
Otherborrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less.............................. 4,353
With a remaining maturity of more than one year through three years........ 14
With a remaining maturity of more than three years......................... 92
Bank's liability on acceptances executed and outstanding
Subordinated notes and.......................................................... 974
debentures...................................................................... 5,427
Other liabilities............................................................... 9,684
TOTAL LIABILITIES............................................................... 272,371
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....................... 11,016
Undivided profits and capital reserves.......................................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (179)
Accumulated net gains (losses) on cash flow hedges.............................. 0
Cumulative foreign currency translation adjustments............................. 17
TOTAL EQUITY CAPITAL............................................................ 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL............................................ $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.10
_______________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Corporation
(Exact name of obligor as specified in its charter)
Delaware 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
_____________________________________________________
Guarantee
Bank One Capital II
Trust Preferred Securities
(Title of the indenture securities)
_______________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-------------------
/s/ P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................... $ 15,364
Interest-bearing balances.................................... 3,811
Securities:.......................................................
Held to maturity securities....................................... 1,084
Available for sale securities..................................... 49,894
Federal funds sold and securities purchased under
agreements to resell ........................................ 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income..................... $ 31,839
Less: Allowance for loan and lease losses.................... 2,642
Less: Allocated transfer risk reserve........................ 0
---------
Loans and leases, net of unearned income,
allowance, and reserve ...................................... 129,197
Trading Assets.................................................... 45,483
Premises and fixed assets (including capitalized leases).......... 3,124
Other real estate owned........................................... 242
Investments in unconsolidated subsidiaries and
associated companies......................................... 171
Customers' liability to this bank on acceptances outstanding 974
Intangible assets................................................. 2,017
Other assets...................................................... 12,477
---------
TOTAL ASSETS...................................................... $ 291,476
=========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices...................................................... $ 102,273
Noninterest-bearing...................................................... $ 39,135
Interest-bearing......................................................... 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................................... 74,586
Noninterest-bearing ..................................................... $ 4,221
Interest-bearing......................................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................................... 41,039
Demand notes issued to the U.S. Treasury...................................... 1,000
Trading liabilities........................................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less 4,353
With a remaining maturity of more than one year.
through three years............................................... 14
With a remaining maturity of more than three years....................... 92
Bank's liability on acceptances executed and outstanding 974
Subordinated notes and debentures............................................. 5,427
Other liabilities............................................................. 9,684
TOTAL LIABILITIES............................................................. 272,371
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.................................................................. 1,211
Surplus (exclude all surplus related to preferred stock)..................... 11,016
Undivided profits and capital reserves........................................ 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ............................................. (179)
Accumulated net gains (losses) on cash flow hedges............................ 0
Cumulative foreign currency translation adjustments........................... 17
TOTAL EQUITY CAPITAL.......................................................... 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL.......................................... $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-
named bank, do hereby declare that this Report of Condition
has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and
is true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and belief
has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and
is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.11
__________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Corporation
(Exact name of obligor as specified in its charter)
Delaware 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
____________________________________________
Guarantee
Bank One Capital III
Trust Preferred Securities
(Title of the indenture securities)
__________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
___________________
/s/ P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................................. $ 15,364
Interest-bearing balances.......................................... 3,811
Securities:
Held to maturity securities.......................................... 1,084
Available for sale securities........................................ 49,894
Federal funds sold and securities purchased under
agreements to resell .............................................. 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income........................... $ 131,839
Less: Allowance for loan and lease losses.......................... 2,642
Less: Allocated transfer risk reserve.............................. 0
----------
Loans and leases, net of unearned income,
allowance, and reserve ............................................ 129,197
Trading Assets....................................................... 45,483
Premises and fixed assets (including capitalized
leases)............................................................ 3,124
Other real estate owned.............................................. 242
Investments in unconsolidated subsidiaries and
associated companies............................................... 171
Customers' liability to this bank on acceptances
outstanding........................................................ 974
Intangible assets.................................................... 2,017
Other assets......................................................... 12,477
----------
TOTAL ASSETS......................................................... $ 291,476
==========
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices...................................................... $ 102,273
Noninterest-bearing...................................................... $ 39,135
Interest-bearing......................................................... 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................................... 74,586
Noninterest-bearing...................................................... $ 4,221
Interest-bearing......................................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase........................................................... 41,039
Demand notes issued to the U.S. Treasury...................................... 1,000
Trading liabilities........................................................... 32,929
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less............................ 4,353
With a remaining maturity of more than one year
through three years................................................... 14
With a remaining maturity of more than three years....................... 92
Bank's liability on acceptances executed and outstanding 974
Subordinated notes and debentures............................................. 5,427
Other liabilities............................................................. 9,684
TOTAL LIABILITIES............................................................. 272,371
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.................................................................. 1,211
Surplus (exclude all surplus related to preferred stock)...................... 11,016
Undivided profits and capital reserves........................................ 7,040
Net unrealized holding gains (losses)
on available-for-sale securities.............................................. (179)
Accumulated net gains (losses) on cash flow hedges............................ 0
Cumulative foreign currency translation adjustments........................... 17
TOTAL EQUITY CAPITAL.......................................................... 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.12
__________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Corporation
(Exact name of obligor as specified in its charter)
Delaware 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
____________________________________________
Guarantee
Bank One Capital IV
Trust Preferred Securities
(Title of the indenture securities)
__________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-------------------
/s/ P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................................ $ 15,364
Interest-bearing balances................................................. 3,811
Securities:....................................................................
Held to maturity securities.................................................... 1,084
Available for sale securities.................................................. 49,894
Federal funds sold and securities purchased under
agreements to resell ..................................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income.................................. $ 131,839
Less: Allowance for loan and lease losses................................. 2,642
Less: Allocated transfer risk reserve..................................... 0
---------
Loans and leases, net of unearned income,
allowance, and reserve ................................................... 129,197
Trading Assets................................................................. 45,483
Premises and fixed assets (including capitalized
leases)................................................................... 3,124
Other real estate owned........................................................ 242
Investments in unconsolidated subsidiaries and
associated companies...................................................... 171
Customers' liability to this bank on acceptances
outstanding............................................................... 974
Intangible assets.............................................................. 2,017
Other assets................................................................... 12,477
---------
TOTAL ASSETS................................................................... $ 291,476
=========
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices ..................................................... $ 102,273
Noninterest-bearing...................................................... $ 39,135
Interest-bearing......................................................... 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................................... 74,586
Noninterest-bearing...................................................... $ 4,221
Interest-bearing......................................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................................... 41,039
Demand notes issued to the U.S. Treasury...................................... 1,000
Trading liabilities........................................................... 32,929
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less............................ 4,353
With a remaining maturity of more than one year
through three years................................................... 14
With a remaining maturity of more than three years....................... 92
Bank's liability on acceptances executed and outstanding 974
Subordinated notes and debentures............................................. 5,427
Other liabilities............................................................. 9,684
TOTAL LIABILITIES............................................................. 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.................................................................. 1,211
Surplus (exclude all surplus related to preferred stock)...................... 11,016
Undivided profits and capital reserves........................................ 7,040
Net unrealized holding gains (losses)
on available-for-sale securities.............................................. (179)
Accumulated net gains (losses) on cash flow hedges............................ 0
Cumulative foreign currency translation adjustments........................... 17
TOTAL EQUITY CAPITAL.......................................................... 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL.......................................... $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.13
_____________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Bank One Corporation
(Exact name of obligor as specified in its charter)
Delaware 31-0738296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First National Plaza
Chicago, IL 60670
(Address of principal executive offices) (Zip Code)
____________________________________________
Guarantee
Bank One Capital V
Trust Preferred Securities
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 7th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ P. Kelly
-------------------
/s/ P. Kelly
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin.................................... $ 15,364
Interest-bearing balances............................ 3,811
Securities:...............................................
Held to maturity securities............................... 1,084
Available for sale securities............................. 49,894
Federal funds sold and securities purchased under
agreements to resell................................. 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income............. $131,839
Less: Allowance for loan and lease losses............ 2,642
Less: Allocated transfer risk reserve................ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve............................... 129,197
Trading Assets............................................ 45,483
Premises and fixed assets (including capitalized
leases).............................................. 3,124
Other real estate owned................................... 242
Investments in unconsolidated subsidiaries and
associated companies................................. 171
Customers' liability to this bank on acceptances
outstanding.......................................... 974
Intangible assets......................................... 2,017
Other assets.............................................. 12,477
--------
TOTAL ASSETS.............................................. $291,476
========
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices............................................ $ 102,273
Noninterest-bearing............................................ $ 39,135
Interest-bearing............................................... 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's......................................... 74,586
Noninterest-bearing................................................. $ 4,221
Interest-bearing............................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase ................................................ 41,039
Demand notes issued to the U.S. Treasury............................ 1,000
Trading liabilities................................................. 32,929
Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
With a remaining maturity of one year or less.................. 4,353
With a remaining maturity of more than one year
through three years....................................... 14
With a remaining maturity of more than three years............. 92
Bank's liability on acceptances executed and outstanding 974
Subordinated notes and debentures................................... 5,427
Other liabilities................................................... 9,684
TOTAL LIABILITIES................................................... 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock........................................................ 1,211
Surplus (exclude all surplus related to preferred stock)........... 11,016
Undivided profits and capital reserves.............................. 7,040
Net unrealized holding gains (losses)
on available-for-sale securities.................................... (179)
Accumulated net gains (losses) on cash flow hedges.................. 0
Cumulative foreign currency translation adjustments................. 17
TOTAL EQUITY CAPITAL................................................ 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL................................ $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
