Filed with the Securities and Exchange Commission on March 28, 1994
Registration No 33-52413
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
Pre-effective Amendment No. 3
Form S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BANC ONE CORPORATION
(Exact Name of Registrant as specified in Charter)
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Columbus, State of Ohio,
on March 28, 1994.
BANC ONE CORPORATION
By: ROMAN J. GERBER
Roman J. Gerber
Executive Vice President
POWER OF ATTORNEY
We, the undersigned officers and directors of BANC ONE CORPORATION, hereby
severally constitute and appoint Roman J. Gerber, George R. L. Meiling and
William C. Leiter, our true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for us and in our stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and all documents relating thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing necessary or advisable to be
done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
WITNESS our hands and common seal on the dates set forth below.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
* Chairman of the Board
John B. McCoy (Principal Executive Officer
& Director)
* President and Director
Donald L. McWhorter
* Senior Vice President
Frederick L. Cullen (Principal Financial Officer)
* Controller (Principal
William C. Leiter Accounting Officer)
* Director
Charles E. Exley
* Director
E. Gordon Gee
* Director
John R. Hall
* Director
Laban P. Jackson, Jr.
* Director
John G. McCoy
* Director
Rene C. McPherson
* Director
Thekla R. Shackelford
* Director
Frederick P. Stratton, Jr.
Director
Romeo J. Ventres
* Director
Robert D. Walter
* By: ROMAN J. GERBER
Roman J. Gerber
Attorney-in-Fact
EXHIBIT INDEX
Exhibit 2.1 Merger Agreement dated September 17, 1993, by and among CAPITAL
BANCORP, Banc One Arizona Corporation and BANC ONE CORPORATION,
as amended, including the Bank Merger Agreement dated
December 14, 1993, by and among Bank One, Utah, N.A. and Capital
City Bank*
Exhibit 2.3 Form of Proxies to be used by CAPITAL BANCORP and Capital City
Bank*
Exhibit 5 Opinion of Roman J. Gerber, General Counsel for BANC ONE
CORPORATION, regarding the legality of securities being offered,
including consent*
Exhibit 8 Opinions of Gerrish & McCreary, P.C. regarding the Federal income
tax consequences of the Merger and Consolidation, including
consent.
Exhibit 23 Consents of Coopers & Lybrand and KPMG Peat Marwick*
* These exhibits were previously filed with the original S-4 Registration
Statement
GERRISH & MCCREARY, P.C.
Attorneys
Washington Square
222 Second Avenue North, Suite 424
Nashville, Tennessee 37201
February 11, 1994
Shareholders of Capital Bancorp
Capital Bancorp
2200 South State Street
Salt Lake, Utah 84115
Banc One Corporation
100 East Broad Street
Columbus, Ohio 43271-0152
Ladies and Gentlemen:
You have requested our opinion as to certain federal income tax consequences
resulting from the merger of Capital Bancorp ("Capital") with and into Banc One
Arizona Corporation ("Banc One Arizona") as set forth and more fully described
in the Agreement and Plan of Merger between Capital and Banc One Arizona and
joined in by Banc One CORPORATION ("Banc One"), dated September 17, 1993, as
amended (the "Agreement") including exhibits attached thereto.
We have acted as special counsel to Capital with respect to the merger of
Capital into Banc One Arizona (the "Holding Company Merger"). In this
capacity, we have examined the Agreement and the Registration Statement (Form
S-4) pursuant to which Banc One is issuing additional shares of its common
stock, without par value, to the stockholders of Capital pursuant to the merger
of Capital with and into Banc One Arizona. All capitalized terms used herein
shall, except where the context indicates otherwise, be deemed to have the
meanings assigned to such terms in the Registration Statement and the Agreement.
In reaching our opinion, we have relied on certain representations made by the
management of Banc One, Banc One Arizona, and Capital Bancorp, including the
representations and warranties and undertakings in the Agreement, and have
examined such documents, records and other instruments as we have deemed
necessary or appropriate, including, without limitations, the Registration
Statement and the Agreement. We have assumed that Banc One has previously been
and will be in the future maintained and operated in conformance with the laws
of the State of Ohio and the terms of the aforementioned documents. We have
also assumed that Banc One Arizona has previously been and will be in the
future maintained and operated in conformance with the laws of the State of
Arizona and the terms of the aforementioned documents.
Banc One is a registered bank holding company organized and existing under the
laws of the State of Ohio. Banc One has authorized capital stock consisting of
635,000,000 shares consisting of 600,000,000 shares of common stock without par
value ("Banc One Common Stock") of which 341,965,620 shares were issued and
outstanding at September 17, 1993 and 35,000,000 shares of preferred stock of
which 5,000,000 were issued and outstanding as of such date. Up to 4,405,854
shares of Banc One Common Stock are subject to options. It is anticipated that
not more than approximately 353,461 shares of Banc One Common Stock will be
issued pursuant to the Holding Company Merger. In addition, it is anticipated
that not more than approximately 80,389 shares of Banc One Common Stock will be
issued in connection with the Merger of Capital City Bank with and into Bank
One, Utah, N.A. (the "Bank Merger").
Capital is a bank holding company duly organized and existing under the laws of
the State of Utah and has authorized capital stock consisting of 200,000 shares
of common stock, par value $10.00 per share ("Capital Common Stock"), of which
150,345 shares are issued and outstanding and 2,805 of which are shares of
treasury stock owned by Capital.
Banc One Arizona is an Arizona corporation duly organized and existing under
the laws of the State of Arizona. Banc One owns 100% of the outstanding shares
of stock of Banc One Arizona.
Other than noted above, there are no outstanding securities or obligations
which are convertible into shares of stock or options, warrants, rights, calls
or any other commitments of any nature relating to the unissued shares of Banc
One, Capital, or Banc One Arizona.
Pursuant to the Agreement at the Effective Date of the Merger, the following
transactions will be consummated:
1. Capital shall merge with and into Banc One Arizona whereby each share of
$10.00 par value Capital Common Stock issued and outstanding, other than
shares whose holders have perfected their rights to dissent from the
Merger, shall be converted into and exchanged for up to 353,461 shares of
newly issued Banc One Common Stock without par value. Banc One Arizona
shall survive the Merger and the former stockholders of Capital shall
become stockholders of Banc One. No fractional shares of Banc One Common
Stock shall be issued. The former Capital stockholders entitled to
fractional shares of Banc One Common Stock shall be paid cash by Banc One
for such fractional shares, the value of which shall be computed by
multiplying the fraction thereof by the "Average Price" of Banc One Common
Stock. The "Banc One Average Price" is the average of the daily market
price of Banc One Common Stock during a ten (10) day period preceding the
Effective Time of the Merger as set forth in Section 7(a) of the Agreement.
2. The Merger is subject to various conditions including, among others,
approval by a majority of the stockholders of Capital at the Capital
Special Meeting and approval by all applicable regulatory authorities.
This opinion is conditioned on the following assumptions and representations
being made by the management of Banc One, Banc One Arizona and Capital in
connection with the Merger transaction at or before closing:
1. The Merger shall be consummated pursuant to and in accordance with the
Agreement.
2. The fair market value of newly issued Banc One Common Stock without par
value to be received by Capital stockholders will be, in each instance,
approximately equal to the fair market value of the Capital Common Stock to
be surrendered in exchange therefor.
3. After consummation of the Merger transaction, Banc One Arizona will
continue its historical business in a substantially unchanged manner.
4. The management of Capital knows of no plan or intention by the stockholders
of Capital who own 5% or more of the Capital Common Stock or on the part of
the remaining stockholders of Capital to sell or otherwise dispose of a
number of shares of Banc One Common Stock to be received in the Merger
transaction that would reduce the Capital stockholders' ownership of Banc
One Common Stock to a number of shares having a value as of the date of the
Merger, of less than fifty (50) percent of the value of the formerly
outstanding Capital Common Stock as of the same date. For purposes of this
representation, shares of Capital Common Stock exchanged for cash or other
property, surrendered by dissenters or exchanged for cash in lieu of
fractional shares of Banc One Common Stock will be treated as outstanding
Capital Common Stock on the date of the transaction. Moreover, shares of
Capital Common Stock and shares of Banc One Common Stock held by Capital
stockholders and otherwise sold, redeemed, or disposed of prior or
subsequent to the merger transaction will be considered in making this
representation.
5. Banc One Arizona will acquire at least 90% of the fair market value of the
net assets and at least 70% of the fair market value of the gross assets
held by Capital immediately prior to the Effective Date of the Merger. For
purposes of this representation, amounts paid by Capital to dissenters,
amounts paid by Capital to stockholders who receive cash or other property,
Capital assets used to pay its reorganization expenses, and all redemptions
and other distributions (except for regular, normal dividends) made by
Capital immediately preceding the transfer, will be included as assets of
Capital held immediately prior to the transaction.
6. Prior to the transaction, Banc One will be in control of Banc One Arizona
within the meaning of Section 268(c) of the Internal Revenue Code.
7. Following the transaction, Banc One Arizona will not issue additional
shares of its stock that would result in Banc One losing control of Banc
One Arizona within the meaning of Section 368(c) of the Code.
8. Banc One has no plan or intention to reacquire any of its stock issued in
this transaction.
9. Banc One has no plan or intention to liquidate Banc One Arizona, to merge
Banc One Arizona with and into another corporation, to sell or otherwise
dispose of the stock of Banc One Arizona or to cause Banc One Arizona to
sell or otherwise dispose of any of the assets of Capital acquired in the
transaction, except for dispositions made in the ordinary course of
business or transfers described in Section 368(a)(2)(c) of the Code.
10. The liabilities of Capital assumed by Banc One Arizona and the liabilities
to which the transferred assets of Capital are subject were incurred by
Capital in the ordinary course of its business.
11. Following the transaction, Banc One Arizona will continue the historic
business of Capital or use a significant portion of Capital's historical
business assets in its business.
12. Each Party to the Agreement will pay its own expenses incurred in
connection with the Merger including the cost of soliciting proxies for the
Capital Special Meeting. Printing costs and expenses incurred in
connection with the Proxy Statement/Prospectus and the associated Banc One
Registration Statement to be filed with the Securities and Exchange
Commission of which the Proxy Statement/Prospectus forms a part will be
paid by Banc One and/or Banc One Arizona.
If the Merger is not consummated for any reason, except if one Party
breaches the agreement, Banc One and Capital each agree to pay the expenses
arising from the negotiation and preparation of, and filings and
solicitations with respect to the Agreement and the transactions
contemplated by such Agreement as follows: Each party will pay its own
expenses, except that Banc One will pay the costs of printing the proxy
material.
13. There is no intercorporate indebtedness existing between Banc One and
Capital or between Banc One Arizona and Capital that was issued, acquired,
or will be settled at a discount.
14. No two parties to the transaction are investment companies as defined in
Section 368(a)(2)(F)(iii) and (iv) of the Code.
15. Capital, Banc One or Banc One Arizona is not under the jurisdiction of a
court in a Title 11 or similar case within the meaning of Section
368(a)(3)(A) of the Code.
16. The fair market value of the assets of Capital transferred to Banc One
Arizona will equal or exceed the sum of the liabilities assumed by Banc One
Arizona, plus the amount of liabilities, if any, to which the transferred
assets are subject.
17. No stock of Banc One Arizona will be issued in the transaction.
18. None of the compensation received by any stockholder-employee of Capital
will be separate consideration for, or allocable to, any of their shares of
Capital stock; none of the shares of Banc One stock received by any
stockholder-employee will be separate consideration for, or allocable to,
any employment agreement; and the compensation paid to any stockholder-
employee will be for services actually rendered and will be commensurate
with amounts paid to third parties bargaining at arm's-length for similar
services.
Based solely on the information submitted and on the representations set forth
above our opinion is as follows:
1. Provided the proposed merger of Capital with and into Banc One Arizona
qualifies under Utah and Arizona law, the acquisition by Banc One Arizona
of substantially all of the assets of Capital solely in exchange for Banc
One Common Stock and the assumption by Banc One Arizona of the liabilities,
will qualify as a reorganization under the provisions of Sections
368(a)(1)(A) and 368(a)(2)(D) of the Internal Revenue Code. For purposes
of this opinion, "substantially all" means at least 90% of the fair market
value of the net assets and at least 70% of the fair market value of the
gross assets of Capital held immediately prior to the proposed
transaction. Capital, Banc One and Banc One Arizona will each be "a party
to a reorganization" within the meaning of Section 368(b).
2. No gain or loss will be recognized by Capital upon the transfer of
substantially all of its assets to Banc One Arizona in exchange for Banc
One Common Stock and the assumption of Capital's liabilities by Banc One
Arizona (Sections 361 and 357(a)).
3. No gain or loss will be recognized by either Banc One or Banc One Arizona
upon the acquisition by Banc One Arizona of substantially all of the assets
of Capital in exchange for Banc One's Common Stock and the assumption of
Capital's liabilities (Rev. Rul. 57-278, 1957-1 C.B. 124).
4. The federal income tax basis of the assets of Capital acquired by Banc One
Arizona will be the same in the hands of Banc One Arizona as the basis of
such assets in the hands of Capital immediately prior to the exchange
(Section 362(b)).
5. The basis of the Banc One Arizona Common Stock in the hands of Banc One
will be increased by an amount equal to the basis of the Capital assets in
the hands of Banc One Arizona and decreased by the sum of the amount of the
liabilities of Capital assumed by Banc One Arizona and the amount of
liabilities to which the assets of Capital are subject.
6. The holding period of the assets of Capital received by Capital will, in
each instance, include the period for which such assets were held by
Capital (Section 1223(2)).
7. No gain or loss will be recognized to the stockholders of Capital upon the
exchange of Capital stock solely for Banc One Common Stock (Section
354(a)(1).
8. The basis of the Banc One Common Stock received by the stockholders of
Capital will be the same as the basis of the Capital stock surrendered in
exchange therefor (Section 358(a)(1)).
9. The holding period of the Banc One Common Stock received by the
stockholders of Capital will include the period during which Capital stock
surrendered therefor was held, provided the stock of Capital is a capital
asset in the hands of the stockholders of Capital on the date of the
exchange (Section 1223(1)).
10. As provided by Section 381(c)(2) of the Code and Section 1.381(c)(2)-1 of
the Income Tax Regulations, Banc One Arizona will succeed to and take into
account the earnings and profits, or deficit in earnings and profits, of
Capital as of the date of transfer. Any deficit in the earnings and
profits of Capital or Banc One Arizona will be used only to offset the
earnings and profits accumulated after the date of transfer.
11. Where a dissenting Capital stockholder receives cash in exchange for his or
her stock, such cash will be treated as having been received by the
stockholder as a distribution in redemption of his or her stock subject to
the provisions and limitations of Section 302 of the Code. Rev. Rul.
74-515, 1974-2 C.B. 118.
No opinion in expressed about the tax treatment of the Merger transaction under
other provisions of the Code and regulations or about the federal income tax or
state income tax treatment of any conditions existing at the time of, or other
tax consequences resulting from the Merger transaction that are not
specifically covered above.
No opinion is expressed herein with regard to the tax treatment of the merger
of Capital City Bank into Bank One, Utah, N.A.
This opinion is addressed only to you and concerns only the transaction
described above. This opinion may be relied upon only by Capital, Banc One,
Banc One Arizona and the stockholders of Capital.
We consent to the inclusion of this opinion in the Registration Statement (Form
S-4) of Banc One relating to the Merger and to the reference to our firm under
the caption "Legal Matters" in the Prospectus/Proxy Statement which is part of
the Registration Statement.
Very truly yours,
GERRISH & McCREARY, P.C.
GERRISH & MCCREARY, P.C.
GERRISH & McCREARY, P.C.
Attorneys
700 Colonial Road, Suite 200
Memphis, Tennessee 38117
P.O. Box 242120
Memphis, Tennessee 38124-2120
Telephone: (901) 767-0900
Telecopier: (901) 684-2339
March 25, 1994
Shareholders of Capital City Bank
Capital Bancorp
2200 South State Street
Salt Lake, Utah 84115
Banc One Corporation
100 East Broad Street
Columbus, Ohio 43271-0152
Ladies and Gentlemen:
You have requested our opinion as to certain federal income tax
consequences resulting from the merger of Capital City Bank with
and into Bank One Utah (the "Bank Merger") which will follow the
merger of Capital Bancorp ("Capital") with and into Banc One
Arizona Corporation ("Banc One Arizona") all as set forth and more
fully described in the Agreement and Plan of Merger between Capital
and Banc One Arizona and joined in by Banc One Corporation ("Banc
One"), dated September 17, 1993 (the "Agreement") including the
exhibits attached thereto. This opinion is in addition to the
opinion issued by this firm dated February 11, 1994 with regard to
tax consequences related to the merger of Capital and Banc One
Arizona, which opinion is not amended or modified hereby in any
way.
We have acted as special counsel to Capital with respect to the
merger of Capital into Banc One Arizona (the "Holding Company
Merger"). In this capacity, we have examined the Agreement and the
Registration Statement (Form S-4) pursuant to which Banc One is
issuing additional shares of its common stock, without par value,
to the stockholders of Capital pursuant to the merger of Capital
with and into Banc One Arizona. All capitalized terms used herein
shall, except where the contest indicates otherwise, be deemed to
have the meanings assigned to such terms in the Registration
Statement and the Agreement. The Bank Merger which is the subject
of this opinion is specifically described in the Bank Merger
Agreement attached to the Agreement as Exhibit B.
In reaching our opinion, we have relied on certain representations
made by the management of Banc One, Banc One Arizona, and Capital
Bancorp, including the representations and warranties and
undertakings in the Agreement, and have examined such documents,
records and other instruments as we have deemed necessary or
appropriate, including, without limitation, the Registration
Statement and the Agreement.
Banc One is a registered holding company organized and existing
under the laws of the State of Ohio. Banc One has authorized
capital stock consisting of 635,000,000 shares consisting of
600,000,000 shares of common stock without par value ("Banc One
Common Stock") of which 341,965,620 shares were issued and
outstanding at September 17, 1993 and 35,000,000 shares of
preferred stock of which 5,000,000 were issued and outstanding as
of such date. Up to 4,405,854 shares of Banc One Common Stock are
subject to options. It is anticipated that not more than
approximately 353,461 shares of Banc One Common Stock will be
issued pursuant to the Holding Company Merger. In addition, it is
anticipated that not more than approximately 80,389 shares of Banc
One Common Stock will be issued in connection with the Merger of
Capital City Bank with and into Bank One, Utah, N.A. (the "Bank
Merger").
Capital is a bank holding company duly organized and existing under
the laws of the State of Utah and has authorized capital stock
consisting of 200,000 shares of common stock, par value $10.00 per
share ("Capital Common Stock"), of which 150,345 shares are issued
and outstanding and 2,805 of which are shares of treasury stock
owned by Capital.
Banc One Arizona is an Arizona corporation duly organized and
existing under the laws of the State of Arizona. Banc One owns
100% of the outstanding shares of stock of Banc One Arizona.
Bank One, Utah, N.A. is a national banking association organized
and existing under the laws of the United States and has authorized
capital stock consisting of 870,919 shares of common stock, par
value of $35.00 per share ("Bank One Utah Common Stock"). All of
the issued and outstanding Bank One Utah Common Stock is owned by
Banc One Arizona.
Capital City Bank is a state bank organized and existing under the
laws of Utah and has authorized capital stock consisting of 200,000
shares of common stock having a par value of $10.00 per share ("CCB
Common") and 50,000 shares of non-voting, non-cumulative preferred
stock with a par value of $50.00 per share. As of the date hereof
there were 132,850 shares of CCB Common issued and outstanding and
24,000 of CCB Preferred issued and outstanding. Capital Bancorp
and certain minority shareholders own the shares of CCB Common.
Certain options to buy CCB Common are outstanding and will likely
to exercised prior to the Bank Merger. All outstanding Preferred
Stock will be redeemed prior to the Bank Merger.
Other than noted above, there are no outstanding securities or
obligations which are convertible into shares of stock or options,
warrants, rights, calls or any other commitments of any nature
relating to the unissued shares of Banc One, Capital, Banc One
Arizona, Capital City Bank or Bank One Utah.
Pursuant to the Agreement at the Effective Date of the Merger, the
following transactions will be consummated:
1. Capital shall merge with and into Banc One Arizona as set
forth in the Agreement.
2. Immediately following the merger of Banc One Arizona and
Capital, the Bank Merger will occur, which will result in the
870,919 shares of Bank One Utah Common Stock to continue to be
held by Banc One Arizona (the "Continuing Bank") and each of
the 114,768 shares of CCB Common which shall be owned by
Capital or Banc One Arizona immediately prior to the Bank
Merger shall be cancelled and shall not represent or continue
as capital stock of the Continuing Bank and shall not be
exchanged for shares of Banc One Common. All of the shares of
CCB Common held by Capital City Bank as treasury shares
immediately prior to the Bank Merger shall be cancelled and
shall not represent capital stock of the Continuing Bank and
shall not be exchanged for shares of Banc One Common.
Each of the 25,999 shares of CCB Common that shall be issued and
outstanding immediately prior to the Effective Time and which is
held by a shareholder other than Capital or Banc One Arizona
(hereinafter, the "CCB Minority Shares") and which shall include
not only the 18,082 shares of CCB Common owned by minority
shareholders of CCB but also the 7,917 shares of CCB Common which
are acquired by a minority shareholder and received upon the
exercise of the CCB options prior to the Bank Merger shall be
cancelled and shall not represent or continue as capital stock of
the Continuing Bank, and at the Effective Time and without further
action shall be converted into shares of Banc One Common at the
Bank Exchange Rate which shall be calculated as set forth in the
Bank Merger Agreement.
This option is conditioned on certain assumptions and
representations being made by the management of Banc One, Banc One
Arizona and Capital in connection with the merger transaction at or
before closing which are set forth in our February 11, 1994 opinion
and are also relied on herein.
Based solely on the information submitted and on the
representations set forth above, it is held as follows:
1. Shareholders holding CCB Minority Shares who receive Banc One
Common in exchange for their Capital City Bank Stock as a
result of the Bank Merger will be treated as if he or she had
sold such Capital City Bank Stock in a taxable transaction and
as a result such shareholders will recognize a taxable gain or
a taxable loss for federal income tax purposes. Such
shareholder's gain or loss will be determined by the fair
market value of the Banc One Common as of the date of the Bank
Merger less such shareholder's cost or tax basis in the
Capital City Bank Stock.
2. When a holder of CCB Minority Shares receives a cash payment
in lieu of a fractional share, such cash payment will also be
treated as a sale of such fractional share and taxable gain or
loss will be recognized in an amount determined in the same
manner as set forth in Paragraph 1, above.
No opinion is expressed concerning any other federal income tax
consequences resulting from the Merger transaction under other
provisions of the Code or Treasury Regulations or concerning any
state income tax treatment resulting from the Merger transaction.
This opinion is addressed only to you and concerns only the
transaction described above. This opinion may be relied upon only
by Capital, Banc One, Banc One Arizona, Capital City Bank and Bank
One Utah and the stockholders of Capital City Bank.
We consent to the inclusion of this opinion in the Registration
Statement (Form S-4) of Banc One relating to the Merger and to the
reference to our firm under the caption "Legal Matters" in the
Prospectus/Proxy Statement which is part of the Registration
Statement.
Very truly yours,
GERRISH & McCREARY, P.C.
GERRISH & McCREARY, P.C.
