<PAGE>
As filed with the Securities and Exchange Commission on July 6, 1999
Registration No. 333-80903
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
AMENDMENT NO.1 to
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 incorporation or organization of
No.) 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
Title of each class of Proposed maximum
registration Amount maximum aggregate
securities to be to be offering price offering Amount
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................. $1,500,000,000 N/A $1,500,000,000 $417,000(6)
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
</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
$1,500,000,000 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 $1,500,000,000.
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.
(6) $278 of which has already been paid.
<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 JULY 6, 1999
PROSPECTUS
$1,500,000,000
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
describedherein, 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
$1,500,000,000, 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 COMPANYAND 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
.June 15, 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................................................ $ 417,000
Rating Agency Fees............................................ 80,000
Legal Fees and Expenses....................................... 200,000
Trustees' Fees and Expenses................................... 20,000
Printing and Engraving Expenses............................... 200,000
Accounting Fees and Expenses.................................. 100,000
Miscellaneous Expenses........................................ 33,000
----------
Total....................................................... $1,050,000
==========
</TABLE>
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>
- --------
* Previously filed
** To be 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 Amendment No. 1 to the Registration Statement on
Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Chicago, State of Illinois, on July 6, 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 July 6, 1999
______________________________________
John H. Bryan
/s/ Siegfried Buschmann* Director July 6, 1999
______________________________________
Siegfried Buschmann
/s/ James S. Crown* Director July 6, 1999
______________________________________
James S. Crown
/s/ Bennett Dorrance* Director July 6, 1999
______________________________________
Bennett Dorrance
/s/ Dr. Maureen A. Fay, O.P.* Director July 6, 1999
______________________________________
Dr. Maureen A. Fay, O.P.
/s/ John R. Hall* Director July 6, 1999
______________________________________
John R. Hall
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ VERNE G. ISTOCK* Director July 6, 1999
______________________________________
Verne G. Istock
/s/ LABAN P. JACKSON, JR.* Director July 6, 1999
______________________________________
Laban P. Jackson, Jr.
/s/ JOHN W. KESSLER* Director July 6, 1999
______________________________________
John W. Kessler
/s/ RICHARD J. LEHMANN* Director July 6, 1999
______________________________________
Richard J. Lehmann
Director
______________________________________
Richard A. Manoogian
/s/ WILLIAM T. MCCORMICK* Director July 6, 1999
______________________________________
William T. McCormick
/s/ JOHN B. MCCOY* Director and Principal July 6, 1999
______________________________________ Executive Officer
John B. McCoy
/s/ THOMAS E. REILLY, JR.* Director July 6, 1999
______________________________________
Thomas E. Reilly, Jr.
/s/ JOHN W. ROGERS, JR.* Director July 6, 1999
______________________________________
John W. Rogers, Jr.
/s/ THEKLA R. SHACKELFORD* Director July 6, 1999
______________________________________
Thekla R. Shackelford
/s/ ALEX SHUMATE* Director July 6, 1999
______________________________________
Alex Shumate
/s/ FREDERICK P. STRATTON, JR.* Director July 6, 1999
______________________________________
Frederick P. Stratton, Jr.
/s/ JOHN C. TOLLESON* Director July 6, 1999
______________________________________
John C. Tolleson
/s/ DAVID J. VITALE* Director July 6, 1999
______________________________________
David J. Vitale
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT D. WALTER* Director July 6, 1999
______________________________________
Robert D. Walter
/s/ ROBERT A. ROSHOLT* Principal Financial July 6, 1999
______________________________________ Officer
Robert A. Rosholt
/s/ WILLIAM J. ROBERTS* Principal Accounting July 6, 1999
______________________________________ Officer
William J. Roberts
</TABLE>
- --------
* The undersigned, by signing her name hereto, does hereby sign this Amendment
No. 1 to the 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 1.3
BANK ONE CAPITAL [_]
(a Delaware business trust)
[____] Preferred Securities
[__%][Floating Rate] Preferred Securities
(Liquidation Amount of $[____] Per Preferred Security)
UNDERWRITING AGREEMENT
Dated: [Date]
<PAGE>
BANK ONE CAPITAL [_]
(a Delaware business trust)
[____] Preferred Securities
[__%][Floating Rate] Preferred Securities
(Liquidation Amount of $[____] Per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
[Date]
[Name[s] of Underwriter[s]
As representatives of the several Underwriters
[to be determined]
Ladies and Gentlemen:
BANK ONE CAPITAL [_] (the "Trust"), a statutory business trust organized
-----
under the Business Trust Act of the State of Delaware (Chapter 38, Title 12, of
the Delaware Code, 12 Del. C. (S)(S) 3801 et seq.) (the "Delaware Act") and BANK
-- --- ------------
ONE CORPORATION, a Delaware corporation (the "Company" and, together with the
-------
Trust, the "Offerors") confirm their agreement (the "Agreement") with [to be
-------- ---------
determined] and each of the other Underwriters named in Schedule A hereto
----------
(collectively, the "Underwriters", which term shall also include any underwriter
------------
substituted as hereinafter provided in Section 10 hereof), for whom [to be
determined] are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Trust and the
---------------
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of [__%][Floating Rate] Preferred Securities (liquidation
amount of $____ per preferred security) of the Trust (the "Preferred
---------
Securities") set forth in said Schedule A, and with respect to the grant by the
----------
Trust to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of the additional
Preferred Securities to cover over-allotments, if any. The aforesaid [______]
Preferred Securities (the "Initial Securities") to be purchased by the
------------------
Underwriters and all or any part of the [______] Preferred Securities subject
to the option described in Section 2(b) hereof (the "Option Securities") are
-----------------
hereinafter called, collectively, the "Designated Securities." The Securities
---------------------
will be guaranteed by the Company with respect to distributions and payments
upon liquidation, redemption and otherwise (the "Preferred Securities
--------------------
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
- ---------
"Preferred Securities Guarantee Agreement"), dated as of [date], between the
----------------------------------------
Company and The Chase Manhattan Bank, as Trustee (the "Guarantee Trustee"). The
-----------------
Preferred Securities and the related Preferred Securities Guarantees are
referred to herein as the "Securities".
----------
1
<PAGE>
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered. The entire proceeds from the
sale of the Securities will be combined with the entire proceeds from the sale
by the Trust to the Company of its common securities (the "Common Securities")
-----------------
guaranteed by the Company, to the extent set forth in the Prospectus (as defined
herein), with respect to distributions and payments upon liquidation, and
redemption (the "Common Securities Guarantee" and together with the Preferred
---------------------------
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
----------
Guarantee Agreement (the "Common Securities Guarantee Agreement" and, together
-------------------------------------
with the Preferred Securities Guarantee Agreement, the "Guarantee Agreements"),
--------------------
dated as of [date] executed and delivered by the Company for the benefit of the
holders of the Common Securities, and will be used by the Trust to purchase
$[_____] aggregate principal amount of Junior Subordinated Deferrable Interest
Debentures due [date] (the "Subordinated Debt Securities") to be issued by the
----------------------------
Company and, if all or any part of the Option Securities are purchased, up to
approximately an additional $[_____] aggregate principal amount of Subordinated
Debt Securities (the "Option Subordinated Debt Securities"). The Preferred
-----------------------------------
Securities and the Common Securities will be issued pursuant to the amended and
restated declaration of trust of the Trust, dated as of [date] (the
"Declaration"), among the Company, as Sponsor, the trustees named therein (the
-----------
"Trustees") and the holders from time to time of undivided beneficial interests
--------
in the assets of the Trust. The Subordinated Debt Securities will be issued
pursuant to an indenture, dated as of January 1, 1997, among the Company and The
Chase Manhattan Bank, as trustee (the "Debt Trustee") (the "Base Indenture"),
------------ --------------
and a supplement thereto, dated as of [date] (the "Supplemental Indenture," and
----------------------
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), among the Company and the Debt Trustee.
---------
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a shelf registration statement on Form S-3 (File No. 333-[_____])
----------
covering the registration of, among other securities, (i) the Preferred
Securities, (ii) the Preferred Securities Guarantee and (iii) the Subordinated
Debt Securities under the Securities Act of 1933, as amended (the "1933 Act"),
--------
which permits the delayed or continuous offering of securities pursuant to Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
----
Act Regulations"). Promptly after execution and delivery of this Agreement, the
- ---------------
Offerors will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 424(b) ("Rule 424(b)") of the 1933 Act Regulations or (ii) if
-----------
the Offerors have elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
--------
Regulations, prepare and file a term sheet (a "Term Sheet") in accordance with
----------
the provisions of Rule 434 and Rule 424(b). The information included in such
Term Sheet that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective is referred to as "Rule 434 Information." Each
--------------------
prospectus used before such Rule 424(b) prospectus has been filed and any
prospectus that omitted the Rule 434 Information, in each case that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
----------------------
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 434
Information is herein called the "Registration Statement." Any registration
----------------------
2
<PAGE>
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement" and after such filing
----------------------------------
the term "Registration Statement" shall include the Rule 462 (b) Registration
----------------------
Statement. The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the "Prospectus." If Rule 434 is relied on,
the term "Prospectus" shall refer to the preliminary prospectus together with
the Term Sheet and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
-----
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
--------
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties. The Offerors jointly and
------------------------------
severally represent and warrant to each Underwriter as of the date hereof and as
of the applicable delivery date, if any (each such date being hereinafter
referred to as a "Delivery Date"), as follows:
--------------
a. Compliance with Registration Requirements. The Company meets
-----------------------------------------
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement became effective
and at the Delivery Date, the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, the 1934 Act,
the regulations of the Commission under the 1934 Act (the "1934 Act
--------
Regulations"), and the Trust Indenture Act of 1939 (the "1939 Act") and the
----------- --------
rules and regulations of the Commission under the 1939 Act (the "1939 Act
--------
Regulations"), and did not and will not contain
-----------
3
<PAGE>
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus as amended or supplemented, if applicable,
at the Delivery Date and at the Closing Time referred to in Section 2
hereof, will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Offerors in writing by any Underwriter through
[to be determined] expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of the Securities was, at the time of
such delivery, identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
b. Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time when they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations, as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at each Delivery Date, did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
c. No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse Effect"),
-----------------------
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) except for regular quarterly dividends on the
common stock, par value $0.01 per share, of the Company (the "Common
------
Stock") and the regular quarterly dividends on the Company's Preferred
-----
Stock with Cumulative and Adjustable Dividends, Series B ($100 stated
value), $0.01 par value; and Preferred Stock with Cumulative and Adjustable
Dividends, Series C ($100 stated value), $0.01 par value; in amounts per
share that are consistent with past practice or publicly announced
increases prior
4
<PAGE>
to the date of the Registration Statement, there has been no dividend or
distribution of any kind declared, paid or made on any class of its Capital
Stock.
d. Good Standing of the Company and its Subsidiaries. The Company
-------------------------------------------------
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the state of Delaware, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each Significant Subsidiary (as
defined in Regulation S-X promulgated by the Commission) of the Company has
been duly incorporated chartered or organized and is validly existing as a
corporation or national banking association, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
organization.
e. Capitalization. The authorized, issued and outstanding capital
--------------
stock of the Company is as set forth in the Prospectus Supplement in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus or as otherwise described in the Prospectus).
f. Authorization and Description of Designated Securities. The
------------------------------------------------------
Designated Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; the Designated Securities conform to the statements
relating thereto contained in the Prospectus and such description conforms
to the rights set forth in the instruments defining the same; the holders
of the Designated Securities (the "Security holders") will be entitled to
----------------
the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware; and the issuance of the Designated Securities is
not subject to the preemptive or other similar rights of any security
holder of the Company.
g. Authorization and Description of Common Securities. The Common
--------------------------------------------------
Securities have been duly and validly authorized by the Trust and upon
delivery by the Trust to the Company against payment therefor as described
in the Prospectus, will be duly and validly issued and fully paid and non-
assessable undivided beneficial interests in the assets of the Trust and
will conform to the description thereof contained in the Prospectus; the
issuance of the Common Securities is not subject to preemptive or other
similar rights; and at each Delivery Date, all of the issued and
outstanding Common Securities of the Trust will
5
<PAGE>
be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
h. Good Standing of the Trust. The Trust has been duly created and
--------------------------
is validly existing as a statutory business trust in good standing under
the Delaware Act with the power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus, and the
Trust has conducted no business to date, and it will conduct no business in
the future that would be inconsistent with the description of the Trust set
forth in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Declaration and the
agreements and instruments contemplated by the Declaration; the Trust has
no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Declaration and
described in the Prospectus; and the Trust is not a party to or subject to
any action, suit or proceeding of any nature.
i. Absence of Defaults and Conflicts. The issue and sale of the
---------------------------------
Preferred Securities and the Common Securities by the Trust, the compliance
by the Trust with all of the provisions of this Agreement, the purchase of
the Subordinated Debt Securities by the Trust, and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, loan agreement, mortgage, deed of trust or other agreement
or instrument to which the Trust is a party or by which the Trust is bound
or to which any of the property or assets of the Trust is subject, nor will
such action result in any violation of the provisions of the Declaration or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Trust or any of its properties;
and no consent, approval, authorization, order, license, certificate,
permit, registration or qualification of or with any such court or other
governmental agency or body is required to be obtained by the Trust for the
issue and sale of the Preferred Securities and the Common Securities by the
Trust, the purchase of the Subordinated Debt Securities by the Trust or the
consummation by the Trust of the transactions contemplated by this
Agreement and the Declaration, except for such consents, approvals,
authorizations, licenses, certificates, permits, registrations or
qualifications as have already been obtained, or as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws or under
1939 Act.
The issuance by the Company of the Guarantees and the Subordinated
Debt Securities, the compliance by the Company with all of the provisions
of this Agreement, the execution, delivery and performance by the Company
of the Declaration, the Subordinated Debt Securities, the Guarantee
Agreements and the Indenture, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, loan agreement, mortgage, deed of
trust, or other material agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of
6
<PAGE>
the provisions of the Restated Certificate of Incorporation or by-laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its properties; and no consent, approval, authorization, order, license,
certificate, permit, registration or qualification of or with any such
court or other governmental agency or body is required for the issue of the
Guarantees and the Subordinated Debt Securities or the consummation by the
Company of the other transactions contemplated by this Agreement, except
for such consents, approvals, authorizations, licenses, certificates,
permits, registrations or qualifications as have already been obtained, or
as may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws or under the 1939 Act.
j. Authorization of Agreements. This Agreement, the Guarantee
---------------------------
Agreements, the Subordinated Debt Securities, the Declaration and the
Indenture have each been duly authorized and when validly executed and
delivered by the Company and, in the case of the Guarantee, by the
Guarantee Trustee, in the case of the Declaration, by the Trustees and, in
the case of the Indenture, by the Debt Trustee, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether enforcement is
sought in a proceeding at law or in equity); the Subordinated Debt
Securities are entitled to the benefits of the Indenture; and the Guarantee
Agreements, the Subordinated Debt Securities, the Declaration and the
Indenture conform to the descriptions thereof in the Prospectus.
k. Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
l. Investment Company Act. The Trust is not, and after giving
----------------------
effect to the offering and sale of the Preferred Securities will not be, an
"investment company," or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
----------------------
m. Legal or Governmental Proceedings. There are no legal or
---------------------------------
governmental proceedings pending or threatened to which the Trust or the
Company or any of its subsidiaries is a party or to which any of the
properties of the Trust or the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described.
n. Qualification of Agreements. Each of the Declaration, the
---------------------------
Indenture and the Preferred Securities Guarantee has been qualified under
the 1939 Act and has been duly authorized by the Company and the Trust, as
applicable.
7
<PAGE>
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
a. Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the price per security set forth in Schedule B, the number of Initial
----------
Securities set forth in Schedule A opposite the name of such Underwriter, plus
----------
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
b. Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions set
forth, the Trust hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional [______] Preferred Securities at the
price per Preferred Security set forth in Schedule B, less an amount per
----------
Preferred Security equal to any distributions declared by the Trust and payable
on the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution of
the Initial Securities upon notice by the Representatives to the Trust setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and a Delivery Date shall be determined
by the Representatives, but shall not be later than seven full business days
after the exercise of said option, nor in any event prior to the Closing Time,
as hereinafter defined. If the option is exercised as to all or any portion of
the Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of Option Securities
then being purchased which the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter bears to the total number of
- ----------
Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional Preferred Securities.
c. Commission. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Securities will be used to purchase the Subordinated Debt Securities of the
Company, the Company hereby agrees to pay to the Representatives, for the
accounts of the several Underwriters, a commission per security set forth in
Schedule B as compensation to the Underwriters for their commitments under this
- ----------
Agreement.
d. Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York
10022, or at such other place as shall be agreed upon by the Representatives and
the Offerors, at 10:00 A.M. (Eastern time) on the [fifth][third (fourth, if the
pricing occurs after 4:30 p.m. (Eastern time)] business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days
8
<PAGE>
after such date as shall be agreed upon by the Representatives and the Offerors
(such time and date of payment and delivery being herein called "Closing Time").
------------
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives,
the Company and the Trust, on each Delivery Date as specified in the notice from
the Representatives to the Trust.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. [To be determined], individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the Delivery Date, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
At the Closing Time and on each Delivery Date, the Company will pay, or
cause to be paid, the commission payable at such time to the Underwriters under
Section 2(b) hereof by wire transfer of immediately available funds to a bank
account designated by [to be determined].
e. Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Delivery Date, as the case
may be. The certificates for the Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Delivery Date, as the case may be.
SECTION 3. Covenants of the Offerors. Each of the Offerors jointly and
-------------------------
severally covenants with each Underwriter as follows:
a. Compliance with Securities Regulations and Commission Requests.
The Offerors, subject to Section 3(b), will comply with the requirements of
Rule 434 and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order
9
<PAGE>
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Offerors will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as they deem
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The
Offerors will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
b. Filing of Amendments. The Offerors will give the Representatives
notice of their intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
c. Delivery of Registration Statements. The Offerors have furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
d. Continued Compliance with Securities Laws. The Offerors will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when
a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriters or the Offerors, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary,
10
<PAGE>
in the opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will
promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Offerors will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters
may reasonably request.
e. Blue Sky Qualifications. The Offerors will use their best
efforts, in cooperation with the Underwriters, to qualify the Preferred
Securities and the Subordinated Debt Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as
the Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that each of the Offerors shall
not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Offerors will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
f. Rule 158. The Trust and the Company will make generally
available to their Security holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
g. Restriction on Sale of Securities. During a period of [_____]
days from the date of the Prospectus, neither the Trust nor the Company
will, without the prior written consent of [to be determined], directly or
indirectly, offer, sell, offer to sell, or otherwise dispose of any
Preferred Securities, any other beneficial interests in the assets of the
Trust, or any preferred securities or other securities of the Trust or the
Company which are substantially similar to the Preferred Securities,
including any guarantee of such securities. The foregoing sentence shall
not apply to any of the Securities to be sold hereunder.
h. Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
SECTION 3A. Covenants of the Underwriters. Each of the Underwriters
-----------------------------
represents and agrees as follows:
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a. Compliance with NASD Conduct Rules. The Underwriters will
comply with the provisions of Rule 2810 of the Conduct Rules of the
National Association of Securities Dealers, Inc. (the "NASD"), including,
----
without limitation, sections (b)(2)(B) and (b)(3)(D) thereof.
b. Sales in United Kingdom. Each Underwriter (a) has not offered
or sold and prior to the date six months after the date of issue of the
Preferred Securities will not offer or sell any Preferred Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their businesses or otherwise
in circumstances which do not constitute an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, (b) has complied, and will comply with, all applicable
provisions of the Financial Services Act of 1986 of Great Britain with
respect to anything done by it in relation to the Preferred Securities in,
from or otherwise involving the United Kingdom, and (c) has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issuance of the Preferred Securities
to a person who is of a kind described in Article 11(3) of the Financial
Services Act of 1986 (Investment Advertisements) (Exemptions) Order 1996 of
Great Britain (as amended) or is a person to whom the document may
otherwise lawfully be issued or passed on.
SECTION 4. Payment of Expenses. a. Expenses. The Company will pay
-------------------
all expenses incident to the performance of each Offeror's obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Preferred
Securities to the Underwriters, (iv) the fees and disbursements of the Company's
and the Trust's counsel, accountants and other advisors, (v) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(e) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by the NASD
of the terms of the sale of the Securities, (ix) the fees and expenses of the
Debt Trustee, including the fees and disbursements of counsel for the Debt
Trustee, in connection with the Indenture and the Subordinated Debt Securities,
(x) the fees and expenses of the Institutional Trustee and the Delaware Trustee
(each as defined in the Declaration), including the fees and disbursements of
counsel for the Institutional Trustee and the Delaware Trustee, in connection
with the Declaration and the Certificate of Trust, (xi) any fees charged by
securities
12
<PAGE>
rating services for rating the Preferred Securities and the Subordinated Debt
Securities, (xii) the fees and expenses of any transfer agent or registrar for
the Securities, (xiii) the cost of qualifying the Preferred Securities with The
Depository Trust Company; (xiv) the fees and expenses of the Preferred Guarantee
Trustee, including the fees and disbursements of counsel for the Preferred
Guarantee Trustee; and (xv) the fees and expenses incurred in connection with
the listing of the Preferred Securities and, if applicable, the Subordinated
Debt Securities on the New York Stock Exchange.
b. Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any officer of the Offerors or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Offerors
of their covenants and other obligations hereunder, and to the following further
conditions:
a. Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time or the relevant Delivery Date, as the case
may be, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of
the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. The Prospectus
shall have been filed with the Commission in accordance with Rule 424(b)
or, if the Offerors have elected to rely upon Rule 434, a Term Sheet shall
have been filed with the Commission in accordance with Rule 424(b).
b. Opinion of Counsel. At the Closing Time or the relevant
Delivery Date, as the case may be, the Representatives shall have received:
(i) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Sherman I. Goldberg,
Esq., General Counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, substantially
in the form set forth in Exhibit A.
---------
(ii) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of Skadden, Arps, Slate,
Meagher & Flom LLP ("SASM&F"), special Delaware counsel for the Offerors,
------
in form and substance satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit B.
---------
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<PAGE>
(iii) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of [to be determined],
counsel for the Institutional Trustee, in form and substance
satisfactory to counsel for the Underwriters, substantially in the
form set forth in Exhibit C.
---------
(iv) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of SASM&F, counsel for the
Underwriters, in form and substance satisfactory to the Underwriters.
(v) The favorable opinion, dated as of the Closing Time or the
relevant Delivery Date, as the case may be, of SASM&F, special tax
counsel for the Offerors, in form and substance satisfactory to the
Underwriters.
c. Officers' Certificate. At the Closing Time or the relevant
Delivery Date, as the case may be, since the date hereof or since the
respective dates as of which information is given in the Prospectus, there
shall not have been any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
either the Company and its subsidiaries considered as one enterprise, or
the Trust, as the case may be, whether or not arising in the ordinary
course of business and the Representatives shall have received a
certificate, dated as of the Closing Time or the relevant Delivery Date, as
the case may be, from each of (a) the President or a Vice President of the
Company and of the chief financial officer or chief accounting officer of
the Company and (b) a Regular Trustee (as defined in the Declaration) of
the Trust, to the effect that (i) there has been no such material adverse
change in the conditions of the Company or the Trust, as the case may be,
(ii) the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as
of Closing Time or the relevant Delivery Date, as the case may be, (iii)
the Company or the Trust, as the case may be, has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time or the relevant Delivery Date, as the
case may be, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are contemplated by the Commission.
d. Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from Arthur
Andersen LLP a letter dated such date, in form and substance satisfactory
to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
e. Bring-down Comfort Letter. At the Closing Time or the relevant
Delivery Date, as the case may be, the Representatives shall have received
from Arthur Andersen LLP
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<PAGE>
a letter, dated as of Closing Time or the relevant Delivery Date, as the
case may be, to the effect that they reaffirm the statements made in their
letter furnished pursuant to subsection (d) of this Section, except that
the specified date referred to shall be a date not more than three business
days prior to Closing Time or the relevant Delivery Date, as the case may
be.
f. Maintenance of Rating. At the Closing Time or the relevant
Delivery Date, as the case may be, the Preferred Securities and the
Subordinated Debt Securities shall be rated in one of the four highest
rating categories for long term debt ("Investment Grade") by Moody's
----------------
Investor's Service and by Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., and the Company shall have delivered to the
Representatives a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming
that the Preferred Securities and the Subordinated Debt Securities have
such ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to the Preferred Securities
or the Subordinated Debt Securities or any of the Company's other
securities by any "nationally recognized statistical rating agency," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such organization shall have publicly announced that
it has under surveillance or review its rating of the Preferred Securities
and the Subordinated Debt Securities or any of the Company's other
securities.
g. Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Preferred Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Offerors in connection with the issuance and sale of the
Preferred Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
h. Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Delivery Date which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Offerors at any time at or prior to Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
(i) Approval of Listing. At the Closing Time, the Preferred
Securities shall have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
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<PAGE>
SECTION 6. Indemnification.
---------------
a. Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 434 Information,
if applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by [to be determined]), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through [to be determined] expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that this indemnity agreement with
-------- -------
respect to any preliminary prospectus shall not inure to the benefit of any
underwriter from whom the person asserting any such losses, liabilities, claims,
damages or expenses purchased Securities, or any person controlling such
Underwriter, if the Offerors sustain the burden that a copy of the Prospectus
(as then amended or supplemented if the Offerors shall have furnished any such
amendments or supplements thereto), but excluding docu-
16
<PAGE>
ments incorporated or deemed to be incorporated by reference, was not sent or
given by or on behalf of such Underwriter to such person, if such is required by
law, at or prior to the written confirmation of the sale of such Securities to
such person and if the Prospectus (as so amended or supplemented, but excluding
documents incorporated or deemed to be incorporated by reference therein) would
have corrected the defect giving rise to such loss, liability, claim, damage or
expense, it being understood that this proviso shall have no application if
such defect shall have been corrected in a document which is incorporated or
deemed to be incorporated by reference in the Prospectus.
b. Indemnification of Offerors, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Offerors, their directors,
trustees, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Offerors within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Offerors by such Underwriter through [to be
determined] expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
c. Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by [to be determined], and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim
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and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Preferred
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities
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<PAGE>
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
----------
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this
Agreement or in certificates of officers or Trustees of the Offerors submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Offerors, and shall survive delivery of the
Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
a. Termination; General. The Representatives may terminate this
Agreement, by notice to the Offerors, at any time at or prior to Closing Time
(i) if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Designated Securities or to enforce
contracts for the sale of the Designated Securities, or (iii) if trading in any
securities of the Company has been suspended by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market System has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the NASD or any other governmental
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authority, or (iv) if a banking moratorium has been declared by either Federal
or New York or Illinois State authorities.
b. Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time or a Delivery Date to purchase the
Designated Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
--------------------
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
a. if the number of Defaulted Securities does not exceed 10% of
the number of Designated Securities, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
b. if the number of Defaulted Securities exceeds 10% of the number
of Designated Securities, this Agreement or, with respect to any Delivery
Date which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Offerors to the sell the Option
Securities shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, or, in the case of a Delivery Date which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Offerors shall have the
right to postpone Closing Time or the relevant Delivery Date, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of
20
<PAGE>
telecommunication. Notices to the Underwriters shall be directed to the
Representatives at [to be determined], Attention: [to be determined]; notices to
the Trust and the Company shall be directed to them at One First National Plaza,
Chicago, Illinois 60670, Attention: Secretary.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Underwriters and the Trust and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Trust and the Company and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Trust and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Trust a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Trust and the Company in accordance with its terms.
Very truly yours,
BANK ONE CAPITAL [_]
By__________________
Name:
Title:
BANK ONE CORPORATION
By__________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[Name[s] of Underwriter[s]]
By: [to be determined]
By_________________________
[Authorized Signatory]
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
- ----------
<PAGE>
SCHEDULE A
Number
Name of Underwriter of Securities
------------------- -------------
--------
Total ...........................................
========
Sch A-1
<PAGE>
SCHEDULE B
BANK ONE CAPITAL [_]
[_____] Preferred Securities
[__%] [Floating Rate] Preferred Securities
(Liquidation Amount of $[_____] Per Preferred Security)
1. The initial public offering price per security for the Preferred
Securities, determined as provided in Section 2, shall be $ [_____].
2. The purchase price per security for the Preferred Securities to be
paid by the several Underwriters shall be $[_____], being an amount equal to the
initial public offering price set forth above; provided that the purchase price
per Preferred Security for any Option Securities purchased upon exercise of the
over-allotment option described in Section 2(b) shall be increased by an amount
per Preferred Security equal to any accrued distributions through the Delivery
Date on which such Option Securities are purchased.
3. The commission per Preferred Security to be paid by the Company to the
Underwriters for their commitments hereunder shall be $[_____] per Preferred
Security.
Sch B-1
<PAGE>
Exhibit A
FORM OF OPINION OF SHERMAN I. GOLDBERG, ESQ.
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
A-1
<PAGE>
Exhibit B
FORM OF OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
B-1
<PAGE>
Exhibit C
FORM OF OPINION OF [TO BE DETERMINED]
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(iii)
C-1
<PAGE>
EXHIBIT 5.2
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK 10022-3897
TEL: (212) 735-3000
FAX: (212) 735-2000
July 6, 1999
BANK ONE Capital I
BANK ONE Capital II
BANK ONE Capital III
BANK ONE Capital IV
BANK ONE Capital V
c/o Bank One Corporation
One First National Plaza
Chicago, Illinois 60670
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel to BANK ONE Capital I, BANK
ONE Capital II, BANK ONE Capital III, BANK ONE Capital IV and BANK ONE Capital V
(each, a "Trust" and, together, the "Trusts"), each a statutory business trust
created under the Business Trust Act of the State of Delaware (Del. Code Ann.,
tit. 12, (S)(S) 3801 et seq.), in connection with the preparation of the
Registration Statement on Form S-3 (File No. 333-80903) filed by Bank One
Corporation (the "Company") and each Trust for the registration under the
Securities Act of 1933, as amended (the "Act"), of, among other
<PAGE>
BANK ONE Corporation
BANK ONE Capital I
BANK ONE Capital II
BANK ONE Capital III
BANK ONE Capital IV
BANK ONE Capital V
July 6, 1999
Page 2
securities, preferred securities (the "Preferred Securities") of each Trust (the
"Registration Statement").
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to them in the Registration
Statement.
The Preferred Securities of each Trust are to be issued pursuant to an
Amended and Restated Declaration of Trust of each Trust (each, a "Declaration"),
among the Company, as Sponsor and as the issuer of certain debentures to be held
by the Institutional Trustee (as defined below), The Chase Manhattan Bank, as
Institutional Trustee (the "Institutional Trustee"), Chase Manhattan Bank
Delaware, as Delaware trustee, and M. Eileen Kennedy and Robert A. Rosholt, as
regular trustees. The Preferred Securities will be guaranteed by the Company
with respect to distributions and payments upon liquidation and redemption
pursuant to and to the extent set forth in a Preferred Securities Guarantee,
between the Company, as guarantor, and The Chase Manhattan Bank, as guarantee
trustee, for the benefit of the holders of the Preferred Securities.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement filed with the Securities and Exchange Commission (the "Commission")
on June 17, 1999, and Amendment No. 1 thereto, to be filed with the Commission
by the Company and each Trust on July 6, 1999; (ii) the Certificate of Trust of
each Trust filed with the Secretary of State of the State of Delaware on June
17, 1999; (iii) the form of Declaration of each Trust, filed as an exhibit to
the Registration Statement; (iv) the form of the Preferred Securities, and (v)
the form of Underwriting Agreement with respect to the
<PAGE>
BANK ONE Corporation
BANK ONE Capital I
BANK ONE Capital II
BANK ONE Capital III
BANK ONE Capital IV
BANK ONE Capital V
July 6, 1999
Page 3
Preferred Securities of each Trust. We have also reviewed with you such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed or to be executed by parties other than each Trust, we have
assumed that such parties had or will have the power, corporate or other, to
enter into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and that such documents constitute or
will constitute valid and binding obligations of such parties. We have also
assumed that the Declaration of each Trust and the Underwriting Agreement with
respect to the Preferred Securities of each Trust will be executed and delivered
in substantially the forms reviewed by us. As to any facts material to the
opinions expressed herein which were not independently established or verified,
we have relied upon oral or written statements and representations of officers,
trustees and other representatives of each Trust, the Company and others.
We do not express any opinion as to the laws of any jurisdiction other
than the Business Trust Act of the State of Delaware.
Based on and subject to the foregoing and to the other assumptions,
qualifications and limitations set forth herein, we are of the opinion that when
(i) the Registration Statement becomes effective; (ii) the Declaration of each
Trust and the Underwriting Agreement with respect to the Preferred Securities of
each Trust have been duly executed and delivered by the parties thereto; and
(iii) the terms of the Preferred Securities of each Trust have been duly
established in accordance with the Declaration of such Trust and such Preferred
Securities have been duly executed and authenticated in accordance with the
Declaration
<PAGE>
BANK ONE Corporation
BANK ONE Capital I
BANK ONE Capital II
BANK ONE Capital III
BANK ONE Capital IV
BANK ONE Capital V
July 6, 1999
Page 4
of such Trust and delivered to and paid for by the underwriters as contemplated
by the relevant Underwriting Agreement, the Preferred Securities of each
Trust will have been duly authorized for issuance and will be validly issued,
fully paid and nonassessable, representing undivided beneficial ownership
interests in each Trust, and the holders of such Preferred Securities will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We bring to your attention, however, that the holders
of the Preferred Securities of each of the Trusts may be obligated, pursuant to
the Declaration of such Trust, to (i) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from transfers of
Preferred Securities and (ii) provide security and indemnity in connection with
the requests of or directions to the Institutional Trustee of each Trust to
exercise its rights and powers under the Declaration.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.2 to the Registration Statement. We also hereby consent to the use of
our name under the heading "Legal Matters" in the prospectus. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder. This opinion may not be
used, circulated, quoted or otherwise referred to for any other purpose or
relied upon by any other person for any purpose without our prior written
consent. This opinion is expressed as of the date hereof unless otherwise
expressly stated, and we disclaim any undertaking to advise you of any
subsequent changes in the facts stated or assumed herein or of any subsequent
changes in applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
<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 Amendment No. 1 to 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,
July 2, 1999
