Filed with the Securities and Exchange Commission on January 18, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
F O R M S - 4
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
BANC ONE CORPORATION
(Exact name of Registrant as specified in its charter)
Ohio
(State or other jurisdiction of incorporation or organization)
6711
(Primary Standard Industrial Classification Code Number)
31-0738296
(I.R.S. Employer Identification No.)
100 East Broad Street, Columbus, Ohio 43271, (614) 248-5944
(Address, including Zip Code, and telephone number, including area code,
of Registrant's principal executive offices)
Roman J. Gerber, Esq., BANC ONE CORPORATION
100 East Broad Street, Columbus, Ohio 43271, (614) 248-5903
(Name, address, including Zip Code, and telephone number,
including area code, of agent for service)
With Copies to:
Fred A. Summer, Esq.
Squire, Sanders & Dempsey
41 South High Street
Columbus, Ohio 43215
(614) 365-2743
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after the effective date of this Registration
Statement and all other conditions to the merger of a wholly owned subsidiary of
the Registrant with and into FirsTier Financial, Inc. pursuant to the Merger
Agreement described in the enclosed Prospectus and Proxy Statement have been
satisfied or waived.
If the securities being registered on this Form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. +-+
+-+
Calculation of Registration Fee
Proposed Proposed
maximum maximum
Title of each class Amount offering aggregate Amount of
of securities to be price offering registration
to be registered registered(1) per unit(2) price(2) fee(2)
Common Stock 14,893,750 $39.00 $580,856,250 $200,297
(1) Based on an estimate of the maximum number of shares of common stock
of the Registrant to be issued in connection with the merger of a
wholly owned subsidiary of the Registrant with and into FirsTier
Financial, Inc.
(2) Estimated solely for purpose of computing the registration fee based
upon the average of the high and low sales prices of the Common
Stock, par value $5.00 per share, of FirsTier Financial, Inc. as
reported on the NASDAQ National Market System on January 13, 1994, in
accordance with Rule 457(f)(1) of the General Rules and Regulations
under the Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment 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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
BANC ONE CORPORATION
Cross Reference Sheet
Caption in Prospectus
Item of Form S-4 and Proxy Statement
A. Information about the Transaction
Item 1 - Forepart of Registration Outside Front Cover Page
Statement and Outside Front Cover Reference Sheet
Page of Prospectus
Item 2 - Inside Front and Outside Available Information; Incorpora-
Back Cover Pages of Prospectus tion by Reference; Table of
Contents
Item 3 - Risk Factors, Ratio of Information About the Transaction
Earnings to Fixed Charges and
Other Information
Item 4 - Terms of the Transaction Merger; Comparative Rights of
Shareholders
Item 5 - Pro Forma Financial Infor- Incorporation by Reference
mation
Item 6 - Material Contacts with Background of Transaction;
the Company Being Acquired [Incentive Compensation]
Item 7 - Additional Information *
Required for Reoffering by
Persons and Parties Deemed To Be
Underwriters
Item 8 - Interests of Named Interests of Named Experts and
Experts and Counsel Counsel
Item 9 - Disclosure of Commission *
Position on Indemnification for
Securities Act Liabilities
B. Information about the Registrant
Item 10 - Information with Respect Information about BANC ONE
to S-3 Registrants
Item 11 - Incorporation of Certain Incorporation of Certain Informa-
Information by Reference tion About BANC ONE by Reference;
Incorporation by Reference
Caption in Prospectus
Item of Form S-4 and Proxy Statement
Item 12 - Information with Respect *
to S-2 or S-3 Registrants
Item 13 - Incorporation of Certain *
Information by Reference
Item 14 - Information with Respect *
to Registrants Other Than S-2 or
S-3 Registrants
C. Information about the Company
Being Acquired
Item 15 - Information with Respect Information about FirsTier;
to S-3 Companies Incorporation of Certain
Information about FirsTier
by Reference; Incorporation by
Reference
Item 16 - Information with Respect *
to S-2 or S-3 Companies
Item 17 - Information with Respect *
to Companies Other Than S-2 or
S-3 Companies
D. Voting and Management Information
Item 18 - Information if Proxies, The Special Meeting of Shareholders;
Consents or Authorizations Are To Voting and Management Information;
Be Solicited Incorporation of Certain Informa-
tion About BANC ONE by Reference;
Incorporation of Certain Informa-
tion About FirsTier by Reference
Item 19 - Information if Proxies, *
Consents or Authorizations Are
Not To Be Solicited or in an
Exchange Offer
* Omitted because item is inapplicable or answer to item is negative
FIRSTIER FINANCIAL, INC.
, 1994
Dear Shareholder:
You are cordially invited to attend a Special Meeting of
Shareholders of FirsTier Financial, Inc. ("FIRSTIER") to be held at
[ ], Omaha, Nebraska 68102 on , 1994,
at _____ [a.m.][p.m.], local time.
The purpose of the meeting is to consider and vote upon approval of
an Agreement and Plan of Merger dated as of April 19, 1993, as
amended (the "Merger Agreement"), pursuant to which a wholly owned
subsidiary of BANC ONE CORPORATION ("BANC ONE") will merge with and
into FIRSTIER. In the merger, each outstanding share of FIRSTIER
Common Stock will be converted into 1.25 shares of BANC ONE Common
Stock, as described more fully in the accompanying Prospectus and
Proxy Statement.
Your Board of Directors believes that the terms of the merger are
in the best interests of FIRSTIER shareholders, will provide
significant value to all FIRSTIER shareholders, and will enable
holders of FIRSTIER Common Stock to participate in the expanded
opportunities for growth that the merger will make possible.
Additional information is contained in the accompanying Prospectus
and Proxy Statement which I urge you to read carefully.
Your Board of Directors unanimously recommends that you vote in
favor of the approval of the Merger Agreement.
Please indicate your voting instructions, sign and date the
enclosed proxy and mail it promptly in the return envelope
provided. Whether or not you plan to attend the meeting, it is
important that you return the enclosed Proxy so that your shares of
FIRSTIER Common Stock are voted.
<PAGE>
PLEASE DO NOT SEND IN ANY STOCK CERTIFICATES AT THIS TIME. If the
Merger Agreement is approved, you will be sent instructions
regarding the mechanics of exchanging your existing FIRSTIER Common
Stock certificates for new certificates representing shares of BANC
ONE Common Stock.
Sincerely,
David A. Rismiller
Chairman, President
and Chief Executive Officer<PAGE>
FIRSTIER FINANCIAL, INC.
1700 FARNAM STREET
OMAHA, NEBRASKA 68102
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD , 1994
To the Shareholders of FirsTier Financial, Inc.:
A Special Meeting of the holders of Common Stock of FirsTier
Financial, Inc. ("FIRSTIER") will be held at [ ],
Omaha, Nebraska 68102 on , 1994, at _____
[a.m.][p.m.] local time, for the purpose of voting on the following
matters:
1. To consider and vote upon a proposal to approve the
Agreement and Plan of Merger dated as of April 19,
1993, as amended, by and among FIRSTIER, BANC ONE
CORPORATION ("BANC ONE") and Banc One Beta
Corporation ("Banc One Beta"), a wholly owned
subsidiary of BANC ONE (the "Merger Agreement"),
which Merger Agreement is summarized in the attached
Prospectus and Proxy Statement, providing for the
merger of Banc One Beta with and into FIRSTIER (the
"Merger"), pursuant to which each outstanding share
of FIRSTIER Common Stock will be converted into 1.25
shares of BANC ONE Common Stock, and the surviving
corporation shall become a wholly owned subsidiary
of BANC ONE.
2. To transact such other business as may properly come
before the meeting or any adjournment thereof.
Management currently knows of no other business to
be brought before the Special Meeting.
The FIRSTIER Board of Directors has fixed , 1994
as the record date for the determination of shareholders entitled
to notice of and to vote at the Special Meeting and any
adjournment or adjournments thereof. Only the holders of record
of FIRSTIER Common Stock at the close of business on such date are
entitled to notice of and to vote at the meeting or at any
adjournments thereof.
THE AFFIRMATIVE VOTE OF THE HOLDERS OF AT LEAST TWO-THIRDS OF THE
OUTSTANDING SHARES OF FIRSTIER COMMON STOCK IS REQUIRED FOR
APPROVAL OF THE MERGER AGREEMENT. YOUR VOTE IS IMPORTANT
REGARDLESS OF THE NUMBER OF SHARES YOU OWN.
Shareholders are invited to attend the Special Meeting in person.
However, whether or not you plan to attend the Special Meeting,
you are urged to complete and sign the enclosed form of proxy and
mail it in the enclosed return envelope, which requires no postage
if mailed in the United States. If a proxy is properly executed,
returned to FIRSTIER, and not revoked, the shares represented by
such proxy will be voted in accordance with the instructions
contained therein. If no instruction is given, the proxy will be
voted for approval of the Merger Agreement. FAILURE TO RETURN THE
ENCLOSED PROXY OR TO VOTE AT THE MEETING WILL HAVE THE SAME EFFECT
AS A VOTE AGAINST THE MERGER AGREEMENT AND THE MERGER. If you do
attend the meeting and decide that you wish to vote in person, you
may revoke your proxy at any time prior to its use.
BY ORDER OF THE BOARD OF DIRECTORS
Thomas B. Fischer
Secretary
, 1994
Omaha, Nebraska
PROSPECTUS
14,893,750 Shares
BANC ONE CORPORATION
Common Stock
FIRSTIER FINANCIAL, INC.
PROXY STATEMENT
for
Special Meeting of Shareholders
, 1994
This Prospectus and Proxy Statement (the "Prospectus" or
"Prospectus and Proxy Statement") relates to the proposed merger
of Banc One Beta Corporation ("Banc One Beta"), a wholly owned
subsidiary of BANC ONE CORPORATION ("BANC ONE") with and into
FirsTier Financial, Inc. ("FIRSTIER"). If the proposed merger
(the "Merger") is consummated, each outstanding share of FIRSTIER
Common Stock, par value $5.00 per share ("FIRSTIER Common Stock"),
will be converted into 1.25 shares of BANC ONE Common Stock, no
par value ("BANC ONE Common Stock"). See "MERGER--Exchange Rate."
The Merger is subject to the approval of the holders of at least
two-thirds of the outstanding shares of FIRSTIER Common Stock and
to the satisfaction of certain other conditions, including
obtaining various regulatory approvals. This Prospectus and Proxy
Statement does not cover any resales of BANC ONE Common Stock
received by affiliates of FIRSTIER upon consummation of the
Merger, and no person is authorized to make use of this Prospectus
and Proxy Statement in connection with any such resale.
BANC ONE declared and paid a five shares for four shares common
stock split paid on August 31, 1993. Pursuant to the Merger
Agreement (as hereinafter defined) the exchange rate and price
comparisons set forth herein have been adjusted to give effect to
such stock split.
The outstanding shares of BANC ONE Common Stock are, and the
shares of BANC ONE Common Stock offered hereby will be, listed and
traded on the New York Stock Exchange. The closing price of BANC
ONE Common Stock on the New York Stock Exchange on ,
1994 was $ .
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
A Special Meeting of Shareholders of FIRSTIER will be held at [
], Omaha, Nebraska 68102 on , 1994,
to consider a proposal to approve the Merger Agreement (as
hereinafter defined).
The date of this Prospectus and Proxy Statement is ,
1994.
TABLE OF CONTENTS
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . 4
INCORPORATION BY REFERENCE. . . . . . . . . . . . . . 4
A. INFORMATION ABOUT THE TRANSACTION . . . . . . . . . . . . 6
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . 6
FIRSTIER. . . . . . . . . . . . . . . . . . . . . . . 6
BANC ONE. . . . . . . . . . . . . . . . . . . . . . . 7
SUMMARY OF THE TRANSACTION. . . . . . . . . . . . . . 7
THE SPECIAL MEETING . . . . . . . . . . . . . . . . . 16
MERGER. . . . . . . . . . . . . . . . . . . . . . . . 17
COMPARATIVE RIGHTS OF SHAREHOLDERS. . . . . . . . . . 37
MISCELLANEOUS INFORMATION . . . . . . . . . . . . . . 47
B. INFORMATION ABOUT BANC ONE. . . . . . . . . . . . . . . . 48
General -- Business.. . . . . . . . . . . . . . . . . 48
Recent Developments.. . . . . . . . . . . . . . . . . 49
Certain Regulatory Matters. . . . . . . . . . . . . . 50
Market Prices of and Dividends Paid on BANC ONE
Common Stock . . . . . . . . . . . . . . . . . . 53
Incorporation of Certain Information About BANC
ONE By Reference . . . . . . . . . . . . . . . . 55
C. INFORMATION ABOUT FIRSTIER FINANCIAL, INC.. . . . . . . . 55
General . . . . . . . . . . . . . . . . . . . . . . . 55
Recent Developments . . . . . . . . . . . . . . . . . 55
Market Prices of and Dividends Paid on FIRSTIER
Common Stock . . . . . . . . . . . . . . . . . . 56
Incorporation of Certain Information About
FIRSTIER by Reference. . . . . . . . . . . . . . 57
D. VOTING AND MANAGEMENT INFORMATION . . . . . . . . . . . . 57
Voting. . . . . . . . . . . . . . . . . . . . . . . . 57
Rights of Dissenting Shareholders . . . . . . . . . . 58
Management and Principal Shareholders of BANC
ONE. . . . . . . . . . . . . . . . . . . . . . . 58
Management and Principal Shareholders of
FIRSTIER . . . . . . . . . . . . . . . . . . . . 58
EXHIBITS
EXHIBIT A - OPINION OF MORGAN STANLEY & CO. INCORPORATED
AVAILABLE INFORMATION
Each of BANC ONE and FIRSTIER is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports,
proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). The reports, proxy and
information statements and other information filed by BANC ONE AND
FIRSTIER with the Commission can be inspected and copied, at
prescribed rates, at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the Commission's Regional Offices located at Northwestern
Atrium Center, 500 West Madison Street, Suite 1600, Chicago,
Illinois 60661, and 7 World Trade Center, New York, New York
10048. Reports, proxy and information statements and other
information concerning BANC ONE can be inspected at the offices of
the New York Stock Exchange, Inc. 20 Broad Street, New York, New
York 10005.
BANC ONE has filed with the Commission a Registration Statement on
Form S-4 (together with any amendments thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the BANC ONE Common Stock to be
issued pursuant to the Merger Agreement. This Prospectus and
Proxy Statement does not contain all information set forth in the
Registration Statement and exhibits thereto. Such additional
information may be inspected and copied as set forth above.
Statements contained in this Prospectus and Proxy Statement or in
any document incorporated into this Prospectus and Proxy Statement
by reference as to the contents of any contract or other document
referred to herein or therein are not necessarily complete, and in
each instance reference is made to the copy of such contract or
document filed as an exhibit to the Registration Statement or such
other document, each such statement being qualified in all
respects by such reference.
INCORPORATION BY REFERENCE
THIS PROSPECTUS AND PROXY STATEMENT INCORPORATES DOCUMENTS BY
REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH.
COPIES OF ANY SUCH DOCUMENTS (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
THEREIN) ARE AVAILABLE WITHOUT CHARGE TO ANY PERSON, INCLUDING ANY
FIRSTIER SHAREHOLDER, TO WHOM THIS PROSPECTUS AND PROXY STATEMENT
IS DELIVERED UPON ORAL OR WRITTEN REQUEST, IN THE CASE OF
DOCUMENTS RELATING TO BANC ONE, TO WILLIAM C. LEITER, CONTROLLER,
BANC ONE CORPORATION, 100 EAST BROAD STREET, COLUMBUS, OHIO
43271-0251, TELEPHONE NUMBER 614/248-5905, AND, IN THE CASE OF
DOCUMENTS RELATING TO FIRSTIER, TO DONALD R. PETERSON, VICE
PRESIDENT, MARKETING, FIRSTIER FINANCIAL, INC., 1700 FARNAM
STREET, OMAHA, NEBRASKA 68102, TELEPHONE NUMBER 402/348-6218. IN
ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST
SHOULD BE MADE BY , 1994.
BANC ONE's Commission File No. 0-3644 Annual Report on Form 10-K
for the fiscal year ended December 31, 1992, BANC ONE's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1993, June
30, 1993 and September 30, 1993 and BANC ONE's Current Reports on
Form 8-K filed on February 4, 1993, February 16, 1993, August 20,
1993, November 9, 1993, November 16, 1993, and November 24, 1993,
in each case filed with the Commission pursuant to Section 13 of
the Exchange Act and the description of BANC ONE Common Stock
which is contained in its registration statement filed under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description, are
incorporated into this Prospectus and Proxy Statement by
reference. FIRSTIER's Commission File No. 0-4515 Annual Report on
Form 10-K for the fiscal year ended December 31, 1992, FIRSTIER's
Quarterly Reports on Form 10-Q for the quarters ended March 31,
1993, June 30, 1993 and September 30, 1993 and FIRSTIER's Current
Reports on Form 8-K filed on April 19, 1993, September 8, 1993 and
September 21, 1993, in each case filed with the Commission
pursuant to Section 13 of the Exchange Act, are incorporated into
this Prospectus and Proxy Statement by reference.
All documents filed by BANC ONE and FIRSTIER pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and Proxy Statement and prior to the Special
Meeting of Shareholders of FIRSTIER shall be deemed to be
incorporated by reference in this Prospectus and Proxy Statement
and to be a part hereof from the respective dates of filing of
such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus and Proxy Statement to the extent that such statement
is modified or superseded by a statement contained herein or in
any other subsequently filed document which also is or is deemed
to be incorporated by reference herein. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus and Proxy
Statement.
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus and
Proxy Statement in connection with the solicitations of proxies or
the offering of securities made hereby and, if given or made, such
information or representations must not be relied upon as having
been authorized by BANC ONE or FIRSTIER. This Prospectus and
Proxy Statement does not constitute an offer to sell, or a
solicitation of a offer to buy, any securities, or the
solicitation of a proxy, in any jurisdiction to or from any person
to whom it is not lawful to make any such offer or solicitation in
such jurisdiction. Neither the delivery of this Prospectus and
Proxy Statement nor any distribution of securities made hereunder
shall, under any circumstances, create an implication that there
has been no change in the affairs of BANC ONE or FIRSTIER since
the date hereof or that the information herein is correct as of
any time subsequent to such date.
PROSPECTUS AND PROXY STATEMENT
FIRSTIER FINANCIAL, INC.
OMAHA, NEBRASKA
_______________________________
SPECIAL MEETING OF SHAREHOLDERS
_______________________________
A. INFORMATION ABOUT THE TRANSACTION
INTRODUCTION
This Prospectus and Proxy Statement (the "Prospectus" or
"Prospectus and Proxy Statement") is furnished in connection with
the solicitation of proxies by the Board of Directors of FirsTier
Financial, Inc. ("FIRSTIER"), a registered multi-bank holding
company headquartered in Omaha, Nebraska, to be voted at the
Special Meeting of Shareholders of FIRSTIER to be held on
________ __, 1994 and at any adjournment or adjournments thereof
(the "Special Meeting") for the purpose of considering and taking
action upon a proposal to merge (the "Merger") Banc One Beta
Corporation ("Banc One Beta") with and into FIRSTIER. Banc One
Beta is a wholly owned subsidiary of BANC ONE CORPORATION ("BANC
ONE"), a registered multi-bank holding company headquartered in
Columbus, Ohio. This proposal is in accordance with the Agreement
and Plan of Merger dated as of April 19, 1993, as amended, by and
among FIRSTIER, Banc One Beta and BANC ONE (the "Merger
Agreement").
The principal office of BANC ONE is 100 East Broad Street,
Columbus, Ohio 43271 and its telephone number is 614/248-5944. The
principal executive office of FIRSTIER is 1700 Farnam Street,
Omaha, Nebraska 68102 and its telephone number is 402/348-6000.
This Prospectus and Proxy Statement and the form of proxy are being
mailed to the shareholders of FIRSTIER for the first time on or
about , 1994.
FIRSTIER
FIRSTIER is a multi-bank holding company, incorporated under the
laws of the state of Nebraska in 1984, which, as of September 30,
1993, owned all of the outstanding stock of four commercial
national banks which operate 33 offices in Nebraska and one federal
savings bank which operated 10 offices in Nebraska. On October 29,
1993, the federal savings bank merged with and into one of
FIRSTIER's commercial national banks. As of September 30, 1993,
FIRSTIER, its affiliate banks and its non-bank subsidiaries had
total assets of approximately $3.0 billion and total deposits of
approximately $2.3 billion. See "INFORMATION ABOUT FIRSTIER."
BANC ONE
BANC ONE is a multi-bank holding company incorporated under the
laws of the State of Ohio which as of September 30, 1993 owned all
of the outstanding stock of one Arizona, two Kentucky, six
Illinois, one Texas, four Michigan, eight Indiana, fourteen
Wisconsin, one California, six Colorado, eighteen Ohio, one Utah
and sixteen West Virginia commercial banks. These 78 banks operate
more than 1,340 offices in this twelve-state area and, at September
30, 1993, BANC ONE, its affiliate banks and its non-bank
subsidiaries had total assets of approximately $76.5 billion and
total deposits of approximately $59.1 billion. Banc One Beta is a
wholly-owned subsidiary of BANC ONE formed under the laws of the
State of Ohio for the sole purpose of merging with and into
FIRSTIER. See "INFORMATION ABOUT BANC ONE CORPORATION," which
includes information about pending acquisitions.
SUMMARY OF THE TRANSACTION
Terms of Agreement and Exchange Rate
Upon the Merger becoming effective, each of the issued and
outstanding shares of FIRSTIER Common Stock, par value $5.00 per
share ("FIRSTIER Common Stock"), will be converted into 1.25 shares
of BANC ONE Common Stock, no par value ("BANC ONE Common Stock"),
after giving effect to the 5 shares for 4 shares BANC ONE Common
Stock split paid in the form of a dividend to shareholders of BANC
ONE on August 31, 1993, subject to adjustments in certain
circumstances (the "Exchange Rate"). Upon the consummation of the
Merger, Banc One Beta will be merged with and into FIRSTIER and the
separate corporate existence of Banc One Beta will cease.
FIRSTIER, as the surviving corporation in the Merger, will become
a wholly owned subsidiary of BANC ONE and will continue operations
under the name BANC ONE NEBRASKA CORPORATION. See "MERGER--
Exchange Rate" and "--Operations After the Merger."
Management After the Merger
FIRSTIER's current officers, directors and employees will serve as
the officers, directors and employees of the surviving corporation
following the Merger.
Each of the bank subsidiaries of the surviving corporation, as a
BANC ONE affiliate after the Merger, will operate under BANC ONE's
operating philosophy whereby each of such bank subsidiaries will
have autonomy to match its products and services to the needs of
its local communities. BANC ONE bank affiliates have authority to
make decisions locally in "people-related" matters such as lending,
personnel, charitable contributions and other community and related
matters, relying upon BANC ONE and its state holding companies for
"paper and computer related" matters such as assistance in
accounting, auditing, certain legal matters, investment portfolio
management, regulatory compliance, data processing and other
matters which are generally best performed by specialists on a
centralized basis.
Tax Consequences
Consummation of the Merger is conditioned on receipt by FIRSTIER
and BANC ONE of an opinion dated as of the effective date of the
Merger from Sullivan & Cromwell to the effect that, among other
things, no gain or loss will be recognized by FIRSTIER's
shareholders for Federal income tax purposes on the exchange of
their FIRSTIER Common Stock for BANC ONE Common Stock in the
Merger, disregarding for the purposes of the opinion any cash
received pursuant to the Merger in connection with fractional share
interests. The tax consequences of the proposed transaction to
shareholders of FIRSTIER are summarized under "MERGER--Federal
Income Tax Consequences."
Vote Required
At least two-thirds of the outstanding shares of FIRSTIER Common
Stock entitled to vote thereon must vote in favor of the approval
of the Merger Agreement in order for the Merger to be approved.
The directors and executive officers of FIRSTIER and their
affiliates and associates are entitled to vote 22.84% of the
outstanding shares of FIRSTIER Common Stock and each such holder
has indicated his or her intent to vote such shares for approval of
the Merger Agreement. It is not necessary for the shareholders of
BANC ONE to approve the Merger or the Merger Agreement. However,
BANC ONE, as the sole shareholder of Banc One Beta, has approved
the Merger and the Merger Agreement. For information concerning
voting by shareholders of FIRSTIER on the proposed Merger see
"MERGER--General" and "VOTING AND MANAGEMENT INFORMATION--Voting."
Rights of Dissenting Shareholders
Holders of FIRSTIER Common Stock will not be entitled to any
statutory appraisal or dissenters' rights in connection with the
Merger. See "VOTING AND MANAGEMENT INFORMATION--Rights of
Dissenting Shareholders."
Differences in Shareholder Rights
Although there are some differences between the rights of FIRSTIER
shareholders and BANC ONE shareholders, such rights are similar in
most material respects. Both Ohio law and BANC ONE's Amended
Articles of Incorporation ("BANC ONE's Articles") contain "control
share acquisition" provisions which mandate certain procedures and
shareholder consents to approve certain share acquisitions.
Nebraska law contains provisions which also require shareholder
approval of "control share acquisitions." In addition, under Ohio
law, in evaluating an acquisition proposal, directors of an Ohio
corporation such as BANC ONE are permitted, in determining whether
any matter is in the best interest of the corporation, to take into
consideration the interests of the corporation's employees,
suppliers, creditors and customers, the economy and community and
societal considerations in the interest of the corporation and its
shareholders. Similarly, under Nebraska law, a director may, but
need not, in considering the best interests of a corporation,
consider, among other things, the effects of any action on
employees, suppliers, creditors and customers of the corporation
and communities in which offices or other facilities of the
corporation are located. BANC ONE's Articles contain a so-called
"fair price" provision which mandates certain procedures and
approvals for a business combination. FIRSTIER's Amended and
Restated Articles of Incorporation ("FIRSTIER's Articles") contain
similar provisions regarding procedures and approvals for a
business combination. See "COMPARATIVE RIGHTS OF SHAREHOLDERS--
Special Voting Requirements for Certain Transactions" and "--
Comparison of BANC ONE Common Stock and FIRSTIER Common Stock." In
addition, Ohio law contains provisions prohibiting certain business
combinations between corporations and "interested shareholders" as
that term is defined in Chapter 1704 of the Ohio Revised Code.
Nebraska law contains similar provisions prohibiting certain
business combinations between corporations and "interested
shareholders." The effect of the supermajority and fair price
provisions contained in BANC ONE's and FIRSTIER's Articles may be
to discourage certain potential business combinations which some
shareholders may believe to be in their best interest and to make
more difficult management changes which might occur if the
potential business combination were successful. See "COMPARATIVE
RIGHTS OF SHAREHOLDERS--Comparison of BANC ONE Common Stock and
FIRSTIER Common Stock."
Regulatory Approvals
In order for the proposed transaction to be completed, approval of
BANC ONE's acquisition of FIRSTIER must be obtained from the Board
of Governors of the Federal Reserve System (the "Federal Reserve")
and the Director of the Nebraska Department of Banking and Finance
(the "Nebraska Department of Banking"), which regulatory approvals
have been obtained. All applicable waiting periods to which any
such regulatory approvals are subject have expired.
Conditions; Termination
Consummation of the Merger is subject to satisfaction or waiver of
various conditions, including compliance by each party with its
respective covenants and confirmation by each party of its
respective representations and warranties, the absence of any
material adverse change in the financial condition or business of
FIRSTIER or BANC ONE, the fulfillment of certain earnings tests and
other matters.
FIRSTIER, by action of the FIRSTIER Board, may elect to terminate
the Merger Agreement, whether before or after approval of the
Merger Agreement by the shareholders of FIRSTIER, by giving written
notice of such election to BANC ONE within two New York Stock
Exchange ("NYSE") trading days after the "Valuation Period"
(defined in the Merger Agreement as the ten consecutive days on
which shares of BANC ONE Common Stock are traded on the NYSE ending
on the eighth NYSE trading day immediately prior to the
consummation of the Merger) if the average of the closing prices of
BANC ONE Common Stock on the NYSE (the "Average BANC ONE Closing
Price") during the Valuation Period is less than $41.60 (the
"FIRSTIER Termination Provision"). Upon receipt of such notice,
BANC ONE shall have the option to (i) nullify FIRSTIER's election
to terminate the Merger Agreement by increasing the Exchange Rate
to that number of shares of BANC ONE Common Stock which when
multiplied by the Average BANC ONE Closing Price during the
Valuation Period will equal $41.60 (the "Increased Exchange Rate"),
or (ii) accept FIRSTIER's election to terminate the Merger
Agreement by giving written notice to FIRSTIER of such acceptance
of termination within two NYSE trading days of BANC ONE's receipt
of FIRSTIER's notice. Upon BANC ONE's notice to FIRSTIER of such
acceptance of termination, the Merger Agreement shall be
terminated. FIRSTIER shall then be obligated to deliver to BANC
ONE, within two NYSE trading days of its receipt of BANC ONE's
written notice of acceptance of termination, a certified or
cashier's check in the amount of $1,000,000 as liquidated damages.
The Average BANC ONE Closing Price for the ten consecutive trading
days ending on [ ], 1994, was $__.__. In the event that the
Average BANC ONE Closing Price is less than $41.60 during the
Valuation Period, the FIRSTIER Board will then decide whether to
exercise the FIRSTIER Termination Provision based on its review of
the relevant facts and circumstances then existing. The FIRSTIER
Board may exercise the FIRSTIER Termination Provision even if the
FIRSTIER shareholders have previously approved the Merger
Agreement. See "MERGER--Background of Transaction" for a
discussion of the FIRSTIER Board's consideration of the FIRSTIER
Termination Provision.
The Merger Agreement also provides that either party may abandon
the Merger if it is not consummated on or before June 1, 1994. See
"MERGER--Conditions to the Merger" for a more complete discussion
of the conditions to the Merger and the rights of each party to
terminate the Merger Agreement.
Incentive Compensation
[To come]
The Option
As a condition of BANC ONE's entering into the Merger Agreement and
in consideration therefor, BANC ONE and FIRSTIER entered into a
Stock Option Agreement dated as of April 20, 1993 (the "Option
Agreement"). The Option Agreement is intended to increase the
likelihood that the Merger will be consummated by making it more
difficult and more expensive for another party to obtain control of
or acquire FIRSTIER. See "MERGER--The Option."
Pursuant to the Option Agreement, FIRSTIER granted BANC ONE an
option (the "Option") to purchase up to 2,281,000 authorized but
unissued shares of FIRSTIER Common Stock at $54.50 per share (the
closing trade price of a share of FIRSTIER Common Stock as reported
on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") National Market System on April 19,
1993). The Option Agreement provides that if any additional shares
of FIRSTIER Common Stock are issued or otherwise become outstanding
after the date of the Option Agreement, the number of shares of
FIRSTIER Common Stock subject to the Option will be increased so
that, after such issuance, the number of shares of FIRSTIER Common
Stock subject to the Option will equal 19.9% of the number of
shares of FIRSTIER Common Stock then issued and outstanding without
giving effect to any shares subject, or issued pursuant, to the
Option. BANC ONE may exercise the Option only upon the occurrence
of certain events (none of which has occurred to date) and upon
obtaining any regulatory approval necessary for the acquisition of
shares of FIRSTIER Common Stock subject to the Option. See
"MERGER--The Option."
In addition to certain other Option Termination Events (as
hereinafter defined), the Option Agreement provides that the Option
will terminate upon termination of the Merger Agreement by (i) BANC
ONE pursuant to the Merger Agreement if that termination occurs
prior to the occurrence of an Initial Triggering Event (as
hereinafter defined), (ii) by FIRSTIER pursuant to the Merger
Agreement, or (iii) by the mutual consent of BANC ONE and FIRSTIER.
If termination of the Merger Agreement by BANC ONE occurs after an
Initial Triggering Event, however, the Option may be exercised for
the one-year period following such termination provided that the
Option shall in any event expire not later than 18 months following
such Initial Triggering Event.
If the Merger Agreement is terminated by FIRSTIER pursuant to the
FIRSTIER Termination Provision, the Option will expire to the
extent BANC ONE had not previously exercised the Option. See
"Merger--The Option" for a description of the circumstances under
which BANC ONE is permitted to exercise the Option prior to an
Option Termination Event.
Selected Financial Data
On March 30, 1993, BANC ONE acquired Valley National Corporation
("Valley"); and on May 3, 1993, BANC ONE acquired Key Centurion
Bancshares, Inc. ("Key") and First Community Bancorp, Inc. ("First
Community"). All balance sheets and income statements presented
for BANC ONE have been restated to include the acquisitions
accounted for as poolings of interests with Valley, Key and First
Community. The acquisition of FIRSTIER will be accounted for as a
pooling of interests. On November 2, 1993, BANC ONE entered into
an agreement to acquire Liberty National Bancorp, Inc., Louisville,
Kentucky ("Liberty"). BANC ONE has announced four other
acquisitions of financial institutions which are currently pending
and which are not material, individually, or in the aggregate, and
are, therefore, not included in the accompanying selected financial
data. For further discussion of these acquisitions, see
"INFORMATION ABOUT BANC ONE CORPORATION".
The following table presents on a historical basis selected
unaudited consolidated financial data for BANC ONE; BANC ONE,
FIRSTIER and Liberty combined ("Total") and FIRSTIER. The
financial data is based on the consolidated financial statements of
BANC ONE and FIRSTIER, respectively, incorporated herein by
reference.
<TABLE>
SELECTED FINANCIAL DATA
$(thousands, except per share data)
(UNAUDITED)
<CAPTION>
Nine months
ended
September 30, Year ended December 31,
------------- ----------------------------------------------------------------
1993 1992 1991 1990 1989 1988
------------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Total interest income
and other income:
BANC ONE.......................... $5,398,958 $7,358,393 $6,828,327 $6,151,959 $5,473,099 $4,844,127
Total............................. 5,876,141 8,003,953 7,516,942 6,821,108 6,105,046 5,369,549
FIRSTIER.......................... 192,968 264,456 293,053 294,240 278,891 235,312
Income from continuing
operations:
BANC ONE.......................... $834,338 $876,588 $664,288 $536,066 $304,916 $485,533
Total............................. 907,437 963,637 735,391 571,485 362,406 537,010
FIRSTIER.......................... 35,575 41,410 33,323 2,629 24,319 22,576
Income from continuing
operations per
common share:
BANC ONE.......................... $2.40 $2.52 $2.00 $1.72 $1.07 (2) $1.73
Total (1)........................ 2.36 2.52 2.01 1.66 1.14 1.72
FIRSTIER.......................... 3.04 3.55 2.88 0.23 2.09 1.96
Historical dividends
declared per
common share:
BANC ONE.......................... $0.87 $0.98 $0.84 $0.76 $0.69 $0.61
FIRSTIER.......................... 0.60 0.71 0.63 0.60 0.60 0.56
Total assets
(end of period):
BANC ONE.......................... $76,461,592 $76,739,119 $73,840,498 $56,610,126 $48,111,384 $46,972,739
Total............................. 84,345,610 84,319,757 81,151,090 63,399,922 54,527,953 52,676,720
FIRSTIER.......................... 3,036,915 3,014,893 2,972,486 3,076,329 2,881,071 2,541,205
Long-term borrowings
(end of period):
BANC ONE.......................... $1,708,953 $1,357,462 $943,726 $810,197 $624,232 $798,177
Total............................. 1,825,547 1,419,972 1,030,364 882,531 707,925 899,860
FIRSTIER.......................... 12,826 23,175 47,287 34,957 42,425 56,475
Total stockholders' equity
(end of period):
BANC ONE.......................... $6,759,920 $6,241,586 $5,559,370 $4,514,652 $3,633,542 $3,474,513
Total............................. 7,441,530 6,858,573 6,112,293 4,995,566 4,093,256 3,887,676
FIRSTIER.......................... 293,396 263,760 232,336 205,571 211,926 195,763
(1) Assumes the maximum exchange
rate is used for Liberty.
(2) The decrease in 1989's income
from continuing operations per
share is principally due to a
significant increase in Valley's
provision for loans losses.
</TABLE>
Comparative Per Share Data
Based upon an Exchange Rate of 1.25 shares of BANC ONE Common Stock
for each of the outstanding shares of FIRSTIER Common Stock, the
following tables set forth per common share income from continuing
operations, dividends, book value, and market value of (i) BANC
ONE; (ii) BANC ONE, FIRSTIER and Liberty combined ("Total"); (iii)
FIRSTIER; and (iv) pro forma equivalent of one share of FIRSTIER
Common Stock based on BANC ONE Common Stock.
<TABLE>
<CAPTION>
(iv) Per Share of FIRSTIER common
stock assuming an exchange rate of one
share of FIRSTIER common stock for
(i) (ii) (iii) 1.25 shares of BANC ONE common stock
---------- ---------- ---------- ----------------------
BANC BANC
ONE Total (5) FIRSTIER ONE Total
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Income (loss) from continuing
operations per common share:
December 31, 1988 $1.73 $1.72 $1.96 $2.16 $2.15
December 31, 1989 1.07 (6) 1.14 2.09 1.34 1.43
December 31, 1990 1.72 1.66 0.23 2.15 2.08
December 31, 1991 2.00 2.01 2.88 2.50 2.51
December 31, 1992 2.52 2.52 3.55 3.15 3.15
September 30, 1993 2.40 2.36 3.04 3.00 2.95
Dividends per common share:
December 31, 1988 0.61 0.61 0.56 0.76 0.76
December 31, 1989 0.69 0.69 0.60 0.86 0.86
December 31, 1990 0.76 0.76 0.60 0.95 0.95
December 31, 1991 0.84 0.84 0.63 1.05 1.05
December 31, 1992 0.98 0.98 0.71 1.23 1.23
September 30, 1993 0.87 0.87 0.60 1.09 1.09
Book value per common share
as of September 30, 1993 19.09 19.08 25.46 23.86 23.85
Market value per common share
as of April 16, 1993 (1) 47.60 47.60 45.50 (3) 59.50 59.50
Market value per common share
as of January 13, 1994 (4) 37.75 37.75 49.50 (3) 47.19 47.19
(1) The business day immediately preceding public announcement of the
proposed merger.
(2) Based on the closing price of BANC ONE common stock as reported on the
New York Stock Exchange, adjusted for the five shares for four shares
common stock split effective August 31, 1993.
(3) Based on the closing price of FIRSTIER common stock as reported on the
NASDAQ National Market System.
(4) A recent business day preceding the date of this Prospectus.
(5) Assumes maximum exchange rate is used for Liberty.
(6) The decrease in 1989's income from continuing operations per common
share is due principally to a significant increase in Valley's provision
for loan losses.
</TABLE>
This Prospectus and Proxy Statement is being furnished to the
shareholders of FIRSTIER in connection with the solicitation of
proxies by the FIRSTIER Board for use at the Special Meeting. The
Special Meeting will be held on , 1994, at _____
[a.m.][p.m.], local time at [ ], Omaha, Nebraska
68102.
Purpose of the Special Meeting
At the Special Meeting, the holders of FIRSTIER Common Stock will
vote on the approval of the Merger Agreement.
Record Date and Voting Rights
The FIRSTIER Board of Directors (the "FIRSTIER Board") has fixed
the close of business on , 1994, as the record date (the
"Record Date") for determination of shareholders entitled to notice
of and to vote at the Special Meeting. As of the Record Date,
FIRSTIER had outstanding and entitled to vote __________ shares of
FIRSTIER Common Stock. Each share of FIRSTIER Common Stock is
entitled to one vote. The Merger Agreement must be approved by the
affirmative vote of the holders of at least two-thirds of the
shares of FIRSTIER Common Stock outstanding at the close of
business on the Record Date.
Votes, whether in person or by proxy, will be counted and tabulated
by inspectors appointed by FIRSTIER. Abstentions and broker non-
votes will not be counted as votes either "for" or "against" any
matters coming before the Special Meeting, nor will such
abstentions and broker non-votes be counted toward determining a
quorum. In accordance with Nebraska law and FIRSTIER's Articles
and Bylaws, such abstentions have the effect of a "no" vote since
Nebraska law requires the Merger Agreement to be authorized and
approved by the affirmative vote of the holders of not less than
two-thirds of the FIRSTIER Common Stock entitled to be voted,
rather than two-thirds of those shares actually voting.
Proxies
Proxies for use at the Special Meeting accompany this Prospectus
and Proxy Statement. A shareholder may use a proxy whether or not
he or she intends to attend the Special Meeting in person. The
proxy may be revoked in writing by the person giving it at any time
before it is exercised by notice to the Secretary of FIRSTIER, by
submitting a later dated proxy or by attending and voting in person
at the Special Meeting. All proxies validly submitted and not
revoked will be voted in the manner specified therein. IF NO
SPECIFICATION IS MADE, THE PROXIES WILL BE VOTED IN FAVOR OF
APPROVAL OF THE MERGER AGREEMENT. The FIRSTIER Board is not aware
of any other matters which may be presented for action at the
Special Meeting, but if other matters do properly come before the
meeting it is intended that the shares represented by the
accompanying proxy will be voted by the persons named in the proxy
in accordance with their best judgment. The shares represented by
the accompanying proxy may not be voted to adjourn the Special
Meeting of Shareholders for the purpose of soliciting additional
votes to approve the Merger Agreement and Merger.
Solicitation of proxies will be made in person, by mail, or by
telephone or telegraph by present and former directors, officers
and employees of FIRSTIER for which no additional compensation will
be paid. In addition, FIRSTIER has retained Morrow & Co., Inc.
("Morrow") to assist FIRSTIER in soliciting proxies in connection
with the Merger. FIRSTIER has agreed to pay Morrow $7,500 for such
solicitation services, as well as to reimburse Morrow for its
disbursements incurred in connection with distributing proxy
materials. FIRSTIER will bear the cost of solicitation of proxies
from its shareholders and may reimburse brokers and others for
their expenses in forwarding solicitation material to beneficial
owners of its voting stock.
MERGER
The descriptions in this Prospectus and Proxy Statement of the
terms of the Merger and the Option are summaries only and are
qualified in their entirety by reference to the Merger Agreement
and the Option Agreement which are attached as exhibits to the
Registration Statement of which this Prospectus and Proxy Statement
is a part and are incorporated herein by reference.
General
The Merger Agreement provides for the Merger of Banc One Beta with
and into FIRSTIER. As a result of the Merger, FIRSTIER will become
a wholly owned subsidiary of BANC ONE. At the time the Merger
becomes effective (the "Effective Time"), each of the issued and
outstanding shares of FIRSTIER Common Stock will be converted into
shares of BANC ONE Common Stock at the Exchange Rate (as
hereinafter defined). See "MERGER--Exchange Rate."
The affirmative vote of the holders of at least two-thirds of the
outstanding shares of FIRSTIER Common Stock entitled to vote at the
Special Meeting is required in order to approve the Merger
Agreement. See "VOTING AND MANAGEMENT INFORMATION--Voting."
However, it is a condition to BANC ONE's obligation to consummate
the Merger that not more than 10% of the maximum aggregate number
of shares of BANC ONE Common Stock which could be issued by BANC
ONE as a result of the Merger are to be settled in cash as a result
of fractional share interests.
Subject to such shareholder approval and the satisfaction of
certain conditions and receipt of all requisite regulatory
approvals, in each case as provided for in the Merger Agreement,
the Merger will become effective upon the later to occur of (i)
completion of the filing with the Secretary of State of the State
of Nebraska of articles of merger with respect thereto as provided
in applicable provisions of the Nebraska Business Corporation Act,
and (ii) the completion of the filing of a certificate of merger
with the Secretary of State of Ohio with respect thereto as
provided in applicable provisions of the Ohio General Corporation
Law.
The Boards of Directors of BANC ONE, Banc One Beta and FIRSTIER
have unanimously approved the Merger Agreement. BANC ONE, as the
sole shareholder of Banc One Beta, has approved the Merger
Agreement. Approval of the Merger Agreement by the shareholders of
BANC ONE is not required for consummation of the Merger.
Exchange Rate
The Merger Agreement provides that at the Effective Time, each of
the issued and outstanding shares of FIRSTIER Common Stock will be
converted into 1.25 shares of BANC ONE Common Stock, subject to
adjustment in certain circumstances as provided for by the Merger
Agreement (the "Exchange Rate"), which shares of BANC ONE Common
Stock will be issued as a result of the Merger. The Exchange Rate
has been adjusted to reflect the 5 shares for 4 shares common stock
split paid by BANC ONE on August 31, 1993.
Operations After the Merger
Upon the consummation of the Merger, Banc One Beta will be merged
with and into FIRSTIER and the separate corporate existence of Banc
One Beta will cease. FIRSTIER, as the surviving corporation in
the Merger, will become a wholly owned subsidiary of BANC ONE, will
continue operations under the name BANC ONE NEBRASKA CORPORATION
and will operate with FIRSTIER's current officers and employees,
with its principal place of business at Omaha, Nebraska.
FIRSTIER's current directors will serve as the directors of the
surviving corporation following the Merger until the next annual
meeting of directors at which their respective successors are
elected and qualified.
Each of the bank subsidiaries of the surviving corporation, as a
BANC ONE affiliate after the Merger, will operate under BANC ONE's
operating philosophy whereby each of such bank subsidiaries will
have autonomy to match its products and services to the needs of
its local communities. BANC ONE bank affiliates have authority to
make decisions locally in "people-related" matters such as lending,
personnel, charitable contributions and other community and related
matters, relying upon BANC ONE and its state holding companies for
"paper and computer related" matters such as assistance in
accounting, certain legal matters, investment portfolio management,
regulatory compliance, data processing and other matters which are
generally best performed by specialists on a centralized basis.
Background of Transaction
In late 1992, the FIRSTIER Board, with the assistance of Morgan
Stanley & Co. Incorporated ("Morgan Stanley"), began considering
strategic business alternatives. Based upon consultation with
Morgan Stanley and the Board's consideration of various
alternatives (including remaining independent), the FIRSTIER Board
determined to pursue a possible strategic alliance with BANC ONE
and approached BANC ONE to discuss the possibility of such an
affiliation. Discussions between members of top management of BANC
ONE and FIRSTIER followed. On February 15, 1993, the Board of
Directors of FIRSTIER approved the exploration of a possible
transaction with BANC ONE and, on February 18, 1993, formally
retained Morgan Stanley to assist it in evaluating the terms of an
affiliation with BANC ONE. The nature of discussions between BANC
ONE and FIRSTIER was exploratory regarding price, structure and
terms from February until early March 1993. Thereafter ongoing
discussions took place until the Merger Agreement was approved by
the Boards of Directors of the parties and executed on April 19,
1993, at which time the execution of the Merger Agreement was
publicly announced.
In approving the Merger Agreement, the FIRSTIER Board took into
account that the Merger Agreement contains a provision permitting
the FIRSTIER Board to terminate the Merger Agreement if the Average
BANC ONE Closing Price during the Valuation Period is less than
$41.60. Such provisions are utilized in a number of bank merger
agreements in order to protect against a decline in the purchasing
company's stock during the relatively lengthy period required for
consummation. The Average BANC ONE Closing Price for the ten
consecutive trading days ending on [ ] ___, 1994 was
$___.___.
During November and December 1993, the directors of FIRSTIER held
various discussions and consulted with FIRSTIER's financial and
legal advisors as to how the FIRSTIER Board might respond if the
Average BANC ONE Closing Price during the Valuation Period remains
under $41.60. In such a case, the FIRSTIER Board may, but is not
obligated to, terminate the Merger Agreement pursuant to the
FIRSTIER Termination Provision. In December 1993, FIRSTIER
requested BANC ONE to agree to increase the Exchange Rate to the
Increased Exchange Rate if the Average BANC ONE Closing Price
during the Valuation Period was less than $41.60. BANC ONE has
advised FIRSTIER that it is not willing to agree at this time to so
increase the Exchange Rate.
There can be no certainty that the Average Banc One Closing Price
during the Valuation Period will be at least $41.60. In the event
that the Average BANC ONE Closing Price is less than $41.60 during
the Valuation Period, the FIRSTIER Board will then decide whether
to exercise the FIRSTIER Termination Provision based on its review
of the relevant facts and circumstances then existing. The
FIRSTIER Board may exercise the FIRSTIER Termination Provision even
if the FIRSTIER shareholders have previously approved the Merger
Agreement.
Merger Recommendation and Reasons for Transaction
The terms of the Merger and the Merger Agreement, including the
Exchange Rate, were the result of arms'-length negotiations between
FIRSTIER and BANC ONE and their respective representatives. In the
course of reaching its decision to approve the Merger Agreement,
the FIRSTIER Board consulted with its legal and financial advisors
as well as with management of FIRSTIER, and, without assigning any
relative or specific weights, considered numerous factors,
including but not limited to the following:
(1) The factors relating to FIRSTIER's business, results
of operations, prospects, and financial condition,
including its capital position, regulatory
requirements and future growth prospects were it to
remain independent;
(2) The economic conditions and prospects for the market
in which FIRSTIER operates, and competitive
pressures in the financial services industry in
general and the banking industry in particular;
(3) That a business combination with a larger bank
holding company, such as BANC ONE, would provide
both greater short-term and long-term value to
FIRSTIER's shareholders than other alternatives
available and would enhance FIRSTIER's
competitiveness and its ability to serve its
depositors, customers, and the communities in which
it operates;
(4) That the Merger offered FIRSTIER's shareholders the
prospect for higher dividends, a higher current
trading value for their shares, and better prospects
for future growth than if FIRSTIER were to remain
independent;
(5) The bank regulatory environment in general;
(6) The business, results of operations, asset quality
and financial condition of BANC ONE, the future
growth prospects of BANC ONE and FIRSTIER following
the Merger, and the potential synergies and cost
savings expected to be realized from the Merger;
(7) That the Merger Agreement contains a provision
permitting the FIRSTIER Board to terminate the
Merger Agreement either before or after approval of
the Merger Agreement by the shareholders of FIRSTIER
in the event the Average BANC ONE Closing Price
during the Valuation Period is less than $41.60; and
(8) BANC ONE's significant long-term experience in
integrating the operations of banks and bank holding
companies.
The FIRSTIER Board believes that the affiliation with BANC ONE
will result in a competitively stronger combined entity with
increased financial and human resources and a larger and more
geographically diverse banking operation.
In approving the Merger Agreement, the FIRSTIER Board also
considered the opinion of Morgan Stanley that the consideration to
be received by FIRSTIER's shareholders in the Merger is fair from
a financial point of view. See "MERGER--Opinion of Morgan
Stanley" and the Opinion of Morgan Stanley which is attached
hereto as Exhibit A.
As of December 31, 1993, the directors and executive officers of
FIRSTIER, together with their affiliates and associates, as a
group, were entitled to vote approximately [ ] shares of
FIRSTIER Common Stock representing approximately [ ]% of the
shares outstanding. These persons will be entitled to receive the
same consideration for their shares as any other FIRSTIER
shareholder upon approval of the Merger. FIRSTIER believes that
all of the directors' and executive officers' shares will be voted
in favor of the Merger. After the Merger, FIRSTIER's directors
and executive officers will own less than 1% of the shares of BANC
ONE Common Stock outstanding.
THE FIRSTIER BOARD UNANIMOUSLY RECOMMENDS THAT THE MERGER
AGREEMENT BE APPROVED BY THE SHAREHOLDERS OF FIRSTIER.
BANC ONE believes that the affiliation of FIRSTIER with BANC ONE
will provide BANC ONE with a meaningful presence in Nebraska and
an expansion of BANC ONE's customer base and assets. The
affiliation with FIRSTIER will result in a combined entity with
increased financial resources and greater financial strength than
either BANC ONE or FIRSTIER separately.
Opinion of Morgan Stanley
FIRSTIER retained Morgan Stanley to act, among other things, as
financial advisor in connection with the Merger. Morgan Stanley
has delivered to the FIRSTIER Board its oral opinion that, based
upon and subject to the various considerations set forth in the
opinion, as of April 19, 1993, the Exchange Rate was fair from a
financial point of view to FIRSTIER's common shareholders.
[Morgan Stanley has reaffirmed its fairness opinion as of the date
of this Prospectus and Proxy Statement.] No limitations were
imposed by the FIRSTIER Board upon Morgan Stanley, other than
those listed below, with respect to the investigations made or
procedures followed by it in rendering its opinions.
[The full text of the opinion of Morgan Stanley dated as of the
date of this Prospectus and Proxy Statement which sets forth
assumptions made, matters considered, and limitations on the
review undertaken, is attached as Exhibit A to this Prospectus and
Proxy Statement.] FIRSTIER shareholders are urged to read this
opinion in its entirety. Morgan Stanley's opinion is directed
only to the Exchange Rate and does not constitute a recommendation
to any FIRSTIER shareholder as to how such shareholder should vote
at the Special Meeting. [The summary of the opinion of Morgan
Stanley set forth in this Prospectus and Proxy Statement is
qualified in its entirety by reference to the full text of such
opinion. The April 19, 1993 oral opinion is substantially
identical to the written opinion attached hereto.]
In arriving at its opinion, Morgan Stanley: (i) analyzed certain
publicly available financial statements and other information of
FIRSTIER; (ii) analyzed certain internal financial statements and
other financial and operating data concerning FIRSTIER prepared by
the management of FIRSTIER; (iii) analyzed certain financial
projections concerning FIRSTIER and BANC ONE prepared by the
management of FIRSTIER and BANC ONE, respectively; (iv) discussed
the past and current operations and financial condition and the
prospects, including asset quality trends, of FIRSTIER with senior
executives of FIRSTIER; (v) reviewed the reported prices and
trading activity for FIRSTIER Common Stock; (vi) analyzed certain
publicly available financial statements and other information of
BANC ONE; (vii) discussed the past and current operations and
financial condition and the prospects, including asset quality
trends, of BANC ONE with senior executives of BANC ONE; (viii)
reviewed the reported prices and trading activity for BANC ONE
Common Stock; (ix) compared the financial performance of FIRSTIER
and the prices and trading activity of FIRSTIER Common Stock with
the financial performance of certain other comparable publicly-
traded companies and their securities; (x) compared the financial
performance of BANC ONE and the prices and trading activity of
BANC ONE Common Stock with the financial performance of certain
other comparable publicly-traded companies and their securities;
(xi) reviewed the financial terms, to the extent publicly
available, of certain comparable acquisition transactions; (xii)
discussed the strategic objectives of the Merger with FIRSTIER and
BANC ONE; (xiii) discussed with the independent auditors of
FIRSTIER their review of the financial and accounting affairs of
FIRSTIER and with the independent auditors of BANC ONE their
review of the financial and accounting affairs of BANC ONE; (xiv)
participated in discussions and negotiations among representatives
of FIRSTIER and BANC ONE and their financial and legal advisors;
and (xv) reviewed the Merger Agreement and certain related
documents.
Morgan Stanley has assumed and relied upon, without independent
verification, the accuracy and completeness of the information
reviewed by it. With respect to the financial projections, Morgan
Stanley has assumed that they have been reasonably prepared on
bases reflecting the best currently available estimates and
judgments of the respective future financial performances of
FIRSTIER and BANC ONE. Morgan Stanley has not made any
independent valuation or appraisal of the assets or liabilities of
FIRSTIER or BANC ONE, nor has Morgan Stanley examined any of the
loan files of FIRSTIER or BANC ONE. Morgan Stanley has also
assumed, without independent verification, that FIRSTIER and BANC
ONE have adequately reserved against losses which may be incurred
as a result of nonperforming or defaulting loans. Morgan
Stanley's opinion was necessarily based on economic, market and
other conditions as in effect on, and the information made
available to it as of, the respective dates of the opinions.
As directed by FIRSTIER's Board of Directors, Morgan Stanley did
not solicit expressions of interest from other potential buyers of
FIRSTIER.
The following is a brief summary of the analyses performed by
Morgan Stanley in connection with its oral opinion as to the
fairness of the Exchange Rate. The valuation methods discussed in
this summary are substantially the same as those Morgan Stanley
used in connection with its written opinion dated as of the date
of this Prospectus and Proxy Statement.
Valuation Methodologies. In connection with its opinion and the
presentation of its opinion to the FIRSTIER Board, Morgan Stanley
performed three valuation analyses: (i) a comparison to publicly
traded comparable companies, (ii) an analysis of comparable prices
and terms of transactions involving bank holding companies and
(iii) a dividend discount analysis. Each of these methodologies
is discussed below.
Comparable Company Analysis. In performing comparable company
analysis, Morgan Stanley analyzed the operating performance of
FIRSTIER relative to Mercantile Bancorporation Inc., Commerce
Bancshares, Inc., Liberty National Bancorp, Inc., Fourth Financial
Corporation, Old National Bancorp, United Missouri Bancshares,
Inc., National Commerce Bancorp., First Commercial Corporation,
Mark Twain Bancshares, Inc., First Michigan Bank Corp., First
Commerce Bancshares and Hawkeye Bancorporation (the
"Comparables"). Historical financial information used in
connection with the ratios provided below with respect to the
Comparables is as of December 31, 1992.
Morgan Stanley analyzed the relative performance and outlook for
FIRSTIER by comparing certain financial and market trading
information of FIRSTIER with the Comparables. Market information
used in ratios provided below is as of April 16, 1993. Among the
financial information compared was information relating to capital
adequacy and profitability. Among the market trading information
compared was market price to book value (which, as of April 16,
1993 using December 31, 1992 book value as 1.97x for FIRSTIER; the
median for the Comparables was 1.73x) and market price to earnings
per share estimates for 1993 and 1994 (which, for FIRSTIER, were
10.9x and 10.0x for 1993 and 1994, respectively; the median for
the Comparables was 12.7x and 11.1x for 1993 and 1994,
respectively). Earnings per share estimates for FIRSTIER were
based on internal estimates ($4.19 and $4.54 in 1993 and 1994
respectively). Earnings for the Comparables were based on
Institutional Brokers Estimate System (IBES) estimates as of March
18, 1993. The values for FIRSTIER derived from such analysis
ranged from approximately $31 to $60 per share of FIRSTIER Common
Stock.
Comparable Transaction Analysis. Morgan Stanley performed an
analysis of premiums paid for selected banks and bank holding
companies in order to obtain a valuation range based upon recent
transactions similar to the Merger. Multiples of market value,
earnings and book value implied by the consideration to be
received by shareholders of FIRSTIER in the Merger were compared
with multiples paid in comparable bank transactions. Comparable
transactions were considered to include transactions since 1991
with transaction values exceeding $200 million. Between January
1, 1991 and April 18, 1993, there were 33 such transactions.
These transactions were the then pending transactions between Ohio
Bancorp and National City Corporation; Commonwealth Bancshares
Corp. and Meridian Bancorp Inc.; First American Metro Corp. and
First Union Corporation; MNC Financial, Inc. and NationsBank
Corporation; National Community Banks, Inc. and The Bank of New
York Company; Colorado National Bankshares and First Bank System,
Inc.; Key Centurion Bancshares, Inc. and BANC ONE Corporation and
Multibank Financial Corp. and Bank of Boston Corporation and the
transactions between Dominion Bankshares Corporation and First
Union Corporation; Equimark Corporation and Integra Financial
Corporation; First Florida Banks, Inc. and Barnett Banks, Inc.;
Valley National Corporation and BANC ONE Corporation; Team
Bancshares, Inc. and BANC ONE Corporation; INB Financial
Corporation and NBD Bancorp, Inc.; Puget Sound Bancorp and
KeyCorp; Sunwest Financial Services, Inc. and Boatmen's
Bancshares, Inc.; Bank Shares Incorporated and First Bank System;
Affiliated Bankshares of Colorado and BANC ONE Corporation;
Summcorp and NBD Bancorp, Inc.; First Security Corp. of Kentucky
and BANC ONE Corporation; Merchants National Corporation and
National City Corporation; Manufacturers National Corp. and
Comerica Incorporated; Ameritrust Corporation and Society
Corporation; Security Bancorp, Inc. and First of America Bank
Corp.; Security Pacific Corporation and BankAmerica Corporation;
Valley Capital Corporation and BankAmerica Corporation; C&S/Sovran
Corporation and NCNB Corporation; Davenport Bank & Trust Company
and Norwest Corporation; Manufacturers Hanover Corp. and Chemical
Banking Corporation; South Carolina National Corp. and Wachovia
Corporation; First Illinois Corporation and BANC ONE Corporation;
FNW Bancorp, Inc. and NBD Bancorp, Inc. and Central Bancorp (PNC
Financial) and BANC ONE Corporation. The analysis yielded a range
of transaction values to market values of approximately 1.0x to
1.8x with a mean of approximately 1.5x (compared to approximately
1.3x for the Merger, based on the market values of BANC ONE Common
Stock and FIRSTIER Common Stock as of April 16, 1993), last-
twelve-month earnings multiples of approximately 9.2x to 39.9x
with a mean of approximately 19.4x (compared to approximately
16.8x for the Merger) and book value multiples of approximately
0.7x to 2.9x with a mean of approximately 1.9x (compared to
approximately 2.6x for the Merger).
Additionally, Morgan Stanley performed an analysis of premiums
paid for the subset of selected banks and bank holding companies
in the midwestern U.S. in the above mentioned universe similar to
the analysis performed on the entire universe detailed above.
Between January 1, 1991 and April 18, 1993, there were 15 such
transactions. The analysis yielded a range of transaction values
to market values of approximately 1.0x to 1.8x with a mean of
approximately 1.5x (compared to approximately 1.3x for the Merger,
based upon the market values of BANC ONE Common Stock and FIRSTIER
Common Stock as of April 16, 1993), last-twelve-months earnings
multiples of approximately 9.2x to 26.5x with a mean of
approximately 15.8x (compared to approximately 16.8x for the
Merger) and book value multiples of approximately 1.3x to 2.8x
with a mean of approximately 1.9x (compared to approximately 2.6x
for the Merger).
No company or transaction used in the comparable company and
comparable transaction analyses is identical to FIRSTIER, BANC ONE
or the Merger. Accordingly, an analysis of the results of the
foregoing necessarily involves complex considerations and
judgments concerning differences in financial and operating
characteristics of FIRSTIER and BANC ONE and other factors that
could affect the public trading value or the acquisition value of
the companies to which they are being compared. Mathematical
analysis (such as determining the average or median) is not in
itself a meaningful method of using comparable transaction data or
comparable company data.
Dividend Discount Analysis. Morgan Stanley performed a dividend
discount analysis, pursuant to which a range of stand-alone values
of FIRSTIER was determined by adding (i) the present value of
estimated future dividend streams that FIRSTIER could generate
over the three-year period beginning in 1993 and ending in 1995
and (ii) the present value of the "terminal value" of FIRSTIER
Common Stock at the end of 1995 (i.e., the estimated present value
of the projected values of FIRSTIER Common Stock at the end of
1995). The "terminal value" of FIRSTIER Common Stock at the end
of the three-year period was determined by applying a range of
1995 projected price to book value multiples (from 1.25x to 2.25x)
and 1995 projected price to earnings multiples (from 7x-13x) for
FIRSTIER. Earnings projections used in connection with dividend
projections were projected assuming FIRSTIER performed in
accordance with the earnings forecast of FIRSTIER's management.
Dividend streams and terminal values were discounted to present
values using discount rates of 10.0% and 11.0%, which rates were
chosen to reflect different assumptions regarding the required
rate of return of holders or prospective buyers of FIRSTIER Common
Stock. The values of FIRSTIER Common Stock ranged from
approximately $29 to $50 per share of FIRSTIER Common Stock.
Additional Analyses. In addition to its valuation methodologies,
Morgan Stanley analyzed the projected cost savings, pro forma
merger results and certain financial and market characteristics of
BANC ONE.
Projected Cost Savings. The cost savings estimated to result from
the Merger were estimated by the managements of FIRSTIER and BANC
ONE to be approximately 15% of FIRSTIER's fourth quarter 1992
annualized noninterest expense phased-in evenly over two years.
Morgan Stanley performed analyses to estimate the present value of
these cost savings. The present value of these cost savings were
estimated to range from approximately $95 million to $125 million
based on the cost savings being phased-in equally over two years,
growing at 2% to 4% into perpetuity after 1995, a discount rate of
11.0% and the inclusion of initial restructuring charges estimated
to result from the Merger which were assumed to equal 75% of fully
phased-in cost savings.
Pro Forma Merger Analysis. The effect of the Merger on the
financial projections of BANC ONE was analyzed. BANC ONE's
projections were compared to pro forma combined company
projections for earnings per share, book value and dividends
assuming the Merger was consummated on January 1, 1994. Such
analysis showed that the Merger would be accretive to BANC ONE's
projected earnings per share for 1994 and 1995 projected earnings
per share at the proposed Exchange Rate. This analysis was based
on estimates of expected cost savings and numerous other
assumptions. The actual results achieved by the combined company
will vary from the projected results and the variations may be
material.
Analysis of BANC ONE. Morgan Stanley reviewed certain of BANC
ONE's operations including its geographic distribution of assets,
revenue composition and fee-generating business assets. Morgan
Stanley also analyzed certain of BANC ONE's financial information
including its market price performance as a multiple of its book
value, market price performance as a multiple of historical and
projected earnings per share, dividend history, profitability
(including return on assets, return on equity and earnings per
share growth) as well as other financial and trading
characteristics of BANC ONE. Additionally, the premiums paid in
selected BANC ONE transactions from 1986 to 1993 were examined.
Morgan Stanley also presented a summary of recent analyst
commentaries on BANC ONE from the major research analysts that
cover BANC ONE Common Stock.
The preparation of a fairness opinion is not necessarily
susceptible to partial analysis or summary description. Morgan
Stanley believes that its analyses and the summary set forth above
must be considered as a whole and that selecting portions of its
analyses without considering all factors and analyses could create
an incomplete view of the process underlying its opinion. In
addition, Morgan Stanley may have given various analyses more or
less weight than other analyses, and may have deemed various
assumptions more or less probable than other assumptions, so that
the ranges of valuations resulting from any particular analysis
described above should not be taken to be Morgan Stanley's view of
the actual value of FIRSTIER.
In performing its analyses, Morgan Stanley made numerous
assumptions with respect to industry performance, general business
and economic conditions and other matters, many of which are
beyond the control of BANC ONE or FIRSTIER. The analyses
performed by Morgan Stanley are not necessarily indicative of
actual values or actual future results, which may be significantly
more or less favorable than suggested by such analyses. Such
analyses were prepared solely as part of Morgan Stanley's analysis
of the fairness of the Exchange Rate to FIRSTIER's shareholders
and were provided to the FIRSTIER Board of Directors in connection
with the delivery of Morgan Stanley's oral opinion. The analyses
do not purport to be appraisals or to reflect the prices at which
a company might actually be sold. In addition, as described
above, Morgan Stanley's opinion and presentation to the FIRSTIER
Board of Directors was one of the many factors taken into
consideration by the FIRSTIER Board of Directors in making its
determination to approve the Merger Agreement and related
transactions. Consequently, the Morgan Stanley analyses described
above should not be viewed as determinative of the FIRSTIER
Board's or FIRSTIER management's opinion with respect to the value
of the Exchange Rate or of whether the FIRSTIER Board or FIRSTIER
management would have been willing to agree to a different
Exchange Rate.
The FIRSTIER Board retained Morgan Stanley based upon its
experience and expertise. Morgan Stanley is a nationally
recognized investment banking and advisory firm. Morgan Stanley,
as part of its investment banking business, continuously engages
in the valuation of businesses and securities in connection with
mergers and acquisitions, negotiated underwritings, competitive
biddings, secondary distributions of listed and unlisted
securities, private placements and valuations for corporate and
other purposes. In the past, Morgan Stanley and its affiliates
have provided financial advisory and financing services to
FIRSTIER and BANC ONE and have received customary fees for the
rendering of such services.
Pursuant to a letter agreement dated February 17, 1993, between
FIRSTIER and Morgan Stanley, FIRSTIER has agreed to pay Morgan
Stanley a fee of $4.5 million upon consummation of the Merger. To
date Morgan Stanley has not received any advisory fees in respect
of this transaction. The letter agreement with Morgan Stanley
also provides that FIRSTIER will reimburse Morgan Stanley for its
reasonable out-of-pocket expenses and will indemnify Morgan
Stanley against certain liabilities, including liabilities under
securities laws, incurred in connection with its services.
Effective Time
If the Merger Agreement is approved by the requisite votes of the
shareholders of FIRSTIER and the Merger is approved by the Federal
Reserve and the Nebraska Department of Banking, and the other
conditions to the Merger are satisfied or waived, the Effective
Time shall be the later of the date of the completion of the
filing of the articles of merger with the Secretary of State of
the State of Nebraska with respect thereto pursuant to the
applicable provisions of the Nebraska Business Corporation Act and
the completion of the filing of a certificate of merger with the
Secretary of State of the State of Ohio with respect thereto as
provided in applicable provisions of the Ohio General Corporation
Law. The Merger has been approved by the Federal Reserve and the
Nebraska Department of Banking. See "SUMMARY OF THE TRANSACTION--
Regulatory Approvals."
Conditions to the Merger; Termination
Consummation of the Merger is subject to satisfaction of a number
of conditions, including:
(1) the receipt of all necessary approvals of the Merger
and the transactions contemplated by the Merger
Agreement by governmental agencies and authorities,
including the Federal Reserve and the Nebraska
Department of Banking, which approvals shall remain
in full force and effect at the Effective Time;
(2) there being no change in the consolidated financial
condition, aggregate net assets, shareholders'
equity, business or operating results of FIRSTIER
and its subsidiaries, taken as a whole, or of BANC
ONE and its subsidiaries, taken as a whole, from
December 31, 1992 to the Effective Time, that has
had a Material Adverse Effect (as that term is
defined in the Merger Agreement);
(3) compliance by FIRSTIER, BANC ONE and Banc One Beta
with their respective covenants and confirmation of
their respective representations and warranties as
set forth in the Merger Agreement, including the
agreement of FIRSTIER that, except with the approval
of BANC ONE or as otherwise permitted by the Merger
Agreement, it will not
(a) from December 31, 1992 to the Effective Time,
pay any cash dividends except for cash
dividends which shall be equal to either (i)
$.20 per share per quarter for each of the
second and third quarters of 1993 and $.23 per
quarter for the fourth quarter of 1993 and each
subsequent quarter, or (ii) that amount per
share per quarter calculated by multiplying the
amount paid by BANC ONE in respect of each
share of BANC ONE Common Stock for such quarter
times the Exchange Rate; provided that no
dividend shall be paid in the calendar quarter
in which the Effective Time occurs.
(b) effect any changes in connection with its
equity capitalization except as related to the
Option and certain outstanding stock options
granted before or to be granted after May 19,
1993; or
(c) except as may be directed by any regulatory
agency, conduct its banking operations other
than in the ordinary course of business;
(4) approval and adoption of the Merger Agreement and
the Merger by the requisite vote of the holders of
FIRSTIER Common Stock (see "MERGER--General" and
"VOTING AND MANAGEMENT INFORMATION--Voting");
(5) receipt by FIRSTIER and BANC ONE of the opinion
relative to the Federal income tax consequences
referred to under the caption "MERGER--Federal
Income Tax Consequences";
(6) receipt by BANC ONE of an opinion from FIRSTIER's
counsel and receipt by FIRSTIER of opinions from
counsel for BANC ONE and Banc One Beta, which
opinions are to be in the general form of those
annexed to the Merger Agreement;
(7) satisfaction by BANC ONE and FIRSTIER of the
respective earnings tests set forth in the Merger
Agreement;
(8) fractional share interests in BANC ONE Common Stock
to be paid to former holders of FIRSTIER Common
Stock in cash in the exchange (see "MERGER--
Fractional Shares") shall not exceed 10% of the
maximum aggregate number of shares of BANC ONE
Common Stock which could be issued as a result of
the Merger;
(9) the shares of BANC ONE Common Stock to be issued to
the holders of FIRSTIER Common Stock shall have been
approved for listing on the NYSE;
(10) receipt by BANC ONE of the written opinion of
Coopers & Lybrand, independent certified public
accountants, that the transaction contemplated by
the Merger Agreement may be properly accounted for
as a pooling-of-interests;
(11) the holders of all credit agreements, if any, on
which FIRSTIER or any subsidiary is the maker,
issuer or guarantor and which contain provisions
which make the acquisition of FIRSTIER by or merger
into another entity a condition of default or
acceleration, shall have provided BANC ONE with
written waivers of all such provisions;
(12) the total number of shares of FIRSTIER Common Stock
issued and outstanding together with the total
number of shares of FIRSTIER Common Stock related to
outstanding and unexercised options (excluding the
shares of FIRSTIER Common Stock subject to the
Option granted to BANC ONE pursuant to the terms of
the Merger Agreement) shall not be more than
11,915,000;
(13) receipt by FIRSTIER of an opinion of Morgan Stanley
to the effect that, in the opinion of such firm, the
Exchange Rate is fair to the holders of FIRSTIER
Common Stock; and
(14) the employment agreements between FIRSTIER and Mr.
McDonnell, dated June 20, 1989, and FIRSTIER and Mr.
Rismiller, dated May 22, 1988, shall each have been
terminated.
Any of the provisions of the Merger Agreement, including the
foregoing conditions, may be waived at any time by the party which
is, or the shareholders of which are, entitled to the benefits
thereof; provided, however, that such waiver, if material to
FIRSTIER or its shareholders, may be made only following due
authorization by the FIRSTIER Board. The Merger Agreement may be
modified by a duly authorized written agreement of all of the
parties. However, after the shareholders of FIRSTIER have
approved the Merger Agreement, FIRSTIER may amend the Merger
Agreement only if, in the opinion of FIRSTIER's Board of
Directors, such amendment will not have any Material Adverse
Effect on the benefits intended under the Merger Agreement for the
shareholders of FIRSTIER.
The Merger Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval by the
shareholders of FIRSTIER, by written notice from BANC ONE to
FIRSTIER, or from FIRSTIER to BANC ONE, as the case may be, upon
the occurrence of any of the following: (i) if any material
condition to either party's obligations under the Merger Agreement
is not either substantially satisfied or waived at the time or
times contemplated thereby (each party's right to terminate under
this clause (i) shall relate only to conditions to that party's
obligations); (ii) in the event of a material breach by a party of
any representation, warranty, condition or agreement contained in
the Merger Agreement that is not cured within 30 days of the
giving of notice to such party by the other party; or (iii) if the
Merger shall not have been consummated on or before June 1, 1994.
The Merger Agreement also may be terminated, and the Merger
thereby abandoned, by the mutual consent of the Boards of
Directors of FIRSTIER, BANC ONE and Banc One Beta at any time
prior to the effective date of the Merger.
FIRSTIER, by action of the FIRSTIER Board, may elect to terminate
the Merger Agreement, whether before or after approval of the
Merger Agreement by the shareholders of Banc One Beta or FIRSTIER,
by giving written notice of such election to BANC ONE within two
NYSE trading days after the Valuation Period provided that the
Average BANC ONE Closing Price during the Valuation Period is less
than $41.60. Upon receipt of such notice BANC ONE shall have the
option to (i) nullify FIRSTIER's election to terminate the Merger
Agreement by increasing the Exchange Rate to the Increased
Exchange Rate, or (ii) accept FIRSTIER's election to terminate the
Merger Agreement by giving written notice to FIRSTIER of such
acceptance of termination within two NYSE trading days of BANC
ONE's receipt of FIRSTIER's notice. Upon BANC ONE's notice to
FIRSTIER of such acceptance of termination, the Merger Agreement
shall be terminated. FIRSTIER shall then be obligated to deliver
to BANC ONE, within two NYSE trading days of its receipt of BANC
ONE's written notice of acceptance of termination, a certified or
cashier's check in the amount of $1,000,000 as liquidated damages.
If the Merger is not consummated other than by reason of a willful
breach of any party to the Merger Agreement or pursuant to
FIRSTIER's election to terminate the Merger Agreement described in
the immediately preceding paragraph, FIRSTIER, BANC ONE and Banc
One Beta will each pay all of its own expenses incurred incident
to such transaction, except for printing expenses which will be
paid by BANC ONE.
Federal Income Tax Consequences
The following is a summary of certain material U.S. Federal income
tax consequences of the Merger, including certain consequences to
holders of FIRSTIER Common Stock who are citizens or residents of
the United States and who hold their shares as capital assets. It
does not discuss all tax consequences that may be relevant to
FIRSTIER shareholders subject to special Federal income tax
treatment (such as insurance companies, dealers in securities,
certain retirement plans, financial institutions, tax exempt
organizations or foreign persons), or to FIRSTIER shareholders who
acquired their shares of FIRSTIER Common Stock pursuant to the
exercise of employee stock options or otherwise as compensation.
The summary does not address the state, local or foreign tax
consequences of the Merger, if any.
Pursuant to the terms of the Merger Agreement, FIRSTIER and BANC
ONE will receive the opinion of Sullivan & Cromwell, dated as of
the Effective Time, to the effect that based upon the Internal
Revenue Code and regulations thereunder and rulings issued by the
Internal Revenue Service in transactions similar to those
contemplated by the Merger Agreement and assuming the Merger
occurs in accordance with the Merger Agreement and conditioned on
the accuracy of certain representations made by FIRSTIER and BANC
ONE, for Federal income tax purposes:
(1) The Merger will constitute a reorganization within
the meaning of Section 368(a)(1)(A) and
Section 368(a)(2)(E) of the Internal Revenue Code;
(2) No gain or loss will be recognized by BANC ONE or
FIRSTIER as a consequence of the transactions
contemplated by the Merger Agreement;
(3) No gain or loss will be recognized by the
shareholders of FIRSTIER on the exchange of their
shares of FIRSTIER Common Stock for shares of BANC
ONE Common Stock (disregarding for this purpose any
cash received for fractional share interests to
which they may be entitled);
(4) The Federal income tax basis of the BANC ONE Common
Stock received by holders of FIRSTIER Common Stock
for their shares of FIRSTIER Common Stock will be
the same as the Federal income tax basis of the
FIRSTIER Common Stock surrendered in exchange
therefor (reduced by any amount allocated to
fractional share interests for which cash is
received); and
(5) The holding period of the BANC ONE Common Stock
received by a holder of FIRSTIER Common Stock will
include the period for which the FIRSTIER Common
Stock exchanged therefor was held, provided the
exchanged FIRSTIER Common Stock was held as a
capital asset by such holder on the date of the
exchange.
A FIRSTIER shareholder who receives cash in lieu of a fractional
share interest in BANC ONE Common Stock will be treated as having
received the cash in redemption of the fractional share interest.
The receipt of cash in lieu of a fractional share interest should
generally result in capital gain or loss to the holder equal to
the difference between the amount of cash received and the portion
of the holder's Federal income tax basis in the FIRSTIER Common
Stock allocable to the fractional share interest. Such capital
gain or loss will be long-term capital gain or loss if the
holder's holding period for the BANC ONE Common Stock received,
determined as set forth above, is longer than one year.
THE INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND IS BASED ON THE INTERNAL REVENUE CODE (AND
AUTHORITIES THEREUNDER) AS IN EFFECT ON THE DATE OF THIS
PROSPECTUS AND PROXY STATEMENT, WITHOUT CONSIDERATION OF THE
PARTICULAR FACTS OR CIRCUMSTANCES OF ANY SHAREHOLDER.
SHAREHOLDERS ARE URGED TO CONSULT WITH THEIR OWN TAX ADVISORS WITH
RESPECT TO THE FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER IN
THEIR PARTICULAR SITUATIONS, AS WELL AS CONSEQUENCES UNDER ANY
APPLICABLE STATE, LOCAL OR FOREIGN TAX LAWS.
Conversion of Shares and Exchange of Certificates
The Merger Agreement provides that at the Effective Time, the
outstanding shares of FIRSTIER Common Stock will be converted into
shares of BANC ONE Common Stock at the Exchange Rate calculated as
described under the caption "MERGER--Exchange Rate." Except in
the event that either FIRSTIER or BANC ONE shall declare a stock
dividend or distribution upon or subdivide, split up, reclassify
or combine its respective Common Stock or declare a dividend, or
make a distribution, on its respective Common Stock in any
security convertible into such Common Stock prior to the Effective
Time, no further adjustments will be made in the Exchange Rate.
However, in the event of such a transaction, appropriate
adjustment will be made in the Exchange Rate. The Exchange Rate
has been adjusted to reflect the 5 shares for 4 shares common
stock split paid in the form of a dividend to shareholders of BANC
ONE by BANC ONE on August 31, 1993.
As soon as practicable after the Effective Time, instructions and
forms will be furnished to the former shareholders of FIRSTIER for
use in surrendering for cancellation and exchanging their FIRSTIER
Common Stock share certificates for certificates for shares of
BANC ONE Common Stock. If any certificate for shares of BANC ONE
Common Stock is to be issued in a name other than that in which
the certificate for shares of FIRSTIER Common Stock surrendered
for exchange is registered, the certificate so surrendered must be
properly endorsed or otherwise be in proper form for transfer and
the person requesting such exchange must pay to BANC ONE or its
transfer agent any applicable transfer or other taxes required by
reason of the issuance of the certificate.
Until so surrendered, certificates formerly representing shares of
FIRSTIER Common Stock will be deemed for all purposes to evidence
ownership of the number of shares of BANC ONE Common Stock into
which such shares have been converted. Dividends and other
distributions, if any, that become payable in respect of BANC ONE
Common Stock pending exchange of certificates representing shares
of FIRSTIER Common Stock will be retained by BANC ONE until
surrender of such certificates, at which time such dividends and
distributions will be paid, without interest. In addition, after
the Effective Time, the holders of certificates formerly
representing shares of FIRSTIER Common Stock shall cease to have
rights with respect to such shares, and, except as aforesaid,
their sole rights shall be to exchange such certificates for
shares of BANC ONE Common Stock in accordance with the Merger
Agreement.
Fractional Shares
No certificates for fractional shares of BANC ONE Common Stock
will be issued in connection with the exchange contemplated by the
Merger Agreement. In lieu thereof, each shareholder of FIRSTIER
having a fractional interest resulting from the exchange of
FIRSTIER Common Stock for BANC ONE Common Stock will be paid by
BANC ONE an amount in cash equal to the value of such fractional
interest based upon the Average BANC ONE Closing Price of BANC ONE
Common during the Valuation Period.
Resales by Affiliates
The shares of BANC ONE Common Stock issuable to FIRSTIER
shareholders upon consummation of the Merger have been registered
under the Securities Act, but such registration does not cover
resales by any person who, directly or indirectly, controls, or is
controlled by, or is under common control with FIRSTIER at the
time the Merger Agreement is submitted for approval by a vote of
the shareholders of FIRSTIER (individually, a "FIRSTIER Affiliate"
and collectively, "FIRSTIER Affiliates"). BANC ONE Common Stock
received and beneficially owned by those FIRSTIER shareholders who
are deemed to be FIRSTIER Affiliates may be resold without
registration as provided for by Rule 145 under the Securities Act,
or as otherwise permitted. Each FIRSTIER Affiliate who desires to
resell the BANC ONE Common Stock received in the Merger must sell
such BANC ONE Common Stock either (i) pursuant to an effective
registration statement under the Securities Act, (ii) in
accordance with the applicable provisions of Rule 145 under the
Securities Act or (iii) in a transaction which, in the opinion of
counsel for such FIRSTIER Affiliate or as described in a "no-
action" or interpretive letter from the Staff of the Commission,
in each case reasonably satisfactory in form and substance to BANC
ONE, states that such resale is exempt from the registration
requirements of the Securities Act.
Rule 145(d) requires that persons deemed to be FIRSTIER Affiliates
resell their BANC ONE Common Stock pursuant to certain of the
requirements of Rule 144 under the Securities Act if such BANC ONE
Common Stock is sold within the first two years after the receipt
thereof. After two years, if such person is not a person who,
directly or indirectly, controls, is controlled by, or is under
common control with BANC ONE (a "BANC ONE Affiliate") and BANC ONE
is current in the filing of its periodic securities law reports,
a former FIRSTIER Affiliate may freely resell the BANC ONE Common
Stock received in the Merger without limitation. After three
years from the issuance of the BANC ONE Common Stock, if such
person is not a BANC ONE Affiliate at the time of sale or for at
least three months prior to such sale, such person may freely
resell such BANC ONE Common Stock, without limitation, regardless
of the status of BANC ONE's periodic securities law reports.
FIRSTIER has agreed to provide BANC ONE with a list of those
persons who may be deemed to be FIRSTIER Affiliates at the time of
the Special Meeting. FIRSTIER will use its best efforts to cause
each such person to deliver to BANC ONE prior to the Effective
Time a written agreement to the effect that no sale will be made
of any shares of BANC ONE Common Stock received in the Merger by
a FIRSTIER Affiliate except (i) in accordance with the Securities
Act and (ii) if, as it expects to do, BANC ONE utilizes pooling-
of-interests accounting in accounting for the Merger, until such
time as BANC ONE shall first publish the financial results of at
least 30 days of post-merger combined operations of FIRSTIER and
BANC ONE, provided that BANC ONE shall publish such results not
later than four months from the Effective Time. The certificates
of BANC ONE Common Stock issued to FIRSTIER Affiliates in the
Merger may contain an appropriate restrictive legend, and
appropriate stop transfer orders may be given to the transfer
agent for such certificates.
Accounting Treatment
BANC ONE expects to account for the acquisition of FIRSTIER as a
pooling-of-interests.
The Option
As a condition to BANC ONE's entering into the Merger Agreement,
and in consideration, therefor, FIRSTIER and BANC ONE entered into
the Option Agreement on April 20, 1993, pursuant to which FIRSTIER
granted BANC ONE the Option. The Option Agreement is intended to
increase the likelihood that the Merger will be consummated by
making it more difficult and more expensive for another party to
obtain control of or acquire FIRSTIER.
Grant of Option. The Option entitles BANC ONE to purchase up to
2,281,000 authorized but unissued shares of FIRSTIER Common Stock,
representing 19.9% of the shares of FIRSTIER Common Stock issued
and outstanding on April 19, 1993, at $54.50 per share (the
closing trade price of a share of FIRSTIER Common Stock on the
NASDAQ National Market System on April 19, 1993). If any
additional shares of FIRSTIER Common Stock are issued or otherwise
become outstanding after the date of the Option Agreement, the
number of shares of FIRSTIER Common Stock subject to the Option
will be increased so that, after that issuance, the number of
shares of FIRSTIER Common Stock subject to the Option equals 19.9%
of the number of shares of FIRSTIER Common Stock then issued and
outstanding without giving effect to any shares subject to or
issued pursuant to the Option.
Triggering Events; Exercise of Option. The Option Agreement
provides that BANC ONE may exercise the Option, in whole or in
part, at any time or from time to time after the occurrence of
both an Initial Triggering Event (as hereinafter defined) and a
Purchase Event (as hereinafter defined) if, but only if, both the
Initial Triggering Event and the Purchase Event shall have
occurred prior to the occurrence of an Option Termination Event
(as hereinafter defined) by giving written notice of such exercise
within 30 days following such Purchase Event.
For purposes of the Option Agreement:
(a) The term "Initial Triggering Event" means the
occurrence of any of the following events and the good faith
determination by BANC ONE that there is a reasonable likelihood
that as a result of the occurrence of any such event, consummation
of the Merger is jeopardized:
(i) any person, corporation, entity or group (other
than BANC ONE or any subsidiary or affiliate thereof)
shall have commenced a bona fide offer to purchase shares
of FIRSTIER Common Stock such that, upon consummation of
such offer, such person would own or control 10% or more
of the outstanding shares of FIRSTIER Common Stock, or
shall have entered into an agreement with FIRSTIER, or
shall have filed an application or notice with the Federal
Reserve or any other federal or state regulatory agency
for clearance or approval, to (A) merge or consolidate or
enter into any similar transaction with FIRSTIER, (B)
purchase, lease or otherwise acquire all or substantially
all of the assets of FIRSTIER, or (C) purchase or
otherwise acquire securities representing beneficial
ownership of 10% or more of the outstanding voting power
of FIRSTIER (including securities acquired by way of
merger, consolidation, share exchange or any similar
transaction);
(ii) any person (other than BANC ONE or any
subsidiary or affiliate thereof or subsidiary of FIRSTIER
in a fiduciary capacity) shall have acquired beneficial
ownership or the right to acquire beneficial ownership of
10% or more of the outstanding shares of FIRSTIER Common
Stock;
(iii) any person (other than BANC ONE or any
subsidiary or affiliate thereof) shall have made a bona
fide proposal to FIRSTIER after April 19, 1993, by public
announcement or written communication that is the subject
of public disclosure or regulatory report or filing to (A)
acquire FIRSTIER by merger, consolidation, purchase of all
or substantially all of its assets or any other similar
transaction, or (B) make an offer described in paragraph
(i), above;
(iv) any person shall have solicited proxies in a
proxy solicitation subject to Regulation 14A under the
Exchange Act in opposition to approval of the Merger
Agreement by FIRSTIER's shareholders; or
(v) FIRSTIER shall have wilfully breached any
provision of the Merger Agreement, which breach would
entitle BANC ONE to terminate the Merger Agreement, and
such breach shall not have been cured pursuant to the
terms of the Merger Agreement.
(b) The term "Purchase Event" means the occurrence of
either one of the following events:
(i) any person (other than BANC ONE or any
subsidiary or affiliate thereof) shall have acquired 50%
or more of the then outstanding shares of FIRSTIER Common
Stock; or
(ii) FIRSTIER shall have entered into an agreement
with another person (other than BANC ONE or any subsidiary
thereof) pursuant to which such person is entitled to
acquire 50% or more of the then outstanding shares of
FIRSTIER Common Stock.
(c) The occurrence of any of the following events
constitutes an Option Termination Event:
(i) the consummation of the Merger at the Effective
Time;
(ii) BANC ONE or FIRSTIER shall have received written
notice from the Federal Reserve to the effect that the
exercise of the Option pursuant to the terms of the Option
Agreement is not consistent with Section 3 of the Bank
Holding Company Act of 1956, as amended;
(iii) termination of the Merger Agreement by BANC ONE
in accordance with the provisions thereof if such
termination occurs prior to the occurrence of an Initial
Triggering Event;
(iv) the first business day after the 365th calendar
day following the termination of the Merger Agreement by
BANC ONE in accordance with the provisions thereof if such
termination occurs after the occurrence of an Initial
Triggering Event, provided that the Option shall in all
events expire not later than 18 months after such Initial
Triggering Event; provided, however, that if the Option is
otherwise exercisable but cannot be exercised on such day
solely because of any injunction, order or similar
restraint issued by a court of competent jurisdiction, the
Option shall expire on the 20th business day after such
injunction, order or restraint shall have been dissolved
or when such injunction, order or restraint shall have
become permanent and no longer subject to appeal, as the
case may be;
(v) termination of the Merger Agreement by FIRSTIER
in accordance with the provisions thereof; or
(vi) termination of the Merger Agreement by mutual
consent of BANC ONE and FIRSTIER.
As of the date hereof, no Initial Triggering Event or Purchase
Event has occurred.
Registration Rights. FIRSTIER shall, if requested by BANC ONE, as
expeditiously as possible, file a registration statement on a form
of general use under the Securities Act if necessary to permit the
sale or other disposition of the shares of FIRSTIER Common Stock
that shall have been acquired upon exercise of the Option in
accordance with the intended method of sale or other disposition
requested by BANC ONE. FIRSTIER has agreed to use its best
efforts to cause that registration statement to become effective
and to remain effective for such period not in excess of 270
calendar days from the day such registration first becomes
effective as may be reasonably necessary to effect such sale or
other disposition. BANC ONE has the right to demand one such
registration.
Termination of Option. The Option will terminate upon the
occurrence of an Option Termination Event.
COMPARATIVE RIGHTS OF SHAREHOLDERS
Description of BANC ONE Stock
General. The authorized capital stock of BANC ONE consists of
600,000,000 shares of BANC ONE Common Stock and 35,000,000 shares
of Preferred Stock, without par value ("Preferred Stock"), divided
into 10,000,000 shares of Class A Preferred Stock, 1,000,000
shares of Class B Convertible Preferred Stock ("Class B Preferred
Stock") and 24,000,000 shares of Class C Preferred Stock of which
the $3.50 Cumulative Convertible Preferred Stock constitutes a
series ("Series C Preferred Stock"). As of September 30, 1993,
there were issued and outstanding 5,000,000 shares of Series C
Preferred Stock and 341,046,391 shares of BANC ONE Common Stock,
after giving effect to the 5 for 4 share stock split in BANC ONE
Common Stock.
The following summary of the terms of BANC ONE's capital stock
does not purport to be complete and is qualified in its entirety
by reference to the applicable provisions of the Ohio General
Corporation Law and BANC ONE's Articles.
Common Stock. Holders of BANC ONE Common Stock are entitled to
receive dividends out of funds legally available therefor as and
if declared by the Board of Directors, provided that, so long as
any shares of Preferred Stock are outstanding, no dividends (other
than dividends payable in BANC ONE Common Stock) or other
distributions (including redemptions and purchases) may be made
with respect to the BANC ONE Common Stock unless full cumulative
dividends on the shares of Preferred Stock have been paid.
Holders of shares of BANC ONE Common Stock are entitled to one
vote for each share for the election of directors and on all other
matters. Holders of BANC ONE Common Stock vote together as a
class with holders of Class A Preferred Stock and Class B
Preferred Stock. Generally, holders of Series C Preferred Stock
have no voting rights.
The issued and outstanding shares of BANC ONE Common Stock are
fully paid and nonassessable. The holders of BANC ONE Common
Stock are not entitled to preemptive rights or conversion or
redemption rights. The BANC ONE Common Stock does not have
cumulative voting rights in the election of directors.
In the event of the voluntary or involuntary dissolution,
liquidation or winding up of BANC ONE, holders of BANC ONE Common
Stock will be entitled to receive, pro rata, after satisfaction in
full of the prior rights of creditors (including holders of BANC
ONE's indebtedness) and holders of Preferred Stock, all the
remaining assets of BANC ONE available for distribution.
Preferred Stock. The Board of Directors has the authority to
issue each class of Preferred Stock in one or more series and to
fix the designations, number of shares, dividends, redemption
rights, sinking fund requirements, liquidation prices, conversion
rights and other rights, qualifications, limitations or
restrictions thereon (except voting rights) as the Board of
Directors may from time to time be permitted by law to fix or
change.
Generally holders of shares of Class C Preferred Stock have no
voting rights. The approval of a majority of the outstanding
shares of Class C Preferred Stock voting together as a class is
required in order to amend BANC ONE's Articles to affect adversely
the rights of the holders of the Class C Preferred Stock or to
take any action that would result in the creation of or an
increase in the number of authorized shares senior or superior
with respect to dividends or upon liquidation to the Class C
Preferred Stock. Holders of Class C Preferred Stock also have the
right to elect two additional directors during any period in which
dividends on Class C Preferred Stock are cumulatively in arrears
in the amount of six or more full quarterly dividends.
Currently, there are outstanding shares of Class C Preferred
Stock. Holders of Class C Preferred Stock are entitled to receive
out of funds legally available therefor cumulative cash dividends
at the annual rate of $3.50 per share payable quarterly on the
last day of March, June, September and December in each year.
In the event that full cumulative dividends on outstanding shares
of Class C Preferred Stock have not been paid, no dividends may be
declared or paid on, and no amounts may be set aside or applied to
the redemption or purchase of, any shares of BANC ONE Common Stock
or any other shares of capital stock of BANC ONE ranking junior to
shares of Class C Preferred Stock.
Upon the voluntary or involuntary dissolution, liquidation or
winding up of BANC ONE, holders of Class C Preferred Stock are
entitled to receive a preferential distribution of $50 per share
plus accrued and unpaid dividends, if any.
At the option of the holder of any shares of Class C Preferred
Stock, such shares may be converted into shares of BANC ONE Common
Stock at the conversion rate then in effect. The present
conversion rate is 1.59418 shares of BANC ONE Common Stock for
each share of Class C Preferred Stock and is subject to adjustment
for stock dividends, subdivisions, splits (the conversion rate has
been adjusted to reflect the 5 shares for 4 shares common stock
split paid on August 31, 1993) and combinations and any
distribution of rights or warrants to purchase BANC ONE Common
Stock at a price per share less than the BANC ONE Common Stock's
then-current market value.
The issued shares of Class C Preferred Stock may be redeemed, in
whole or in part, by BANC ONE at its election at any time after
April 15, 1995, at a redemption price of $52.10 per share during
the period from April 15, 1995, to but not including March 31,
1996, and thereafter at the redemption prices during the 12-month
periods beginning on March 31 of the years shown below, plus
accrued and unpaid dividends, if any.
Year Redemption Price
1996. . . . . . . . . . . . . . . . . $51.75
1997. . . . . . . . . . . . . . . . . $51.40
1998. . . . . . . . . . . . . . . . . $51.05
1999. . . . . . . . . . . . . . . . . $50.70
2000. . . . . . . . . . . . . . . . . $50.35
2001 and thereafter . . . . . . . . . $50.00
Special Voting Requirements for Certain Transactions
Article Eleventh of BANC ONE's Articles incorporates, to a large
extent, the provisions of the Ohio control share acquisition
statute (Section 1701.831 of the Ohio Revised Code). Article
Eleventh sets forth procedures for obtaining shareholder consent
of "control share acquisitions" subject to the right of the Board
of Directors to screen out proposals that do not meet certain
standards set forth in Article Eleventh. Article Eleventh defines
a "control share acquisition" as any acquisition, directly or
indirectly, of shares of BANC ONE which, when added to all other
shares of BANC ONE owned or controlled by the acquiror, would
entitle the acquiror, alone or with others, to exercise or direct
the exercise of voting power in BANC ONE in the election of
directors within any of the following ranges of voting power: (a)
one-fifth or more but less than one-third; (b) one-third or more
but less than a majority; and (c) a majority or more. A bank,
broker, nominee, trustee, or other person who acquires shares in
the ordinary course of business for the benefit of others in good
faith and not for the purpose of circumventing Article Eleventh
shall, however, be deemed to have voting power only of shares in
respect of which such person would be able to exercise or direct
the exercise of votes without further instruction from others at
a meeting of shareholders called under Article Eleventh. A
control share acquisition which meets certain criteria set forth
in Article Eleventh as determined by the Board of Directors must
be presented to a meeting of the shareholders of BANC ONE and
approved by the affirmative vote of both (a) a majority of the
voting power represented at the meeting and (b) a majority of that
portion of such voting power excluding any "interested shares";
that is, those shares held by the acquiring person, executive
officers of BANC ONE and employees of BANC ONE who are also
directors. Article Eleventh may be amended by a vote of 85% of
the votes entitled to be cast by all holders of voting stock.
BANC ONE's Articles also include a "fair price" provision which is
designed to provide reasonable assurances to shareholders that in
the event any shareholder or group of shareholders acquires 20% or
more of BANC ONE's voting stock (the "Acquiror") and then seeks to
acquire all or part of the remaining voting stock through a merger
or other transaction which would force a change or termination of
the other shareholders' ownership interests (a "Business
Combination"), such other shareholders must receive consideration
at least equivalent to that paid by the Acquiror in acquiring its
20% stock interest, unless the Business Combination is approved
either (i) by a majority of directors who are unrelated to the
Acquiror or (ii) by the affirmative vote of 75% of all the votes
entitled to be cast by all holders of voting stock and 67% of the
votes entitled to be cast by all holders of voting stock held by
shareholders other than the Acquiror ("Special Shareholder Vote").
This provision operates by requiring that after an Acquiror
emerges, any Business Combination which has the effect of
requiring shareholders to surrender their shares must satisfy one
of the following conditions:
(a) Fair Consideration to Shareholders. The terms of
the Business Combination must provide for payment of
consideration which is at least equivalent to the
highest price paid to other shareholders by the
Acquiror in acquiring its 20% stock position and
must be approved by shareholders as otherwise
required by applicable law; or
(b) Unrelated Director Approval. The Business
Combination must be approved as fair to shareholders
by a majority of the directors who are not
affiliated with the Acquiror and who were directors
before the Acquiror acquired its 20% stock position
or who were nominated or elected to succeed such
directors by the other unaffiliated directors
("Unrelated Directors") and must be approved by
shareholders as otherwise required by applicable
law; or
(c) Special Shareholder Vote. The Business Combination
must be approved by a Special Shareholder Vote.
The Article containing this provision may be amended only by a
vote of 85% of the votes entitled to be cast by all holders of
voting stock, unless the amendment is approved unanimously by the
Unrelated Directors, in which case only majority shareholder
approval would be required.
Chapter 1704 of the Ohio Revised Code (the "Ohio Statute") is
similar to the "fair price" provision contained in BANC ONE's
Articles. The Ohio Statute prohibits an "Issuing Public
Corporation" from engaging in a "Chapter 1704 Transaction" with an
"Interested Shareholder" for a period of three years following the
date on which the person becomes an "Interested Shareholder"
unless, prior to such date, the directors of the "Issuing Public
Corporation" approve either the "Chapter 1704 Transaction" or the
acquisition of shares pursuant to which such person became an
"Interested Shareholder." An "Issuing Public Corporation" is an
Ohio corporation with 50 or more shareholders which has its
principal place of business, principal executive offices or
substantial assets within the State of Ohio. BANC ONE is
currently an Issuing Public Corporation. An "Interested
Shareholder" is any person who is the beneficial owner of a
sufficient number of shares to allow such person, directly or
indirectly, alone or with others, including affiliates and
associates, to exercise or direct the exercise of 10% of the
voting power of the Issuing Public Corporation. A "Chapter 1704
Transaction" includes any merger, consolidation, combination or
majority share acquisition between or involving an Issuing Public
Corporation and an Interested Shareholder or an affiliate or
associate of an Interested Shareholder. A Chapter 1704
Transaction also includes certain transfers of property, dividends
and issuance or transfers of shares, from or by an Issuing Public
Corporation or a subsidiary of an Issuing Public Corporation to,
with or for the benefit of an Interested Shareholder or an
affiliate or associate of an Interested Shareholder unless such
transaction is in the ordinary course of business of the Issuing
Public Corporation on terms no more favorable to the Interested
Shareholder than those acceptable to third parties as demonstrated
by contemporaneous transactions. Finally, Chapter 1704
Transactions include certain transactions which (i) increase the
proportionate share ownership of an Interested Shareholder, (ii)
result in the adoption of a plan or proposal for the dissolution,
winding up of the affairs or liquidation of the Issuing Public
Corporation if such plan is proposed by or on behalf of the
Interested Shareholder, or (iii) pledge or extend the credit or
financial resources of the Issuing Public Corporation to or for
the benefit of the Interested Shareholder.
After the initial three-year moratorium has expired, an Issuing
Public Corporation may engage in a Chapter 1704 Transaction if (i)
the acquisition of shares pursuant to which the person became an
Interested Shareholder received the prior approval of the board of
directors of the Issuing Public Corporation, (ii) the Chapter 1704
Transaction is approved by the affirmative vote of the holders of
shares representing at least two-thirds of the voting power of the
Issuing Public Corporation and by the holders of at least a
majority of voting shares which are not beneficially owned by an
Interested Shareholder or an affiliate or associate of an
Interested Shareholder, or (iii) the Chapter 1704 Transaction
meets certain statutory tests designed to ensure that it be
economically fair to all shareholders.
Comparison of BANC ONE Common Stock and FIRSTIER Common Stock
The rights of shareholders of BANC ONE are governed by BANC ONE's
Articles and Code of Regulations and the applicable provisions of
the Ohio law, while the rights of the shareholders of FIRSTIER are
governed by FIRSTIER's Articles of Incorporation and By-laws and
the applicable provisions of the Nebraska Business Corporation
Act. If the holders of FIRSTIER Common Stock approve the Merger
Agreement and the Merger is subsequently consummated, holders of
FIRSTIER Common Stock will become holders of BANC ONE Common
Stock. The following comparison of the rights of holders of
FIRSTIER Common Stock and BANC ONE Common Stock is based on
current terms of the governing documents of the respective
companies, and on the current provisions of applicable state law.
The rights of holders of FIRSTIER Common Stock and holders of BANC
ONE Common Stock are similar in several respects: each
shareholder is entitled to one vote for each share held on all
matters submitted to a vote of shareholders, each shareholder is
entitled to receive pro rata any assets distributed to
shareholders upon liquidation, dissolution or winding up of the
affairs of the company (after all creditors have been satisfied
and requisite preferential amounts are paid to the holders of
outstanding preferred stock), each shareholder has no preemptive
rights to subscribe for or purchase any stock or other securities
in proportion to their respective holdings upon the offering or
sale by BANC ONE or FIRSTIER of such securities to others.
Although it is impracticable to note all the differences between
Ohio law and Nebraska law generally and all of the differences
between the applicable governing documents of BANC ONE and
FIRSTIER, the following is intended to be a summary of certain
significant differences between the rights of holders of BANC ONE
Common Stock and the rights of holders of FIRSTIER Common Stock.
Election and Removal of Directors. FIRSTIER's directors are
elected by cumulative voting. This means that in an election of
directors, holders of FIRSTIER Common Stock may give one candidate
a number of votes equal to the number of directors to be elected
multiplied by the number of shares owned by the shareholder, or
distribute the number of votes among any number of candidates.
FIRSTIER's entire Board of Directors or any lesser number may be
removed, with or without cause, by a vote of the holders of the
majority of the shares then entitled to vote at an election of
directors, except that no director may be removed if the votes
cast against his removal would be sufficient to elect such
director if voted cumulatively at an election of directors at
which the same total number of votes were cast and the entire
board were then being elected. Cumulative voting makes it more
likely that sizable minority shareholders could elect minority
directors even if opposed by the other shareholders. Cumulative
voting is not allowed in the election of directors of BANC ONE.
Dividends. Under Ohio law, dividends may be paid out of surplus,
including both earned surplus and capital surplus, in cash,
property or shares of the corporation, provided that such dividend
payments are not in violation of the rights of any other class of
securities and are not made when the corporation is insolvent or
there is reasonable ground to believe that by such payment it will
be rendered insolvent. A Nebraska corporation may pay dividends
out of unreserved and unrestricted earned surplus, except when the
corporation is insolvent or when the payment thereof would render
the corporation insolvent or when the declaration or payment would
be contrary to any restrictions in the articles of incorporation.
The payment of dividends by bank holding companies also is subject
to certain regulatory constraints. Dividends paid by both BANC
ONE and FIRSTIER are subject to Federal income tax. However, it
is suggested that in connection with voting on the Merger,
shareholders contact their tax advisors to determine the tax
consequences of the Merger to them.
Antitakeover Provisions. Nebraska law contains provisions similar
to the provisions of BANC ONE's Articles relating to control share
acquisitions and provides for a moratorium on certain business
combinations in a manner similar to the Ohio Statute. Under
Nebraska's Shareholder Protection Act, shares acquired in a
control share acquisition have limited voting rights unless the
control share acquisition is approved by a vote of the
shareholders of the issuing public corporation. The Shareholder
Protection Act also prohibits any business combination with any
interested shareholder for a five-year period unless the business
combination or the acquisition of shares made by the interested
shareholder is approved by the issuing public corporation's board
of directors prior to the acquisition of such shares by the
interested shareholder. BANC ONE's Articles contain provisions
requiring a supermajority vote for certain business combinations.
See "COMPARATIVE RIGHTS OF SHAREHOLDERS--Special Voting
Requirements for Certain Transactions." FIRSTIER's Articles also
contain provisions requiring the supermajority vote of 80% of the
combined voting power of FIRSTIER's voting stock and a majority of
the combined voting power of voting stock of FIRSTIER held by
disinterested shareholders for certain business combinations
unless the business combination shall have been approved by a
majority of the disinterested directors or the transaction
constituting the business combination provides for fair
consideration to the shareholders. In most respects, the
supermajority provisions of FIRSTIER's Articles are substantially
similar to the supermajority provisions of BANC ONE's Articles.
Mergers, Acquisitions and Certain Other Transactions. Nebraska
law generally requires the affirmative vote of the holders of at
least two-thirds of the outstanding shares of each class entitled
to vote to approve a merger, consolidation, share exchange or
sale, lease, exchange or other disposition of all or substantially
all of FIRSTIER's assets. Under BANC ONE's Articles, the
affirmative vote of the holders of a majority of the shares of
BANC ONE Common Stock is required to approve such transactions
except that the "fair price" provisions require a supermajority
vote for certain business combinations. See "COMPARATIVE RIGHTS
OF SHAREHOLDERS--Special Voting Requirements for Certain
Transactions." No vote of FIRSTIER shareholders is required to
approve a plan of merger if (a) FIRSTIER is the surviving
corporation of the merger, (b) the related plan of merger does not
amend FIRSTIER's Articles, (c) each share of FIRSTIER stock
outstanding immediately before the merger is to be an identical
outstanding or treasury share of FIRSTIER after the merger and (d)
the number of shares of FIRSTIER to be issued in the merger (or to
be issuable upon conversion of any convertible instruments to be
issued in the merger) does not exceed 20% of the voting stock of
FIRSTIER outstanding immediately before the merger.
In addition to being subject to the laws of Nebraska and Ohio,
respectively, both FIRSTIER and BANC ONE, as bank holding
companies, are subject to various provisions of federal law with
respect to mergers, consolidations and certain other corporate
transactions.
Evaluation of Tender Offers and Business Combinations. In
evaluating an acquisition proposal, Ohio law includes a provision
which permits directors, in determining whether any matter is in
the best interests of the corporation, to take into consideration
the interests of the corporation's employees, suppliers, creditors
and customers, the economy of the state and the nation, community
and societal considerations and the long-term and short-term
interests of the corporation and its shareholders, including the
possibility that such interests may be best served by the
continued independence of the corporation. Similarly, under
Nebraska law, a director may, but need not, in considering the
best interests of a corporation, consider, among other things, the
effects of any action on employees, suppliers, creditors and
customers of the corporation and communities in which offices or
other facilities of the corporation are located.
Amendment of Governing Documents. BANC ONE's Articles may be
amended by the affirmative vote of the holders of a majority of
the voting power of BANC ONE, except that amendments to the
"control share acquisition" and "fair price" provisions require a
supermajority vote. See "COMPARATIVE RIGHTS OF SHAREHOLDERS--
Special Voting Requirements for Certain Transactions." The Code
of Regulations of BANC ONE may only be amended by the affirmative
vote of a majority of the voting power represented by the
outstanding voting stock of BANC ONE present in person or by proxy
at an annual or special meeting called for such purpose. Under
Nebraska law, amendments to FIRSTIER's Articles require the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of FIRSTIER's Common Stock.
Appraisal Rights.
Under Nebraska Law, the right of a dissenting shareholder to
receive payment of the fair value of his shares pursuant to
Section 21-2079 of the Nebraska Business Corporation Act does not
apply to shareholders of a bank holding company. Under Ohio Law,
dissenting shareholders, including shareholders of a bank holding
company, are entitled to appraisal rights in connection with the
lease, sale, exchange, transfer or other disposition of all or
substantially all of the assets of a corporation and in connection
with certain amendments to its articles of incorporation. In
addition, shareholders of an Ohio corporation being merged into a
new corporation are also entitled to appraisal rights.
Shareholders of an acquiring corporation are entitled to appraisal
rights in a merger, combination or majority share acquisition in
which such shareholders are entitled to voting rights.
Indemnification
Nebraska law provides that a corporation may indemnify an officer,
director, employee or agent against liability incurred in any
proceeding if such person conducted himself in good faith and in
a manner he reasonably believed to be in or not opposed to the
corporation's best interests. In the case of any criminal
proceeding, it is further required that such person have no
reasonable cause to believe his conduct was unlawful. A
corporation must indemnify an officer, director, employee or agent
against expenses actually and reasonably incurred by him when such
person is successful, on the merits or otherwise, in defense of
any proceeding to which he was a party. A corporation may also
pay for or reimburse reasonable expenses incurred by an officer,
director, employee or agent in advance of the final disposition of
the proceeding when certain criteria are met.
A corporation may not indemnify an officer, director, employee or
agent in connection with a proceeding by or in the right of the
corporation in which the director is adjudged liable to the
corporation for negligence or misconduct in the performance of his
duty to the corporation unless and only to the extent that the
court in which the action or suit was brought shall determine upon
application that despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such
court shall deem proper.
Under Ohio law, Ohio corporations are authorized to indemnify
directors, officers and agents within prescribed limits and must
indemnify them under certain circumstances. Ohio law does not
provide statutory authorization for a corporation to indemnify
directors and officers for settlements, fines or judgments in the
context of derivative suits. However, it provides that directors
(but not officers) are entitled to mandatory advancement of
expenses, including attorneys' fees, incurred in defending any
action, including derivative actions, brought against the
director, provided that the director agrees to cooperate with the
corporation concerning the matter and to repay the amount advanced
if it is proved by clear and convincing evidence that his act or
failure to act was one with deliberate intent to cause injury to
the corporation or with reckless disregard for the corporation's
best interests. Ohio law does not authorize payment of expenses
or judgments to an officer or other agent after a finding of
negligence or misconduct in a derivative suit absent a court
order. Indemnification is required, however, to the extent such
person succeeds on the merits. In all other cases, if a director
or officer acted in good faith and in a manner he reasonably
believed to be in (or not opposed to) the best interests of the
corporation, indemnification is discretionary except as otherwise
provided by a corporation's articles, code of regulations or by
contract except with respect to the advancement of expenses of
directors. The statutory right to indemnity is not exclusive in
Ohio. Ohio law provides express authority for Ohio corporations
to procure not only insurance policies, but also to furnish
protection similar to insurance, including trust funds, letters of
credit and self-insurance, or to provide similar protection such
as indemnity against loss of insurance.
Ohio law has codified the traditional business judgment rule.
Ohio law provides that the business judgment presumption of good
faith may only be overcome by clear and convincing evidence,
rather than the preponderance of the evidence standard applicable
in most states. Further, Ohio law provides specific statutory
authority for directors to consider, in addition to the interests
of the corporation's shareholders, other factors such as the
interests of the corporation's employees, suppliers, creditors and
customers; the economy of the state and nation; community and
societal considerations; the long-term and short-term interests of
the corporation and its shareholders; and the possibility that
these interests may be best served by the continued independence
of the corporation.
Rights Plan
On February 17, 1992, the FIRSTIER Board authorized and declared
a dividend distribution of one right (a "Right") for each share of
FIRSTIER Common Stock outstanding as of the close of business on
March 6, 1992, each Right representing the right to purchase one
one-thousandth (a "Unit") of a share of Series A Junior
Participating Preferred Stock, $30.00 par value per share of
FIRSTIER at a price of $190.00 per Unit, subject to adjustment.
Pursuant to the terms of a Rights Agreement dated as of February
17, 1992 (the "Rights Agreement") between FIRSTIER and NBD Bank,
N.A., as Rights Agent (the "Rights Agent"), each Right remained
attached to a share of FIRSTIER Common Stock and was not
exercisable except under the limited circumstances set forth in
the Rights Agreement, relating generally to certain persons (each,
an "Acquiring Person") who, directly or indirectly, has beneficial
ownership or the right to acquire beneficial ownership of 20% or
more of the then outstanding shares of FIRSTIER Common Stock. The
Rights Agreement contained certain antitakeover provisions which
were triggered when a person became an Acquiring Person, when
FIRSTIER engaged in certain related party transactions with an
Acquiring Person or when certain events occurred while there was
an Acquiring Person. Pursuant to the Rights Agreement, the Rights
were to expire on February 16, 2002 unless earlier redeemed for
$.01 per Right (the "Redemption Price").
On August 16, 1993, pursuant to authorization of the Board of
Directors, FIRSTIER and the Rights Agent entered into an Amendment
to Rights Agreement (the "Amendment") which, among other things,
provided that neither BANC ONE nor any Affiliate or Associate of
BANC ONE (as defined in the Rights Agreement) would be deemed an
Acquiring Person solely as a result of (i) the execution and
delivery of the Merger Agreement, (ii) the execution and delivery
of the Option Agreement, or (iii) the consummation of the
transactions contemplated by either the Merger Agreement or the
Option Agreement. The Amendment further provided that FIRSTIER,
by the vote of a majority of the Unaffiliated Directors (as
defined in the Rights Agreement), could redeem the Rights at the
Redemption Price if (i) such redemption was to be effected in
connection with certain transactions including the transactions
contemplated by the Merger Agreement, and (ii) a majority of the
Unaffiliated Directors approved any such transaction as being in
the best interests of the shareholders of FIRSTIER after receiving
the opinion of one or more investment banking firms that the
consideration to be received in such transaction by the holders of
FIRSTIER Common Stock was fair to such shareholders from a
financial point of view. On October 1, 1993, pursuant to the
requisite vote of the Unaffiliated Directors, all of the Rights
were redeemed at the Redemption Price and the Rights Agreement was
terminated.
MISCELLANEOUS INFORMATION
Transfer and Exchange Agents
Bank One, Indianapolis, N.A., Indianapolis, Indiana, serves as
Transfer Agent and as Registrar for BANC ONE Common Stock. Bank
One, Indianapolis, N.A. will act as Exchange Agent in connection
with the Merger. NBD Bank, N.A. acts as Transfer Agent and as
Registrar for FIRSTIER Common Stock.
Interests of Named Experts and Counsel
The consolidated financial statements of BANC ONE incorporated by
reference in this Prospectus have been audited by Coopers &
Lybrand, independent public accountants, to the extent and for the
years included in their reports, which reports are included or are
incorporated herein, and have been so included or incorporated in
reliance upon their reports given on the authority of that firm as
experts in accounting and auditing. The financial statements of
FIRSTIER incorporated by reference in this Prospectus have been
audited by Arthur Andersen (in the case of the financial
statements for the year ended December 31, 1992) and by KPMG Peat
Marwick (in the case of the financial statements for the years
ended December 31, 1991 and 1990), to the extent and for the years
included in their reports, which reports are included or are
incorporated herein, and have been so included or incorporated in
reliance upon their reports given on the authority of that firm as
experts in accounting and auditing.
Certain legal matters will be passed upon for FIRSTIER by Thomas
B. Fischer, General Counsel of FIRSTIER. An opinion on the
Federal income tax consequences of the proposed transaction will
be issued by Sullivan & Cromwell. An opinion on the validity of
the BANC ONE Common Stock offered hereby has been passed upon by
Roman J. Gerber, General Counsel of BANC ONE.
Sources of Information
The information concerning BANC ONE and FIRSTIER has been supplied
by the management of the respective companies.
Registration Statement
This Prospectus and Proxy Statement does not include all of the
information set forth or incorporated by reference in the
Registration Statement on Form S-4 and the exhibits thereto filed
by BANC ONE with the Commission under the Securities Act. The
Registration Statement may be inspected at the principal office of
the Commission in Washington, D.C., and copies may be obtained
upon payment of prescribed fees. See "AVAILABLE INFORMATION" for
addresses of the Commission's offices. Reference is hereby made
to the Registration Statement and exhibits thereto for further
information pertaining to BANC ONE and FIRSTIER.
Other Matters
The FIRSTIER Board does not know of any other matters which may
come before the Special Meeting.
B. INFORMATION ABOUT BANC ONE
General -- Business.
BANC ONE is a multi-bank holding company with bank subsidiaries in
Arizona, California, Colorado, Ohio, Illinois, Indiana, Kentucky,
Michigan, Texas, Utah, West Virginia and Wisconsin. At September
30, 1993, BANC ONE had consolidated total assets of $76.5 billion,
consolidated total deposits of approximately $59.1 billion and
consolidated total shareholders' equity of approximately
$6.8 billion. At September 30, 1993, BANC ONE ranked eighth among
the nation's publicly-owned bank holding companies in terms of
period-end assets and at December 31, 1992, BANC ONE ranked sixth
among the nation's publicly owned bank holding companies in terms
of period-end common equity. At September 30, 1993, BANC ONE's
return on average assets was 1.54%.
As of June 30, 1993, BANC ONE owned indirectly all of the
outstanding stock of 78 commercial banks (the "Affiliate Banks").
Except for Bank One, Texas, N.A., BANC ONE had no single Affiliate
Bank comprising in excess of 20% of its consolidated assets at
September 30, 1993. Based on total assets as of [September] 30,
1993, BANC ONE's Affiliate Banks ranked second in Arizona and
Ohio, first in Indiana, third in Colorado, Texas and Wisconsin.
The Affiliate Banks have smaller statewide market shares in the
other states in which BANC ONE operates. BANC ONE also owns
subsidiaries which offer services in the areas of mortgage
banking, credit card processing, consumer finance, equipment
leasing, fiduciary and trust services, venture capital, credit
life insurance, discount brokerage and data processing.
Since its formation in 1968, BANC ONE has acquired over 100
banking institutions and the number of banking offices of its
affiliate banks has increased from 24 to over 1,300. BANC ONE
anticipates that it will continue to expand by acquisition in the
future. BANC ONE is frequently in discussions regarding possible
acquisitions. See "Recent Developments" for information with
respect to pending and potential acquisitions.
BANC ONE is a legal entity separate and distinct from its
affiliate banks and its nonbanking subsidiaries. Accordingly, the
right of BANC ONE, and thus the right of BANC ONE's creditors and
shareholders, to participate in any distribution of the assets or
earnings of any affiliate bank or other subsidiary is necessarily
subject to the prior claims of creditors of the affiliate bank or
subsidiary, except to the extent that claims of BANC ONE in its
capacity as a creditor may be recognized. The principal source of
BANC ONE's revenues is dividends and fees from its affiliates.
See "Certain Regulatory Matters" for a discussion of regulatory
restrictions on the ability of the affiliate banks to pay
dividends to BANC ONE.
Recent Developments.
In recent years, BANC ONE has pursued an active acquisition
program. The following is a list of announced significant
acquisitions that have not been consummated as of the date of this
Prospectus and Proxy Statement:
Liberty National Bancorp, Inc. (Louisville, Kentucky).
BANC ONE has also announced four other acquisitions which are not
material in the aggregate.
BANC ONE continues to explore opportunities to acquire banks and
non-bank companies permitted by the Bank Holding Company Act of
1956. Discussions are continually being carried on relating to
the acquisition of bank-related companies and other banks. It is
not presently known whether, or on what terms, such discussions
will result in further acquisitions. BANC ONE's acquisition
strategy is flexible in that it does not require BANC ONE to
effect specific acquisitions so as to enter certain markets or to
attain specified growth levels. Rather than being market driven
or size motivated, BANC ONE's acquisition strategy reflects BANC
ONE's willingness to consider potential acquisitions wherever and
whenever such opportunities arise based on the then-existing
market conditions and other circumstances. Banks to be acquired
must be of sufficient size to support and justify having
management of a caliber capable of making lending and other
management decisions at the local level under BANC ONE's operating
philosophy. BANC ONE also is willing from time to time to acquire
a smaller bank when it can be acquired through a reorganization
into an existing affiliate. BANC ONE's interest in the
acquisition of non-bank companies has been limited to bank-related
services with which BANC ONE already has familiarity. BANC ONE's
acquisitions may be made by the exchange of stock, through cash
purchases, and with other consideration.
Other than as described above, BANC ONE does not currently have
any definite understandings or agreements for any acquisitions
material to BANC ONE. However, BANC ONE anticipates that it will
continue to expand by acquisition in the future.<PAGE>
Certain Regulatory Matters
General
BANC ONE is subject to the supervision of, and to regular
inspection by, the Federal Reserve. BANC ONE's principal banking
subsidiaries are organized as national banking associations, which
are subject to regulation by the Comptroller of the Currency (the
"Comptroller"). In addition, various state authorities regulate
BANC ONE's state banking subsidiaries. Furthermore, the various
banking subsidiaries are subject to regulation by the Federal
Deposit Insurance Corporation (the "FDIC") and other federal bank
regulatory bodies. In addition to banking laws, regulations and
regulatory agencies, BANC ONE and its subsidiaries and affiliates
are subject to various other laws, regulations and regulatory
agencies, all of which directly or indirectly affect BANC ONE's
operations, management and ability to make distributions. The
following discussion summarizes certain aspects of those laws and
regulations that affect BANC ONE.
Proposals to change the laws and regulations governing the banking
industry are frequently raised in Congress, in the state
legislatures and before the various bank regulatory agencies. The
likelihood and timing of any changes and the impact such changes
might have on BANC ONE and its subsidiaries are difficult to
determine.
According to Federal Reserve policy, bank holding companies are
expected to act as a source of financial strength to each
subsidiary bank and to commit resources to support each such
subsidiary. This support may be required at times when a bank
holding company may not be able to provide such support.
Furthermore, in the event of a loss suffered or anticipated by the
FDIC -- either as a result of default of a banking or thrift
subsidiary of BANC ONE or related to FDIC assistance provided to
a subsidiary in danger of default -- the other banking
subsidiaries of BANC ONE may be assessed for the FDIC's loss,
subject to certain exceptions.
BANC ONE's banks are affected by various state and federal laws
and by the fiscal and monetary policies of the federal government
and its agencies, including the Federal Reserve. An important
purpose of these policies is to curb inflation and control
recessions through control of the supply of money and credit. The
Federal Reserve uses its powers to regulate reserve requirements
of its member banks, the discount rate on its member bank
borrowings, interest rates on time and savings deposits of its
member banks, and to conduct open market operations in United
States government securities so as to exercise control over the
supply of money and credit. These policies have a direct effect
on the amount of bank loans and deposits and on the interest rates
charged on loans and paid on deposits, with the result that
federal policies have a material effect on bank earnings.
Policies which are directed toward increasing the supply of money
and credit and reducing interest rates may have an adverse effect
on bank earnings. Future policies of the Federal Reserve and
other authorities cannot be predicted, nor can their effect on
future bank earnings be predicted. Similarly, future changes in
state and federal laws and wage, price and other economic
restraints of the federal government cannot be predicted nor can
their effect on future bank earnings be predicted.
Capital Requirements
The Federal Reserve, the FDIC and the Comptroller have issued
substantially similar minimum risk-based and leverage capital
guidelines for United States banking organizations. In addition,
those regulatory agencies may from time to time require that a
banking organization maintain capital above the minimum levels,
whether because of its financial condition or actual or
anticipated growth.
The Federal Reserve risk-based guidelines applicable to BANC ONE
define a two-tier capital framework. Tier 1 capital consists of
common and qualifying preferred shareholders' equity, minority
interests less goodwill and certain other intangible assets, and
one-half of investments in unconsolidated subsidiaries.
Tier 2 capital consists of mandatory convertible debt,
subordinated and other qualifying term debt, preferred stock not
qualifying as Tier 1 capital and the allowance for credit losses,
subject to certain limitations less one-half of investments in
unconsolidated subsidiaries. The sum of Tier 1 and Tier 2 capital
represents qualifying total capital, at least 50% of which must
consist of Tier 1 capital. Risk-based capital ratios are
calculated by dividing Tier 1 and total capital by the sum of four
categories of risk-weighted assets, such risk weights based
primarily on relative credit risk. The regulatory minimum
qualifying total risk-based capital ratio is 8%, of which at least
4% must consist of Tier 1 capital. BANC ONE's Tier 1 and total
risk-based capital ratios under these guidelines at September 30,
1993 were 10.42% and 14.22%, respectively.
The leverage ratio is determined by dividing Tier 1 capital by
adjusted total assets. Although the stated minimum ratio is 3%,
most banking organizations are required to maintain ratios of at
least 100 to 200 basis points above 3%. BANC ONE's estimated
leverage ratio at September 30, 1993 was 8.61%. Although BANC ONE
has not been informed of any specific leverage ratio requirement
applicable to it, management believes that BANC ONE meets its
leverage ratio requirement.
Dividend Restrictions
Various Federal and state statutory provisions limit the amount of
dividends BANC ONE's affiliate banks can pay to BANC ONE without
regulatory approval. The approval of the appropriate bank
regulator is required for any dividend by a national bank or state
member bank if the total of all dividends declared by the bank in
any calendar year would exceed the total of its net profits, as
defined by regulatory agencies, for such year combined with its
retained net profits for the preceding two years. In addition, a
national bank or a state member bank may not pay a dividend in an
amount greater than its net profits then on hand. Under these
provisions and various state law restrictions, BANC ONE's
Affiliate Banks could have declared, as of December 31, 1992,
without obtaining prior regulatory approval, aggregate dividends
of approximately $814 million. In addition, federal bank
regulatory authorities have authority to prohibit the Affiliate
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
BANC ONE's Affiliate Banks to pay dividends in the future is
presently, and could be further, influenced by bank regulatory
policies and capital guidelines.
FDICIA
The Federal Deposit Insurance Corporation Improvement Act of 1991
(the "FDICIA"), which became law on December 19, 1991, revises
several banking statutes, including the Federal Deposit Insurance
Act, affecting bank regulation, deposit insurance and provisions
for funding of the Bank Insurance Fund (the "BIF") administered by
the FDIC. Under FDICIA the bank regulators' authority to
intervene is linked to the deterioration of a bank's capital
level. In addition, FDICIA places limits on real estate lending
and brokered deposit activities, expands audit and reporting
requirements, and imposes limitations and requirements on various
banking functions. BANC ONE believes that the deposit insurance
and brokered deposit limitations under FDICIA will not have any
material impact on the liquidity or funding of BANC ONE or its
affiliate banks.
Deposit Insurance Assessments
The deposits of each of BANC ONE's banks are insured up to
regulatory limits by the FDIC. Accordingly, BANC ONE's banks are
subject to deposit insurance assessments to maintain the Bank
Insurance Fund (the "BIF") of the FDIC. Pursuant to FDICIA, the
FDIC must establish a risk-based insurance assessment system by
January 1, 1994.
On September 14, 1992, the FDIC adopted regulations to implement
a transitional risk-related insurance assessment system, starting
January 1, 1993. Under this system, the FDIC will place each
insured bank in one of nine risk categories based on its level of
capital and other relevant information (such as supervisory
evaluations). Each insured bank's insurance assessment rate will
then be determined by the risk category in which it has been
classified by the FDIC. Under this transitional system, the
average insurance assessment rate will be .254% per $100 of
deposits. However, there will be an eight basis point spread
between the highest and lowest assessment rates, so that banks
classified as strongest by the FDIC will be subject to a rate of
$0.23 per $100 of deposits and banks classified as weakest by the
FDIC will be subject to a rate of $0.31 per $100 of deposits. The
FDIC has indicated that it expects that the majority of banks will
be subject to an assessment rate of $0.23 per $100 of deposits
(the same rate as under the current flat-rate assessment system).
However, the FDIC has also indicated that it expects to recommend
that the permanent risk-related premium system, to be implemented
in 1994, incorporate a wider differential between the highest and
lowest assessment rates.<PAGE>
Depositor Preference Statute
Federal legislation has been enacted providing that deposits and
certain claims for administrative expenses and employee
compensation against an insured depositary institution would be
afforded a priority over other general unsecured claims against
such an institution, including federal funds and letters of
credit, in the "liquidation or other resolution" of such an
institution by any receiver.
Brokered Deposits
The FDIC has also adopted final regulations governing the receipt
of brokered deposits. Under these regulations, an FDIC-insured
bank or savings association cannot accept brokered deposits
unless: (a) it is well capitalized or (b) it is adequately
capitalized and receives a waiver from the FDIC.
A bank or savings association that cannot receive brokered
deposits also cannot offer "pass-through" insurance on certain
employee benefit accounts, unless it provides certain to affected
depositors. In addition, a bank or savings association that is
not well capitalized may not pay an interest rate on any deposits
in excess 75 basis points over certain prevailing market rates. At
September 30, 1993, BANC ONE's banking subsidiaries had brokered
deposits of $ million.
Market Prices of and Dividends Paid on BANC ONE Common Stock
BANC ONE Common Stock is, and the shares offered hereby will be,
listed on the New York Stock Exchange. The following table sets
forth, for the periods indicated, the high and low reported
closing sale prices per share of BANC ONE Common Stock on the New
York Stock Exchange Composite Tape and cash dividends per share of
BANC ONE Common Stock. The dividend and stock price information
has been adjusted to reflect the five shares for four shares BANC
ONE Common Stock split payable on August 31, 1993 and the 10%
dividend on BANC ONE Common Stock effective February 14, 1992.
Price Range of Common Stock
High Low Dividends
1991
First Quarter . . $26.54 $18.10 $.21
Second Quarter. . 29.46 25.09 .21
Third Quarter . . 35.27 28.00 .21
Fourth Quarter. . 38.36 30.54 .21
1992
First Quarter . . $40.00 $33.82 $.23
Second Quarter. . 38.00 33.80 .23
Third Quarter . . 37.70 33.70 .26
Fourth Quarter. . 42.80 35.00 .26
1993
First Quarter . . $46.50 $40.00 $.28
Second Quarter. . 49.20 40.40 .28
Third Quarter . . 46.41 38.00 .31
Fourth Quarter. .
1994
First Quarter . .
(through [ ], 1994
BANC ONE intends to continue its present policy of paying
quarterly cash dividends to its shareholders so that dividends as
a percentage of income will average between 35 and 40 percent of
net income. The timing and amount of future dividends will depend
upon earnings, cash requirements, the financial condition of BANC
ONE and its subsidiaries, applicable government regulations and
other factors deemed relevant by the Board of Directors. Certain
debt instruments to which BANC ONE is a party limit its ability to
pay dividends on BANC ONE Common Stock. Under the most
restrictive of these limitations, BANC ONE would have been
permitted to pay cash dividends on BANC ONE Common Stock in excess
of its $814 million of retained earnings as of December 31, 1992.
As described under "Certain Regulatory Matters," various state and
federal laws limit the ability of affiliate banks to pay dividends
to BANC ONE.
<PAGE>
Incorporation of Certain Information About BANC ONE By Reference
BANC ONE's Annual Report on Form 10-K for the fiscal year ended
December 31, 1992, BANC ONE's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1993, June 30, 1993 and September 30,
1993 and BANC ONE's Current Reports on Form 8-K filed February 4,
1993 (2), February 16, 1993, August 20, 1993, November 9, 1993,
November 16, 1993, and November 24, 1993, in each case filed with
the Commission pursuant to Section 13 of the Exchange Act and the
description of BANC ONE Common Stock which is contained in its
registration statement filed under Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of
updating such description, are incorporated into this Prospectus
and Proxy Statement by reference.
C. INFORMATION ABOUT FIRSTIER FINANCIAL, INC.
General
FIRSTIER is a multi-bank holding company incorporated under the
laws of the state of Nebraska in 1984, which as of September 30,
1993, owned all of the outstanding stock of four commercial
national banks which operate 33 offices in Nebraska and one
federal savings bank which operated 10 offices in Nebraska. On
October 29, 1993, the federal savings bank merged with and into
one of FIRSTIER's commercial national banks. As of September 30,
1993, FIRSTIER, its affiliate banks and its non-bank subsidiaries
had total assets of approximately $3.0 billion and total deposits
of approximately $2.3 billion.
The primary subsidiaries of FIRSTIER are FirsTier Bank, N.A.,
Omaha with total assets of $1.4 billion and total deposits of
$1.1 billion as of September 30, 1993; FirsTier Bank, N.A.,
Lincoln with total assets of $1.1 billion and total deposits of
$787 million as of September 30, 1993; FirsTier Bank, N.A.,
Scottsbluff with assets of $261 million and deposits of
$232 million as of September 30, 1993; FirsTier Bank, N.A.,
Norfolk with total assets of $197 million and total deposits of
$173 million as of September 30, 1993; and FirsTier Savings Bank,
FSB with total assets of $139 million and total deposits of
$104 million as of September 30, 1993.
Recent Developments
On October 29, 1993, FirsTier Savings Bank, FSB merged with and
into FirsTier Bank, N.A., Omaha.
<PAGE>
Market Prices of and Dividends Paid on FIRSTIER Common Stock
The following table sets forth, for the periods indicated, the
high and low reported sale prices per share of FIRSTIER Common
Stock reported on the NASDAQ National Market System and cash
dividends per share of FIRSTIER Common Stock.
Price Range of Common Stock
High Low Dividends
1991
First Quarter . . $18.88 $14.25 $.150
Second Quarter. . 21.19 18.00 .150
Third Quarter . . 25.88 20.69 .165
Fourth Quarter. . 27.75 25.25 .165
1992
First Quarter . . $31.88 $27.75 $.165
Second Quarter. . 33.50 30.38 .180
Third Quarter . . 39.00 32.75 .180
Fourth Quarter. . 45.50 37.75 .180
1993
First Quarter . . $48.25 $41.50 $.20
Second Quarter. . 56.00 42.75 .20
Third Quarter . . 56.25 46.50 .20
Fourth Quarter. .
1994
First Quarter. . .
(through [ ], 1994
Beginning with the second calendar quarter of 1993 and for each
succeeding calendar quarter prior to the consummation of the
Merger, the Merger Agreement provides that FIRSTIER may declare
and pay cash dividends on shares of FIRSTIER Common Stock in an
amount, per calendar quarter, which will be equal to either (i)
$.20 per share per quarter for each of the second and third
quarters of 1993 and $.23 per share per quarter for the fourth
quarter of 1993 and each subsequent quarter, or (ii) that amount
per share per quarter calculated by multiplying the amount paid by
BANC ONE on each share of BANC ONE Common Stock for such quarter
times the Exchange Rate. However, FIRSTIER will not declare or
pay any dividends or make any distributions in any amount on the
FIRSTIER Common Stock in the quarter in which the Effective Time
occurs and in which the shareholders of FIRSTIER Common Stock are
entitled to receive regular quarterly dividends on the shares of
BANC ONE Common Stock into which the shares of FIRSTIER Common
Stock have been converted.
Incorporation of Certain Information About FIRSTIER by Reference
FIRSTIER's Annual Report on Form 10-K for the fiscal year ended
December 31, 1992, FIRSTIER's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1993, June 30, 1993 and September 30,
1993 and FIRSTIER's Current Reports on Form 8-K, including the
Form 8-K filed on April 19, 1993, the Form 8-K filed on September
8, 1993 and the Form 8-K filed on September 17, 1993, in each case
filed with the Commission pursuant to Section 13 of the Exchange
Act and the description of FIRSTIER Common Stock which is
contained in its registration statement filed under Section 12 of
the Exchange Act, including any amendment or report filed for the
purpose of updating such description, are incorporated into this
Prospectus and Proxy Statement by reference.
D. VOTING AND MANAGEMENT INFORMATION
BANC ONE will pay the costs of preparing and printing this
Prospectus and Proxy Statement and FIRSTIER will bear the cost of
soliciting proxies for the Special Meeting. Solicitation of
proxies will be made in person, by mail, or by telephone or
telegraph by present and former directors, officers and employees
of FIRSTIER for which no additional compensation will be paid. In
addition, FIRSTIER has retained Morrow & Co., Inc. ("Morrow") to
assist FIRSTIER in soliciting proxies in connection with the
Merger. FIRSTIER has agreed to pay Morrow $7,500 for such
solicitation services, as well as to reimburse Morrow for its
disbursements incurred in connection with distributing proxy
materials. FIRSTIER will bear the cost of solicitation of proxies
from its shareholders. Copies of the form of proxy and Notice and
this Prospectus and Proxy Statement will be mailed to shareholders
on or about , 1994.
Voting
The proxy accompanying this Prospectus and Proxy Statement is
solicited by the Board of Directors of FIRSTIER and, if properly
executed and returned, will be voted in accordance with the
instructions given therein. IF NO INSTRUCTIONS ARE GIVEN, THE
PROXY WILL BE VOTED IN FAVOR OF THE PROPOSAL TO APPROVE THE MERGER
AGREEMENT. Any proxy may be revoked at any time before it is
voted by furnishing FIRSTIER with either written notice of
revocation or a subsequently dated proxy or appearing at the
Special Meeting and electing to vote in person.
The FIRSTIER Board has fixed the close of business on ,
1994, as the record date for the determination of shareholders
entitled to notice of and to vote at the Special Meeting. As of
the record date, shares of FIRSTIER Common Stock
were outstanding, each of which entitled its holder to one vote at
the Special Meeting. The affirmative vote of the holders of two-
thirds of the outstanding shares of FIRSTIER Common Stock entitled
to vote thereon is required for approval of the Merger Agreement.
The FIRSTIER Board has unanimously approved the Merger Agreement
and each director has indicated an intention to vote all of his
shares in favor of the Merger Agreement.
Rights of Dissenting Shareholders
Under Nebraska Law, the right of a dissenting shareholder to
receive payment of the fair value of his shares pursuant to
Section 21-2079 of the Nebraska Business Corporation Act does not
apply to shareholders of a bank holding company.
Management and Principal Shareholders of BANC ONE
Information concerning the directors and executive officers of
BANC ONE, compensation of directors and executive officers of BANC
ONE and any related transactions in which they have an interest,
together with information related to principal shareholders of
BANC ONE, is set forth in BANC ONE's Proxy Statement, dated
March 11, 1993, incorporated herein by reference to BANC ONE's
Annual Report on Form 10-K for the year ended December 31, 1992.
See "INCORPORATION BY REFERENCE."
Management and Principal Shareholders of FIRSTIER
Information concerning the directors and executive officers of
FIRSTIER, together with information related to principal
shareholders of FIRSTIER, is set forth in FIRSTIER's Proxy
Statement, dated April 9, 1993, incorporated herein by reference
to FIRSTIER's Annual Report on Form 10-K for the year ended
December 31, 1992. See "INCORPORATION BY REFERENCE."
DRAFT EXHIBIT A
___________________, 1994
Board of Directors
FirsTier Financial, Inc.
1700 Farnam Street
Omaha, NE 68102
Gentlemen:
We understand that FirsTier Financial, Inc. (the
"Company"), Banc One Corporation (the "Buyer"), and Banc One Beta
Corporation (the "Acquisition Sub") propose to enter into an
Agreement and Plan of Merger dated April 19, 1993 (the "Merger
Agreement"), which provides, among other things, for (i) the
conversion of all of the outstanding shares of common stock, par
value $5 per share ("Company Common Stock"), of the Company into
shares of common stock, no par value ("Buyer Common Stock"), of
the Buyer, and (ii) the merger (the "Merger") of the Acquisition
Sub with the Company. Pursuant to the Merger, the Company will
become a wholly owned subsidiary of the Buyer and each outstanding
share of the Company Common Stock will be converted into 1.00
share (the "Exchange Ratio") of Buyer Common Stock. The terms and
conditions of the Merger are more fully set forth in the Merger
Agreement and certain related agreements.
You have asked for our opinion as to whether the Exchange
Ratio is fair from a financial point of view to the holders of
shares of Company Common Stock (other than the Buyer and its
affiliates).
For purposes of the opinion set forth herein, we have:
(i) analyzed certain publicly available financial
statements and other information of the Company;
(ii) analyzed certain internal financial statements and
other financial and operating data concerning the
Company prepared by the management of the Company;
(iii) analyzed certain financial projections concerning
the Company and Buyer prepared by the management of
the Company and Buyer, respectively;
(iv) discussed the past and current operations and
financial condition and the prospects, including
asset quality trends, of the Company with senior
executives of the Company;
(v) reviewed the reported prices and trading activity
for Company Common Stock;
(vi) analyzed certain publicly available financial
statements and other information of the Buyer;
(vii) discussed the past and current operations and
financial condition and the prospects, including
asset quality trends, of the Buyer with senior
executives of the Buyer;
(viii) reviewed the reported prices and trading activity
for Buyer Common Stock;
(ix) compared the financial performance of the Company
and the prices and trading activity of Company
Common Stock with the financial performance of
certain other comparable publicly-traded companies
and their securities;
(x) compared the financial performance of the Buyer and
the prices and trading activity of Buyer Common
Stock with the financial performance of certain
other comparable publicly-traded companies and their
securities;
(xi) reviewed the financial terms, to the extent publicly
available, of certain comparable acquisition
transactions;
(xii) discussed the strategic objectives of the Merger
with the Company and Buyer;
(xiii) discussed with the independent auditors of the
Company their review of the financial and accounting
affairs of the Company and with the independent
auditors of the Buyer their review of the financial
and accounting affairs of the Buyer;
(xiv) participated in discussions and negotiations among
representatives of the Company and Buyer and their
financial and legal advisors; and
(xv) reviewed the Merger Agreement and certain related
documents.
We have assumed and relied upon without independent
verification the accuracy and completeness of the information
reviewed by us for the purposes of this opinion. With respect to
the financial projections, we have assumed that they have been
reasonably prepared on bases reflecting the best currently
available estimates and judgments of the future financial
performance of the Company. We have not made any independent
valuation or appraisal of the assets or liabilities of the Company
or Buyer, nor have we been furnished with any such appraisals. We
have not examined any individual loan credit files of the Company
or the Buyer. We have assumed without independent verification
that the aggregate allowances for loan losses of the Company and
the Buyer are adequate to cover such losses. Finally, as directed
by the Board of Directors of the Company, we have not solicited
interest from other potential buyers of the Company. Our opinion
is necessarily based on economic, market and other conditions as
in effect on, and the information made available to us as of, the
date hereof.
We have acted as financial advisor to the Company in
connection with this transaction and will receive a fee for our
services. In the past, Morgan Stanley & Co. Incorporated and its
affiliates have provided financial advisory and financial services
for the Company, as well as the Buyer, and have received customary
fees for the rendering of these services.
It is understood that this letter is for the information
of the Board of Directors of the company only and may not be used
for any other purpose without our prior written consent.
Based upon and subject to the foregoing, we are of the
opinion on the date hereof that the Exchange Ratio is fair from a
financial point of view to the holders of shares of Company Common
Stock (other than the Buyer and its affiliates).
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By: DRAFT_______
C. Douglas Mercer
Principal
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Officers and Directors.
Section 1701.13(E) of the Ohio General Corporation Law sets forth
provisions which define the extent to which a corporation may
indemnify directors, officers, and employees. Those provisions
have been adopted by the Registrant in Article V of Registrant's
Code of Regulations. Article V provides for the indemnification
or the purchase of insurance for the benefit of the directors,
officers, employees and agents of the Registrant in the event such
persons are subject to legal action as a result of actions in
their capacities as directors, officers, employees or agents of
the Registrant. Registrant has entered into indemnification
agreements with its directors and executive officers that provide
for indemnification unless the indemnitee's conduct is finally
adjudged by a court to be knowingly fraudulent, deliberately
dishonest or willful misconduct. Registrant indemnifies other
officers, employees or agents, provided such persons acted in good
faith and in a manner which they reasonably believed to be in or
not opposed to the best interest of the Registrant or, with
respect to criminal actions, had no reason to believe was
unlawful.
Item 21. Exhibits and Financial Statement Schedules.
The following exhibits are filed herewith except those indicated
which have been filed previously as shown below and which are
incorporated herein by reference.
2.1 Agreement and Plan of Merger dated April 19, 1993, by and
among FirsTier Financial, Inc., Banc One Beta Corporation
and BANC ONE CORPORATION.
2.2 First Agreement Amending Agreement and Plan of Merger
dated January 10, 1994, by and among FirsTier Financial,
Inc., Banc One Beta Corporation and BANC ONE CORPORATION.
2.3 Option Agreement dated April 20, 1993, by and between
FirsTier Financial, Inc. and BANC ONE CORPORATION.
2.4 Form of Proxy to be used by FirsTier Financial, Inc.
3.1 Amended Articles of Incorporation of the Registrant
(incorporated by reference from Exhibit 3-1 of the Annual
Report of the Registrant on Form 10-K for the year ended
December 31, 1991.)
3.2 Code of Regulations of the Registrant (incorporated by
reference from Exhibit 3-2 of the Annual Report of the
Registrant on Form 10-K for the year ended December 31,
1991).
4.1 Form of Common Stock Certificate of the Registrant
(incorporated by reference from Exhibit 4.1 to the Annual
Report of the Registrant on Form 10-K for the year ended
December 31, 1989).
5* Opinion of Roman J. Gerber, General Counsel for BANC ONE
CORPORATION, regarding the legality of securities being
offered, including consent.
8 Opinion of Sullivan & Cromwell regarding the Federal
income tax consequences of the Merger, including consent.
23.1 Consent of Coopers & Lybrand.
23.2 Consent of Arthur Andersen.
23.3 Consent of KPMG Peat Marwick
23.4* Consent of Roman J. Gerber, General Counsel for BANC ONE
Corporation (included in Exhibit 5 hereto).
23.5* Consent of Sullivan & Cromwell (included in Exhibit 8
hereto).
24 Power of attorney is included elsewhere in Part II of this
Registration Statement.
___________
*To be filed by amendment
Item 22. Undertakings.
(a) The undersigned Registrant hereby undertakes 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.
(b) The undersigned Registrant hereby undertakes as
follows: that prior to any public reoffering of the
securities registered hereunder through use of a
prospectus which is a part of this Registration
Statement, by any person or party who is deemed to
be an underwriter within the meaning of Rule 145(c),
the issuer undertakes that such reoffering
prospectus will contain the information called for
by the applicable registration form with respect to
reofferings by persons who may be deemed
underwriters, in addition to the information called
for by the other Items of the applicable form.
(c) The Registrant hereby undertakes that every
prospectus (i) that is filed pursuant to
paragraph (b) above, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and
is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an
amendment to the Registration Statement and will not
be used until such amendment has become effective,
and that for the purpose of determining liabilities
under the Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(d) 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 foregoing provisions, 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 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.
(e) The undersigned Registrant hereby undertakes to
respond to requests for information that is
incorporated by reference into the Prospectus
pursuant to Items 4, 10(b), 11, or 13 of this Form,
within one business day of receipt of such request,
and to send the incorporated documents by first
class mail or other equally prompt means. This
includes information contained in documents filed
subsequent to the effective date of the Registration
Statement through the date of responding to the
request.
(f) The undersigned Registrant hereby undertakes to
supply by means of a post-effective amendment all
information concerning a transaction, and the
company being acquired involved therein, that was
not the subject of and included in the Registration
Statement when it became effective.
(g) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(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;
(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 paragraphs (g)(1)(i) and
(g)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the
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.
(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.
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 January 18, 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.
<PAGE>
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
JOHN B. MCCOY Chairman of the Board January 18, 1994
John B. McCoy (Principal Executive
Officer & Director)
DONALD L. MCWHORTER President and Director January 18, 1994
Donald L. McWhorter
FREDERICK L. CULLEN Senior Vice President January 18, 1994
Frederick L. Cullen (Principal Financial
Officer)
WILLIAM C. LEITER Controller (Principal January 18, 1994
William C. Leiter Accounting Officer)
CHARLES E. EXLEY Director January 18, 1994
Charles E. Exley
E. GORDON GEE Director January 18, 1994
E. Gordon Gee
JOHN R. HALL Director January 18, 1994
John R. Hall
LABAN P. JACKSON, JR. Director January 18, 1994
Laban P. Jackson, Jr.
JOHN G. MCCOY Director January 18, 1994
John G. McCoy
RENE C. MCPHERSON Director January 18, 1994
Rene C. McPherson
THEKLA R. SHACKELFORD Director January 18, 1994
Thekla R. Shackelford
FREDERICK P. STRATTON, JR. Director January 18, 1994
Frederick P. Stratton, Jr.
ROMEO J. VENTRES Director January 18, 1994
Romeo J. Ventres
ROBERT D. WALTER Director January 18, 1994
Robert D. Walter
__________________ Director _______ __, 1994
Leslie H. Wexner
AGREEMENT and PLAN OF MERGER
between
FIRSTIER FINANCIAL, INC.
and
BANC ONE BETA CORPORATION
and joined in by
BANC ONE CORPORATION
TABLE OF CONTENTS TO MERGER AGREEMENT
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 3. Business . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 4. Effective Time of Merger; Articles of Incorporation . . . . 3
Section 5. Effect of Merger . . . . . . . . . . . . . . . . . . . . . . 4
Section 6. Liabilities upon Merger and Service of Process . . . . . . . 4
Section 7. Conversion of Shares . . . . . . . . . . . . . . . . . . . . 5
Section 8. Board of Directors, Employees and Name Change . . . . . . . 9
Section 9. Employee Benefits . . . . . . . . . . . . . . . . . . . . . 9
Section 10. Undertakings of the Parties . . . . . . . . . . . . . . . . 9
Section 11. Dissenting Shareholders . . . . . . . . . . . . . . . . . . 17
Section 12. Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 13. Representations and Warranties of BANC ONE . . . . . . . . . 18
Section 14. Representations and Warranties of BANC ONE BETA . . . . . . 28
Section 15. Representations and Warranties of FIRSTIER . . . . . . . . . 30
Section 16. Action by FIRSTIER Pending Effecting Time . . . . . . . . . 42
Section 17. Action by BANC ONE Pending Effective Time . . . . . . . . . 46
Section 18. Conditions to Obligations of BANC ONE and
BANC ONE BETA . . . . . . . . . . . . . . . . . . . . . . 47
Section 19. Conditions to Obligations of FIRSTIER . . . . . . . . . . . 51
Section 20. Conditions to Obligations of All Parties . . . . . . . . . . 53
Section 21. Option to Purchase . . . . . . . . . . . . . . . . . . . . . 54
Section 22. Indemnification . . . . . . . . . . . . . . . . . . . . . . 55
Section 23. Non-Survival of Representations and Warranties . . . . . . . 58
Section 24. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 58
Section 25. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 26. Satisfaction of Conditions; Termination . . . . . . . . . . 58
Section 27. Waivers; Amendments . . . . . . . . . . . . . . . . . . . . 62
Section 28. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 63
Section 29. Captions; Counterparts . . . . . . . . . . . . . . . . . . . 63
Section 30. Materiality . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 31. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
EXHIBIT A - FIRSTIER Subsidiaries List
EXHIBIT B - Form of Plan of Merger
EXHIBIT C - Form of Undertaking by Affiliates
EXHIBIT D - Opinion of Counsel for FIRSTIER
EXHIBIT E - Opinion of Counsel for BANC ONE and BANC ONE BETA
EXHIBIT F - Option Agreement
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of April 19, 1993 (hereinafter called the
"Merger Agreement"), between FirsTier Financial, Inc. (hereinafter called
"FIRSTIER") and Banc One Beta Corporation (hereinafter called "BANC ONE BETA")
and joined in by BANC ONE CORPORATION (hereinafter called "BANC ONE").
WITNESSETH:
FIRSTIER is a corporation duly organized under the laws of the State of
Nebraska. Its principal office is located at 1700 Farnam Street, Omaha,
Douglas County, Nebraska. As of December 31, 1992, FIRSTIER had authorized
capital stock consisting of 20,000,000 shares of common stock with par value of
$5.00 per share ("FIRSTIER Common"), of which a total of 11,449,000 shares were
issued and outstanding, not including 137,056 shares of treasury stock owned by
FIRSTIER, and 2,000,000 shares of preferred stock with par value of $30.00 per
share, of which no shares were issued or outstanding. Except as set forth in
Exhibit A hereto, FIRSTIER, or a subsidiary of FIRSTIER, owns, beneficially and
of record, all of the issued and outstanding capital stock of the banks and the
federal savings bank listed in Exhibit A hereto (the "Banks") and of the
corporations listed in Exhibit A hereto (the "Companies"). The Banks and the
Companies are hereinafter referred to collectively as "Subsidiaries" and each,
sometimes, as a "Subsidiary."
BANC ONE BETA is a corporation duly organized under the laws of the State of
Ohio. Its principal office is located at 100 East Broad Street, Columbus,
Franklin County, Ohio. As of the date of this Merger Agreement, BANC ONE BETA
had capital stock of $500 divided into 500 shares of common stock with par
value of $1.00 per share ("BANC ONE BETA Common"), all of which were issued and
outstanding.
BANC ONE is a corporation duly organized under the laws of the State of Ohio.
Its principal office is located at 100 East Broad Street, Columbus, Franklin
County, Ohio. As of December 31, 1992 BANC ONE had capital stock of
$1,420,108,000, divided into 600,000,000 shares of common stock, without par
value ("BANC ONE Common"), 232,081,689 of which shares of BANC ONE Common were
issued and outstanding and none of which were shares of treasury stock owned by
BANC ONE, and 35,000,000 shares of preferred stock without par value, of which
373,076 were issued and outstanding as Class B Convertible, no par value
shares, and 5,000,000 shares were issued and outstanding as Series C $3.50
Cumulative Convertible Preferred Stock. As of December 31, 1992, BANC ONE had
surplus of $2,695,987,000, undivided profits, including capital reserves, of
$1,097,425,000, and total assets of $61,417,364,000.
The respective Boards of Directors of FIRSTIER, BANC ONE BETA, and BANC ONE
have each approved this Merger Agreement and the consummation of the
transactions contemplated hereby and have approved the execution and delivery
of this Merger Agreement. This Merger Agreement provides for the merger of
BANC ONE BETA with and into FIRSTIER upon the terms and conditions of this
Merger Agreement (the "Merger"). FIRSTIER will be the surviving corporation of
the Merger. From and after the time the Merger shall become effective as set
forth in Section 4 of this Merger Agreement, and as and when required by this
Merger Agreement, BANC ONE will issue shares of BANC ONE Common in exchange for
all of the issued and outstanding shares of FIRSTIER Common. It is understood
by each of the parties hereto that BANC ONE seeks, as a result of the Merger,
to acquire FIRSTIER, the Banks and the Companies and all of their respective
operating assets and liabilities. Subject to the terms and conditions of this
Merger Agreement, all parties will exert their best efforts to obtain such
regulatory approvals and to effect such other actions as are necessary or
appropriate to consummate the Merger.
In consideration of the premises, FIRSTIER, BANC ONE and BANC ONE BETA hereby
make this Merger Agreement and prescribe the terms and conditions of the Merger
and the mode of carrying the Merger into effect as follows:
1. Merger. Subject to the terms and conditions hereinafter set forth, BANC
ONE BETA shall be merged with and into FIRSTIER pursuant to and in
accordance with applicable provisions of the Nebraska Business Corporation
Act (the "Nebraska BCA") and the General Corporation Law of the State of
Ohio (the "Ohio GCL")
2. Name. The name of the surviving corporation (hereinafter called the
"Surviving Corporation" whenever reference is made to it as of the
Effective Time or thereafter) shall be "BANC ONE NEBRASKA CORPORATION."
3. Business. The business of the Surviving Corporation shall be that of a
bank holding company. The Surviving Corporation shall exist by virtue of,
and be governed by the laws of, the State of Nebraska and shall have its
principal office at 1700 Farnam Street, Omaha, Nebraska.
4. Effective Time of Merger; Articles of Incorporation. The Merger shall
become effective in accordance with the provisions of Section 1701.81
of the Ohio GCL and Section 21-2075 of the Nebraska BCA, upon the later to
occur of (a) completion of the filing of a certificate of merger with the
Secretary of State of the State of Ohio, and (b) completion of the filing
of articles of merger with the Secretary of State of the State of
Nebraska (the "Effective Time").
Attached to this Merger Agreement as Exhibit B is a Plan of Merger (the
"Plan of Merger") containing certain of the terms of this Merger Agreement,
which shall be set forth in substantially the form of such Exhibit B (as
the "plan of merger" with respect to the Merger referred to in Section
21-2075 and the other applicable provisions of the Nebraska BCA) in the
Articles of Merger filed by FIRSTIER and BANC ONE BETA with the Secretary
of State of the State of Nebraska in order to make the Merger effective.
The Articles of Incorporation of FIRSTIER in effect as of the Effective
Time shall be the Articles of Incorporation of the Surviving Corporation,
and the By-Laws of FIRSTIER in effect as of the Effective Time shall be the
By-Laws of the Surviving Corporation, except that Article I and Article V
of such Articles of Incorporation shall be amended, effective as of the
Effective Time, to read in their entirety as follows:
ARTICLE I
Name
The name of the Corporation is BANC ONE NEBRASKA CORPORATION.
ARTICLE V
Authorized Shares
The total number of shares which the Corporation shall have authority
to issue is 500 shares of Common Stock with par value of $1.00 per
share. Each issued and outstanding share of Common Stock will entitle
the holder thereof to one vote, except as may otherwise be provided by
statute.
5. Effect of Merger. At the Effective Time, the separate corporate existence
of FIRSTIER and BANC ONE BETA, respectively, shall, as provided in
applicable provisions of the Ohio GCL and the Nebraska BCA, be merged into
and continued in FIRSTIER as the Surviving Corporation, which shall be
deemed to be the same corporation as FIRSTIER and BANC ONE BETA. All
rights, franchises and interests of FIRSTIER and BANC ONE BETA,
respectively, in and to every type of property, real, personal and mixed,
and choses in action, shall be transferred to and vested in FIRSTIER as the
Surviving Corporation by virtue of the Merger without any deed or other
transfer in the same manner and to the same extent as such rights,
franchises and interests were held or enjoyed by FIRSTIER and BANC ONE
BETA, respectively, at the Effective Time, as provided in applicable
provisions of the Ohio GCL and the Nebraska BCA.
6. Liabilities upon Merger; Service of Process. The Surviving Corporation
shall be responsible for all of the liabilities of every kind and
description of FIRSTIER and BANC ONE BETA existing as of the Effective
Time, except as may be specifically provided otherwise in this Merger
Agreement.
The filing of this Merger Agreement with the Secretary of State of the
State of Ohio, accompanied by such other documents as are required by the
Ohio GCL, shall operate as a consent by the Surviving Corporation that it
may be sued and served with process in the State of Ohio in any suit,
action or proceeding for the enforcement of any obligation or liability of
BANC ONE BETA including any amount payable to any dissenting shareholder;
as an irrevocable consent by the Surviving Corporation to service upon and
by the Ohio Secretary of State as agent of the Surviving Corporation to
accept service of process in any such suit, action or proceeding for the
enforcement of any such obligation or liability; and as an appointment by
the Surviving Corporation of Thomas B. Fischer, whose address is 1700
Farnam Street, Omaha, Nebraska 68102-2183, as agent of the Surviving
Corporation for service of process in any action, suit or proceeding to
enforce any such obligation or liability of BANC ONE BETA, to whom the Ohio
Secretary of State may mail a copy of any such process served upon the Ohio
Secretary of State.
7. Conversion of Shares.
(a) At the Effective Time:
(i) Each share of FIRSTIER Common that is issued and outstanding
immediately prior to the Effective Time, except for shares of
FIRSTIER Common subject to the rights of a dissenting shareholder,
if any, shall thereupon and without further action be converted
into one share of BANC ONE Common subject, however, to (i) the
anti-dilution provisions of Section 7(e) of this Merger Agreement,
(ii) provisions set forth in Section 7(c) with respect to
fractional shares and (iii) the provisions of Section 26(d) (the
"Exchange Rate").
(ii) The 500 shares of Common Stock of BANC ONE BETA issued and
outstanding immediately prior to the Effective Time shall,
thereupon and without further notice, continue to be issued and
outstanding shares of common stock of the Surviving Corporation.
(iii) Any shares of FIRSTIER Common held by FIRSTIER as treasury stock
immediately prior to the Effective Time shall be cancelled and
shall not represent capital stock of the Surviving Corporation
and shall not be exchanged for shares of BANC ONE Common.
(b) FIRSTIER's shareholders of record at the Effective Time, for the
shares of FIRSTIER Common then held by them, respectively, shall be
allocated and be entitled to receive (upon surrender of certificates
formerly representing shares of FIRSTIER Common for cancellation)
certificates for shares of BANC ONE Common as shall be equal to the
number of shares of FIRSTIER Common outstanding immediately prior to
the Effective Time multiplied by the Exchange Rate.
(c) No certificate for fractional shares of BANC ONE Common will be issued
by BANC ONE in connection with the exchange contemplated by the
Merger, but in lieu thereof, any holder of FIRSTIER Common shall, upon
surrender of the certificate or certificates representing such
FIRSTIER Common, be paid cash, without interest, by BANC ONE for such
fractional shares, if any, on the basis of the BANC ONE Average Price
(as hereinafter defined). The BANC ONE Average Price shall mean the
average of the closing prices of BANC ONE Common on the New York Stock
Exchange ("NYSE") during the Valuation Period (as hereinafter defined)
in The Wall Street Journal for NYSE Composite Transactions. The term
"Valuation Period" shall mean the ten consecutive NYSE trading days
ending on the eighth NYSE trading day immediately prior to the
proposed Effective Time, as designated by BANC ONE pursuant to Section
10(c) of this Merger Agreement.
(d) As soon as practicable after the Effective Time, and subject to the
provisions set forth above relating to fractional shares, BANC ONE
will, or will cause BANK ONE, INDIANAPOLIS, N.A., as Exchange Agent
for BANC ONE to, distribute to the former holders of FIRSTIER Common
(or their respective designees) in exchange for and upon surrender for
cancellation by such holders of a certificate or certificates formerly
representing shares of FIRSTIER Common, the certificate(s) for shares
of BANC ONE Common in accordance with the Exchange Rate. Each
certificate formerly representing FIRSTIER Common (other than
certificates representing shares of FIRSTIER Common subject to the
rights of dissenting shareholders) shall be deemed for all purposes to
evidence the ownership of the number of shares of BANC ONE Common into
which such shares have been converted pursuant to the Exchange Rate
except, however, that, until such surrender of a holder's certificate
or certificates formerly representing shares of FIRSTIER Common, the
holder thereof shall not be entitled to receive any dividend or other
payment or distribution payable to holders of BANC ONE Common. Upon
such surrender (or, in lieu of surrender, other provisions reasonably
satisfactory to BANC ONE as are made as set forth in the next
following paragraph), there shall be paid to the person entitled
thereto the aggregate amount of dividends or other payments or
distributions (in each case without interest) which became payable
after the Effective Time, to the extent not previously paid to such
person, on the whole shares of BANC ONE Common represented by the
certificates issued upon such surrender and exchange or in accordance
with such other provisions, as the case may be. For a period of
ninety (90) days following the Effective Time, former shareholders of
FIRSTIER shall be entitled to vote at any meeting of BANC ONE
shareholders the number of whole shares of BANC ONE Common into which
their respective shares of FIRSTIER Common are converted, regardless
of whether such holders have exchanged their certificates representing
such FIRSTIER Common for certificates representing BANC ONE Common in
accordance with this subparagraph (d). In addition, after the
Effective Time the holders of certificates formerly representing
shares of FIRSTIER Common shall cease to have rights with respect to
such shares (except such rights, if any, as holders of certificates
representing FIRSTIER Common may have as dissenting shareholders),
and, except as aforesaid, their sole rights shall be to exchange said
certificates for shares of BANC ONE Common in accordance with this
Merger Agreement.
Certificates formerly representing shares of FIRSTIER Common
surrendered for cancellation by each shareholder entitled to exchange
shares of FIRSTIER Common for shares of BANC ONE Common by reason of
the Merger shall be accompanied by such appropriate, executed letter
of transmittal as BANC ONE may reasonably require; provided, however,
that if there be delivered to BANC ONE by any person who is unable to
produce any such certificate formerly representing shares of FIRSTIER
Common for surrender (i) evidence to the reasonable satisfaction of
BANC ONE that any such certificate has been lost, wrongfully taken or
destroyed, and (ii) such security or indemnity as reasonably may be
requested by BANC ONE to save it harmless, and (iii) evidence to the
reasonable satisfaction of BANC ONE that such person is the owner of
the shares theretofore represented by each certificate claimed by him
to be lost, wrongfully taken or destroyed and that he is the person
who would be entitled to present each such certificate and to receive
shares of BANC ONE Common pursuant to this Merger Agreement, then BANC
ONE, in the absence of actual notice to it that any shares theretofore
represented by any such certificate have been acquired by a bona fide
purchaser, shall deliver to such person the certificate(s)
representing shares of BANC ONE Common (and any fractional share
payment) which such person would have been entitled to receive upon
surrender of each such lost, wrongfully taken or destroyed certificate
representing shares of FIRSTIER Common.
(e) If prior to the Effective Time, (i) FIRSTIER shall declare a stock
dividend or distribution upon or subdivide, split up, reclassify or
combine FIRSTIER Common or declare a dividend, or make a distribution,
on FIRSTIER Common in any security convertible into FIRSTIER Common or
(ii) BANC ONE shall declare a stock dividend or distribution upon or
subdivide, split up, reclassify or combine BANC ONE Common or declare
a dividend, or make a distribution, on BANC ONE Common in any security
convertible into BANC ONE Common, appropriate adjustment or
adjustments will be made in the Exchange Rate. If, prior to the
Effective Time, BANC ONE shall declare an extraordinary or special
cash dividend (which shall not include BANC ONE's quarterly cash
dividend) or a dividend other than a stock dividend or other
distribution for which an adjustment is made in the Exchange Rate
pursuant to clause (ii) of the preceding sentence, then, to the extent
such dividend is not paid or payable by BANC ONE to the holders of
FIRSTIER Common as of the Effective Time, the Exchange Rate shall be
adjusted (the "Adjusted Exchange Rate") to be equal to the quotient of
(x) the Exchange Rate (as adjusted pursuant to the first sentence of
this Section (e) as of the date of such calculation, if such
adjustment is applicable) multiplied by the average of the daily
reported closing prices of BANC ONE Common as reported on the NYSE for
the ten trading days prior to the day of the announcement of such
dividend by BANC ONE (the "announcement date"), divided by (y) the
average of the daily reported closing prices of BANC ONE Common as
reported on the NYSE for the ten trading days after the announcement
date.
8. Board of Directors, Employees and Name Changes. The directors of FIRSTIER
immediately prior to the Effective Time shall serve as the directors of the
Surviving Corporation immediately following the Effective Time and until
the next annual meeting of shareholders at which their respective
successors are elected and qualified. The officers and employees of the
Surviving Corporation immediately following the Effective Time shall be the
officers and employees of FIRSTIER immediately before the Effective Time
with each such person to hold the same office in the Surviving Corporation
as held by such person in FIRSTIER. The directors, officers and employees
of the Subsidiaries immediately following the Effective Time shall be the
officers and employees of the respective Subsidiaries immediately before
the Effective Time.
FIRSTIER will cooperate with BANC ONE in the procurement of requisite
corporate and regulatory approvals (subject to the fiduciary duties of its
Board of Directors) and will use its best efforts to take such other steps
as are appropriate and necessary to effect changes in the name of each of
the Subsidiaries to include the words "BANK ONE" or "BANC ONE" so that such
name changes will become effective at the Effective Time.
9. Employee Benefits. Following the Effective Time, the employee benefit
programs to be available and applicable to the employees of FIRSTIER and
the Subsidiaries shall be as described in and governed by a Letter
Agreement dated April 19, 1993, pertaining to benefits between FIRSTIER and
BANC ONE (the "Benefits Agreement").
10. Undertakings of the Parties. FIRSTIER, BANC ONE BETA and BANC ONE further
agree as follows:
(a) This Merger Agreement shall be submitted to the shareholders of
FIRSTIER for approval at a meeting to be called and held in accordance
with applicable law and the Articles of Incorporation and By-laws of
FIRSTIER. Such shareholders' meeting will be scheduled to be held at
a time mutually acceptable to FIRSTIER and BANC ONE approximately 30
days following the mailing by FIRSTIER of its proxy statement to its
shareholders, which mailing will promptly follow the effective date of
the registration statement to be filed by BANC ONE with the Securities
and Exchange Commission as provided in Section 10(d). FIRSTIER and
BANC ONE will cooperate with each other in order to facilitate the
preparation, filing and clearance of the registration statement and
the proxy statement under Federal and State securities laws to be used
with respect to such shareholders' meeting and the exchange of shares
as contemplated by this Merger Agreement.
(b) BANC ONE will promptly prepare and file an application (believed in
good faith by BANC ONE to be substantially complete in form and
substance) to the Board of Governors of the Federal Reserve System
(the "Board") under appropriate provisions of Section 3 of the Bank
Holding Company Act of 1956, as amended, (ii) if necessary, to the
Office of Thrift Supervision ("OTS") under the appropriate provisions
of Section 10 of the Home Owners' Loan Act, as amended, and (iii), if
necessary, to the Director of the Nebraska Banking and Finance
Department (the "Nebraska Department"), for prior approval of the
Merger or the proposed acquisition of FIRSTIER and/or one of more of
the Subsidiaries by BANC ONE. FIRSTIER will furnish BANC ONE such
information, appropriate representations and documents as may be
reasonably requested by BANC ONE in connection therewith. BANC ONE
will use its best efforts to cause such applications to be approved by
the Board, the OTS and the Nebraska Department, respectively, as
applicable, and to obtain such other regulatory consents and approvals
as may be necessary to facilitate the Merger, in each case as soon as
possible, and will promptly provide FIRSTIER with copies of all such
applications together with correspondence to or from any such
regulators related thereto.
(c) After receipt of the Board's prior approval of BANC ONE's acquisition
of FIRSTIER, after approval of the acquisition and, if required, by
the OTS and/or the Nebraska Department, and after the approval of the
shareholders of FIRSTIER, as provided in Section 10(a), BANC ONE shall
designate the date as of which BANC ONE desires the Merger to become
effective and the Effective Time shall occur at the time and on the
date so designated, subject to Section 26 of this Merger Agreement.
In no event will the date designated by BANC ONE as the Effective Time
be sooner than the day following the day on which all approvals of the
Board, the OTS and the Nebraska Department have been received and any
required waiting periods with respect thereto have expired, nor will
the date designated by BANC ONE as the Effective Time be later than 31
days following the date at which all approvals of the Board, the OTS
and the Nebraska Department have been received and any required
waiting periods with respect thereto have expired; provided further,
however, that no party may terminate this Merger Agreement by reason
of the provisions of Section 26(b)(iii) of this Merger Agreement
during the period beginning with the date on which the approvals of
the Board, the OTS and the Nebraska Department have been received and
any mandatory waiting periods associated therewith have expired and
ending on the 31st day following such beginning date.
(d) BANC ONE will promptly prepare and file with the Securities and
Exchange Commission and use its best efforts to cause to become
effective as soon as possible, a registration statement, including the
related prospectus, and including the proxy statement referred to in
Section 10(a) above (the "Proxy Statement"), and any required
amendments thereto or supplements to any prospectus contained therein,
relating to the issuance of BANC ONE Common in the Merger as
contemplated by this Merger Agreement. Such registration statement
will not cover resales by any persons who may be considered
"underwriters" under Rule 145(c) of the Securities Act of 1933, as
amended (the "1933 Act"). BANC ONE shall use its best efforts to have
the shares of BANC ONE Common qualified or exempted from qualification
under all applicable state securities laws as soon as possible. In
the event that a stop order has been issued, or threatened, by the
Securities and Exchange Commission, that suspends or would suspend the
effectiveness of the registration statement, BANC ONE shall use its
best efforts to promptly remove, or cause not to be issued, any such
stop order.
(e) BANC ONE and/or BANC ONE BETA will assume and pay all expenses
incident to the obtaining of the requisite regulatory consents and
approvals. Without limiting the generality of the foregoing, the
expenses to be assumed and paid by BANC ONE shall include (i) all
legal and other expenses and taxes incurred by BANC ONE incident to
the consummation of the Merger contemplated by this Merger Agreement,
(ii) all legal and other expenses incurred by BANC ONE incident to the
preparation and filing of the applications to the Board, the OTS and
the Nebraska Department and other requests for regulatory consents and
approvals with the appropriate bank regulatory agencies as set forth
in or contemplated by this Merger Agreement, and (iii) all legal and
other expenses, if any, incurred in connection with the registration
of BANC ONE Common under Federal and state securities laws. The
expenses to be assumed and paid by BANC ONE and/or BANC ONE BETA shall
not include any legal or other expenses incurred by FIRSTIER in the
negotiation of this Merger Agreement, the examination or review of
documents for its own benefit, in connection with its own corporate
proceedings or to Morgan Stanley & Co. for services rendered on its
behalf. BANC ONE will pay the expenses of reproducing the Proxy
Statement. FIRSTIER shall be responsible for its legal and accounting
fees associated with the Proxy Statement, including the expenses and
fees to Morgan Stanley & Co. with respect to any opinion expressed
with respect to the fairness of the Exchange Rate to the holders of
FIRSTIER Common.
(f) All information furnished by or on behalf of FIRSTIER to BANC ONE or
any of its representatives in connection with this Merger Agreement
(whether before or after the date of this Merger Agreement) will be
kept confidential by BANC ONE in accordance with the terms of the
Confidentiality Agreement dated February 26, 1993 (the
"Confidentiality Agreement") between BANC ONE and FIRSTIER. All
information furnished by BANC ONE to FIRSTIER (whether before or after
the date of this Merger Agreement) and the transactions contemplated
hereby which is regarded by such furnishing party as confidential (and
is so designated not later than the time of delivery or the date of
this Merger Agreement) will be kept confidential by FIRSTIER and will
be used by FIRSTIER and its directors, officers, employees and
representatives of its advisors only in connection with this Merger
Agreement and the transactions contemplated hereby, except to the
extent that such information (i) is already known to such other party
when received, (ii) thereafter becomes lawfully obtainable from other
sources, otherwise than in violation of this paragraph or similar
duties or provisions regarding confidentiality, or (iii) is, in the
reasonable opinion of legal counsel for FIRSTIER, required to be
disclosed in any document filed with the Securities and Exchange
Commission, the Board, the OTS, the Nebraska Department or any other
governmental agency or authority.
(g) BANC ONE will provide FIRSTIER with copies of all filings made by BANC
ONE with the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the 1933 Act
and the respective rules and regulations of said Commission thereunder
reasonably in advance of making such filings, will provide FIRSTIER
and its counsel a reasonable opportunity to comment on such filings
and regulatory applications and will give due consideration to any
comments of FIRSTIER and its counsel before making any such filing or
application; and BANC ONE will provide FIRSTIER with copies of all
such filings and applications at the time filed if such filings and
applications are made at any time prior to the Effective Time.
(h) BANC ONE and BANC ONE BETA will furnish to FIRSTIER all information
concerning BANC ONE and BANC ONE BETA reasonably required by FIRSTIER
in connection with the preparation of proxy solicitation materials for
use in soliciting proxies in connection with the meeting of FIRSTIER's
shareholders called for the purpose of voting on the Merger and will
promptly advise FIRSTIER if BANC ONE determines that any of such
information is or becomes false or misleading in any material
respect. FIRSTIER will furnish to BANC ONE all information concerning
FIRSTIER and the Subsidiaries reasonably required by BANC ONE in
connection with BANC ONE's preparation of the registration statement
(including the related prospectus) and any required amendments or
supplements thereto, or in connection with other filings by BANC ONE
relating to the registration of its shares to be issued in the Merger
and will promptly advise BANC ONE if FIRSTIER determines that any such
information is or becomes false or misleading in any material respect.
(i) No press release or other public disclosure of matters related to this
Merger Agreement or any of the transactions contemplated hereby shall
be made by FIRSTIER or BANC ONE unless the other party shall have
provided its prior consent to the form and substance thereof;
provided, however, that nothing herein shall be deemed to prohibit any
party hereto from making any disclosure which its counsel deems
necessary or advisable in order to fulfill such party's disclosure
obligations imposed by law.
(j) BANC ONE has voted all the shares of BANC ONE BETA to approve and
adopt the proposal to merge BANC ONE BETA with FIRSTIER by means of a
unanimous written consent of BANC ONE BETA shareholders adopted in
lieu of a meeting to approve the Merger and approve this Merger
Agreement.
(k) For not less than the two-year period immediately following the
Effective Time, BANC ONE shall make available adequate current public
information about itself as that terminology is used in and as
required by Rule 144(c) of the Securities and Exchange Commission
under the 1933 Act.
(l) BANC ONE will vote any shares of FIRSTIER Common held by it or any of
its subsidiaries to approve and adopt this Merger Agreement and the
Merger at a meeting of the FIRSTIER shareholders held to approve the
Merger and adopt this Merger Agreement; provided, however, that a
subsidiary of BANC ONE shall not be required to vote in favor of the
transactions if, in the judgment of the subsidiary, such vote would
violate a fiduciary duty or exceed the subsidiary's authority pursuant
to an agreement with a third party.
(m) Each of BANC ONE, BANC ONE BETA and FIRSTIER will use its best efforts
to cause the Merger to qualify for pooling-of-interests accounting
treatment.
(n) FIRSTIER will use its best efforts to cause each person who, in the
joint opinion of counsel for BANC ONE and FIRSTIER, is at the
Effective Time or was, at the time of FIRSTIER's shareholders' meeting
referred to in Section 10 hereof, an "affiliate" of FIRSTIER (as that
term is used in Rules 144 and 145 promulgated by the Securities and
Exchange Commission under the 1933 Act), to execute and deliver to
BANC ONE the written undertakings in the form attached hereto as
Exhibit C.
(o) BANC ONE will initiate a pre-acquisition investigation and review of
the books, records and facilities of FIRSTIER and its Subsidiaries and
will complete such pre-acquisition investigation as soon as reasonably
possible but, in no event, not more than 60 days after the date of
this Merger Agreement. BANC ONE shall advise FIRSTIER at the
conclusion of such pre-acquisition investigation of all matters then
known to BANC ONE which are either (i) inconsistent in any material
and adverse respect with any of the representations and warranties of
FIRSTIER contained in this Merger Agreement or (ii), in the reasonable
judgment of the Board of Directors of BANC ONE, either are (x) of such
significance as to materially and adversely affect the financial
condition or the results of operations of FIRSTIER and the
Subsidiaries on a consolidated basis or (y) deviate materially and
adversely from FIRSTIER's audited financial statements for the year
ended December 31, 1992. BANC ONE shall have the right to terminate
this Merger Agreement as set forth in Section 26(c).
(p) In addition to BANC ONE's pre-acquisition investigation of FIRSTIER,
BANC ONE and FIRSTIER shall each provide the other with adequate
opportunity to conduct such further reviews and examinations of the
business, properties and conditions (financial and otherwise) of the
other as BANC ONE and FIRSTIER, respectively, shall deem prudent,
provided that such investigations shall not interfere unreasonably
with the normal operations of the party being reviewed.
(q) BANC ONE will use its reasonable best efforts to cause the shares of
BANC ONE Common to be issued to the shareholders of FIRSTIER pursuant
to this Merger Agreement to be listed on the NYSE as of the Effective
Time.
(r) Prior to the Effective Time, BANC ONE will file with the Securities
and Exchange Commission and use its reasonable best efforts to cause
to become effective not later than the Effective Time, a registration
statement on Form S-8 or other appropriate form to register with the
Securities and Exchange Commission the shares of BANC ONE Common which
may be issued to individuals upon the exercise of stock options and/or
other stock-related benefits assumed by BANC ONE pursuant to the
Benefits Agreement and will use its reasonable best efforts to cause
such registration statement to remain in effect until the exercise or
expiration of all such options and/or other stock-related benefits.
BANC ONE shall use its reasonable best efforts to have the shares of
BANC ONE Common which may be issued upon the exercise of such options
qualified or exempted from qualification from all applicable state
securities laws.
11. Dissenting Shareholders. If any shareholders of FIRSTIER Common who do not
vote their shares in favor of the Merger are entitled to dissenters' rights
under the Nebraska BCA, and if any such shareholders perfect applicable
dissenters' rights, if any, such shareholders will be entitled to
dissenters or appraisal rights, if any, under the Nebraska BCA.
12. Tax Opinion. BANC ONE and FIRSTIER shall use their respective best efforts
to obtain from Sullivan & Cromwell a written opinion addressed to FIRSTIER
and BANC ONE, that based upon the Internal Revenue Code and regulations
thereunder and rulings issued by the Internal Revenue Service in
transactions similar to those contemplated by this Merger Agreement:
(a) The statutory Merger of BANC ONE BETA with and into FIRSTIER will
constitute a reorganization within the meaning of Section 368(a)(1)(A)
and Section 368(a)(2)(E) of the Internal Revenue Code;
(b) No gain or loss will be recognized by BANC ONE or FIRSTIER as a
consequence of the transactions herein contemplated;
(c) No gain or loss will be recognized to the shareholders of FIRSTIER on
the exchange of their shares of FIRSTIER Common for shares of BANC ONE
Common (disregarding for this purpose any cash received pursuant to
the exercise of statutory dissenters' rights or for fractional share
interests to which they may be entitled);
(d) The Federal income tax basis of the BANC ONE Common received by the
shareholders of FIRSTIER Common for their shares of FIRSTIER Common
will be the same as the Federal income tax basis of the FIRSTIER
Common surrendered in exchange therefor (reduced by any amount
allocated to fractional share interests for which cash is received);
and
(e) The holding period of the BANC ONE Common received by a shareholder of
FIRSTIER will include the period for which the FIRSTIER Common
exchanged therefor was held, provided the exchanged FIRSTIER Common
was held as a capital asset by such shareholder on the date of the
exchange.
In rendering their opinion, Sullivan & Cromwell may require and rely upon
representations contained in certificates of officers of BANC ONE, BANC ONE
BETA and FIRSTIER.
13. Representations and Warranties of BANC ONE. BANC ONE represents and
warrants to FIRSTIER that, except as set forth in BANC ONE's disclosure
letter to FIRSTIER dated April 19, 1993 (the "BANC ONE Disclosure Letter"),
or as otherwise indicated below:
(a) BANC ONE is a corporation duly organized and validly existing in good
standing under the laws of the State of Ohio, is a registered bank
holding company under the Bank Holding Company Act of 1956, as
amended, and is qualified to do business and is in good standing in
the State of Ohio together with all other jurisdictions where it is
both required to so qualify and where the failure to so qualify would
have a material adverse effect on the financial condition or results
of operations of such party and its subsidiaries, taken as a whole,
other than any such effect attributable to or resulting from
regulatory matters affecting similarly situated banks or attributable
to or resulting from general economic conditions or on the ability of
such party to consummate the transactions contemplated hereby (a
"Material Adverse Effect"), and BANC ONE has full power and authority
(including all licenses, franchises, permits and other governmental
authorizations which are legally required) to engage in the businesses
and activities now conducted by it and its subsidiaries. BANC ONE is
not subject to any formal or informal agreement or understanding with,
nor is it subject to any order of, any bank regulatory authority
restricting or prohibiting or attempting to restrict or prohibit any
activities or conduct of BANC ONE. As of December 31, 1992, the
authorized capital stock of BANC ONE consisted of (i) 600,000,000
shares of common stock without par value, of which a total of
1,420,108,000 shares were issued and outstanding and none of which
were shares held by BANC ONE as treasury stock and (ii) 35,000,000
shares of preferred stock without par value, of which 373,076 shares
were issued and outstanding as Class B Convertible, no par value
shares, and 5,000,000 shares were issued and outstanding as Series C
$3.50 Cumulative Convertible Preferred Stock. All of the issued and
outstanding shares of BANC ONE's capital stock are duly authorized,
validly issued, fully paid, nonassessable and subject to no
pre-emptive rights. Subject only to obtaining the required regulatory
approvals, BANC ONE is, and at all times after the date of this Merger
Agreement to and including the Effective Time will be, authorized to
effect the Merger under applicable law.
(b) BANC ONE has furnished to FIRSTIER copies of the following financial
statements relating to BANC ONE and its consolidated subsidiaries:
the audited Consolidated Balance Sheets of BANC ONE as at December 31,
1992 and 1991 and the Consolidated Statements of Income, Shareholders'
Equity and Cash Flows for the years then ended, together with the
notes thereto, as audited by Coopers & Lybrand, BANC ONE's independent
auditors. Each of the aforementioned financial statements presents
fairly, in accordance with generally accepted accounting principles
(applied on a consistent basis except as disclosed in the footnotes
thereto), the consolidated financial position and results of
operations of BANC ONE as of the dates and for the periods therein set
forth. Such financial statements do not, as of the dates thereof,
include any material asset or omit any material liability, absolute or
contingent, or other fact, the inclusion or omission of which renders
such financial statements, in light of the circumstances under which
they were made, misleading in any material respect. Since December
31, 1992, there has not been any change in the financial condition,
results of operations or business of BANC ONE and its subsidiaries
that has had a Material Adverse Effect. Since December 31, 1992, BANC
ONE has issued approximately 26,747,000 additional shares of BANC ONE
Common.
(c) The Boards of Directors of BANC ONE and BANC ONE BETA have duly
authorized the execution and delivery of this Merger Agreement and
approved the Merger as contemplated by this Merger Agreement. No
authorization of this Merger Agreement or of the transactions hereby
contemplated is required by the shareholders of BANC ONE. BANC ONE
and BANC ONE BETA have all requisite power and authority to enter into
this Merger Agreement and BANC ONE and BANC ONE BETA have the
authority to consummate the transactions contemplated hereby. This
Merger Agreement constitutes the valid and legally binding and
enforceable obligation of each of BANC ONE and BANC ONE BETA and this
Merger Agreement and the consummation of the Merger have been duly
authorized and approved on behalf of BANC ONE and BANC ONE BETA by all
requisite corporate action. Provided the required approvals are
obtained from the Board, the OTS and the Nebraska Department, neither
the execution and delivery of this Merger Agreement nor the
consummation of the Merger will conflict with, result in the breach
of, constitute a default under or accelerate the performance provided
by the terms of any law, or any rule or regulation of any governmental
agency or authority or any judgment, order or decree of any court,
bank regulatory agency or other governmental agency to which BANC ONE
or BANC ONE BETA is subject, any contract, agreement or instrument to
which BANC ONE or BANC ONE BETA is a party or by which BANC ONE or
BANC ONE BETA is bound or committed, or the Articles of Incorporation
or Regulations of BANC ONE or the Articles of Incorporation or By-laws
of BANC ONE BETA, or constitute an event which with the lapse of time
or action by a third party, could, to the best of BANC ONE's
knowledge, result in the default under any of the foregoing or result
in the creation of any lien, charge or encumbrance upon any of the
assets or properties of BANC ONE or BANC ONE BETA or upon any of the
stock of BANC ONE or BANC ONE BETA or adversely affect the ability of
BANC ONE to consummate the transactions contemplated hereby, except,
in the case of contracts, agreements or instruments, such defaults,
conflicts or breaches which either (i) will be cured or waived prior
to the Effective Time or (ii) if not so cured or waived would not, in
the aggregate, have any Material Adverse Effect.
(d) The reserve for possible loan and lease losses shown on the December
31, 1992 Consolidated Balance Sheet of BANC ONE is adequate in all
material respects under the requirements of generally accepted
accounting principles to provide for possible losses, net of
recoveries relating to loans previously charged off, on loans
outstanding (including, without limitation, accrued interest
receivable) as of December 31, 1992.
(e) Except as disclosed in the financial statements referred to in Section
13(b), there is no litigation, action, suit, investigation or
proceeding pending or, to the best of the knowledge after due inquiry
of BANC ONE and its executive officers, overtly threatened, against or
affecting BANC ONE or any of its subsidiaries or involving any of
their respective properties or assets, at law or in equity, before any
federal, state, municipal, local or other governmental authority,
which is reasonably likely to be resolved adversely to the interest of
BANC ONE or its subsidiaries and, if so resolved, would have a
Material Adverse Effect or materially impair its ability, or that of
BANC ONE BETA, to perform under this Merger Agreement, and to the best
of the knowledge and belief after due inquiry of BANC ONE and its
executive officers, no one has reasonable or valid grounds on which it
reasonably can be expected that anyone will assert or initiate any
such litigation, action, suit, investigation or proceeding against
BANC ONE based upon the wrongful action or inaction of BANC ONE or its
subsidiaries or any of their respective officers, directors or
employees.
(f) At the Effective Time and on such subsequent dates when the former
shareholders of FIRSTIER surrender their FIRSTIER share certificates
for cancellation, the shares of BANC ONE Common to be issued to former
shareholders of FIRSTIER will have been duly authorized and validly
issued by BANC ONE and will be fully paid and nonassessable and
subject to no pre-emptive rights.
(g) BANC ONE and each of its subsidiaries have good and marketable title
to all their respective assets and properties, whether real or
personal, tangible or intangible which they purport to own, including
without limitation the capital stock of its subsidiaries and all other
assets and properties reflected in BANC ONE's Balance Sheet as of
December 31, 1992 or acquired subsequent thereto (except to the extent
that such assets and properties have been disposed of for fair value
in the ordinary course of business since December 31, 1992). Such
assets and properties are subject to no liens, mortgages, security
interests, encumbrances, pledges or charges of any kind, except (i) as
noted in said Balance Sheet or the notes thereto; (ii) statutory liens
for taxes not yet delinquent; and (iii) minor defects and
irregularities in title and encumbrances which do not materially
impair the use thereof for the purposes for which they are held; and
such liens, mortgages, security interests, encumbrances and charges do
not, in the aggregate, have a Material Adverse Effect. BANC ONE and
its subsidiaries as lessees have the unqualified right under valid and
subsisting leases to occupy, use, possess and control all property
leased by BANC ONE and its subsidiaries, except for the limitations
set forth in the BANC ONE Disclosure Letter. At the Effective Time
all limitations affecting such properties will not, in the aggregate,
have a Material Adverse Effect.
(h) To the best of the knowledge after due inquiry of BANC ONE and its
executive officers, BANC ONE and its subsidiaries have complied with
all laws, regulations and orders applicable to them and to the conduct
of their businesses, including without limitation, all statutes, rules
and regulations pertaining to the conduct of banking activities except
for violations which together with any penalty which results therefrom
have not had and will not have a Material Adverse Effect. Neither
BANC ONE nor any of its subsidiaries is in default under, and no event
has occurred which, to the best of BANC ONE's knowledge, after due
inquiry, is likely to result in the default under the terms of any
judgment, decree, order, writ, rule or regulation of any governmental
authority or court, whether federal, state or local and whether at law
or in equity, in each case where the default has had or is likely to
have a Material Adverse Effect.
(i) BANC ONE and BANC ONE BETA have not incurred and will not incur
directly or indirectly any liability for brokerage, finders', agents'
or investment bankers' fees or commissions in connection with this
Merger Agreement or the transactions contemplated hereby.
(j) Each pension, stock bonus or purchase, profit-sharing, retirement,
health and welfare plan maintained by or covering employees of BANC
ONE or any subsidiary of BANC ONE other than a multiemployer plan
(hereinafter referred to collectively as the "plans") which purports
to be a qualified plan under Section 401(a) of the Internal Revenue
Code is so qualified. All of the plans which constitute employee
benefit or employee welfare benefit plans subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), have
been maintained in compliance in all material respects with the
applicable requirements of ERISA. All material notices, reports and
other filings required under applicable law to be given or made to or
with any governmental agency with respect to the plans have been
timely filed or delivered. BANC ONE has no knowledge either of any
circumstances which would adversely affect the qualification of the
plans or their compliance with the applicable requirements of ERISA,
would result or have resulted in liability under Title IV of ERISA or
of any "reportable event" (as such term is defined in Section 4043(b)
of ERISA) or any "prohibited transaction" (as such term is defined in
Section 406 of ERISA and Section 4975(c) of the Internal Revenue Code)
which has occurred since the date on which said sections became
applicable to the plans and which could reasonably be expected to
result in any material liability of BANC ONE or any subsidiary to the
Pension Benefit Guaranty Corporation (the "PBGC"), the Department of
Treasury, the Department of Labor or any multiemployer plan. Those
plans which are defined benefit plans within the meaning of ERISA meet
the minimum funding standards set forth in the Internal Revenue Code
and ERISA and the assets of such plans equal or exceed the present
value of accrued benefits liabilities (as defined in Section
4001(a)(16) of ERISA) under such plans as of the most recent plan
valuation date, as determined on the basis of the actuarial
assumptions contained in the plan's most recent actuarial valuation.
There are no pending or threatened claims (other than claims for
benefits in the ordinary course), lawsuits or arbitrations which have
been asserted or instituted against the plans, any fiduciaries thereof
with respect to their duties to the plans or the assets of any of the
trusts under any of the plans which could reasonably be expected to
result in any material liability of BANC ONE or any subsidiary to the
PBGC, Department of Treasury, Department of Labor or any multiemployer
plan.
(k) Except where the failure to file would not have a Material Adverse
Effect on BANC ONE and its subsidiaries, BANC ONE and/or its
subsidiaries have duly filed all federal, state, local or other
income, franchise, bank, excise, real and personal property and other
tax returns and reports (including, but not limited to, those relating
to social security, withholding, unemployment insurance, and
occupation (sales) and use taxes and those filed on a consolidated,
combined or unitary basis) required to have been filed by BANC ONE or
its subsidiaries up to the date hereof. All of the foregoing returns
are true and correct in all material respects, and BANC ONE and its
subsidiaries have paid or, prior to the Effective Time, will pay all
taxes, interest and penalties shown on such returns or reports as
being due (except to the extent the same are contested in good faith
and, if material, summarized in the BANC ONE Disclosure Letter) or
claimed to be due to any federal, state, local or other taxing
authority, and there is, and at the Effective Time will be, no basis
for any additional claim or assessment which might materially and
adversely affect BANC ONE and its subsidiaries, except for those being
contested in good faith and summarized in the BANC ONE Disclosure
Letter. BANC ONE and its subsidiaries have paid or made adequate
provision in their financial statements or their books and records for
all taxes payable in respect of all periods ending on or before the
date hereof. BANC ONE and its subsidiaries have, or at the Effective
Time will have, no liability for any taxes, interest or penalties of
any nature whatsoever, except for those taxes which may have arisen up
to the Effective Time in the ordinary course of business and are
properly accrued on the books of BANC ONE as of the Effective Time or
are being contested in good faith and have, if material, been
summarized in the BANC ONE Disclosure Letter.
(l) BANC ONE has in effect insurance coverage with reputable insurers,
which in respect of amounts, premiums, types and risks insured,
constitutes reasonably adequate coverage against all risks customarily
insured against by bank holding companies comparable in size and
operation to BANC ONE.
(m) Neither the Proxy Statement nor the related registration statement nor
any amendment or supplement thereto that is filed with the Securities
and Exchange Commission in connection with the transactions
contemplated hereby (except for any information which has been or
shall be supplied by FIRSTIER for inclusion in the Proxy Statement and
registration statement and is so included as so supplied) shall
contain (in the case of information relating to the Proxy Statement,
at the time it is mailed and in the case of information relating to
the registration statement at the time it becomes effective) any
untrue statement of a material fact or shall omit to state a material
fact necessary to make the statements contained therein, in light of
the circumstances in which they are made, not misleading. The
registration statement and any amendments or supplements thereto that
are filed with the Securities and Exchange Commission in connection
with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of the 1933 Act and the
rules and regulations promulgated thereunder.
(n) No employee of BANC ONE or any of its subsidiaries is represented, for
purposes of collective bargaining, by a labor organization of any
type. BANC ONE is unaware of any efforts during the past five years
to unionize or organize any employees of BANC ONE or any of its
subsidiaries, and no claim related to such employees under the Fair
Labor Standards Act, National Labor Relations Act, Civil Rights of
1964, Walsh-Healy Act, Davis Bacon Act, Civil Rights Act of 1866, Age
Discrimination in Employment Act, Equal Pay Act of 1963, Executive
Order No. 11246, Federal Unemployment Tax Act, Vietnam Era Veterans
Readjustment Act, Occupational Safety and Health Act, or any state or
local employment related law, order, ordinance or regulation, no
unfair labor practice, discrimination or wage-and-hour claim is
pending or, to the best of BANC ONE's knowledge, threatened against
BANC ONE or any of its subsidiaries which claim has had or is
reasonably likely to have a Material Adverse Effect.
(o) To the actual knowledge of BANC ONE and its executive officers: (i)
with respect to any contaminant, pollutant, hazardous substance,
hazardous waste, hazardous pollutant, toxic pollutant, toxic waste or
toxic substance ("Contaminant"), there are no material actions,
proceedings or investigations pending or threatened before any federal
or state environmental regulatory body, or before any federal or state
court, alleging non-compliance with or liability in connection with,
by BANC ONE or any of its subsidiaries, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601 et seq. ("CERCLA"), the Resource Conservation and Re-
covery Act, 42 U.S.C. Sections 6901 et seq. ("RCRA"), the Clean Water
Act, 33 U.S.C. Sections 1251 et seq. ("CWA"), or the Clean Air Act,
42 U.S.C. Sections 7401 et seq. ("CAA"), as each is amended from
time to time, or any other federal, state, local or municipal statute,
ordinance or regulation, or order,
ruling or other decision of any court, administrative agency or other
governmental authority relating to health or safety or environmental
protection (such statutes, ordinances, regulations, orders, rulings
and decisions, together, "Environmental Laws"); (ii) neither BANC ONE
nor any of its subsidiaries is responsible in any material respect
under any Environmental Law for any release by any person at or in the
vicinity of real property of any Contaminant, including without
limitation by spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing of
any such Contaminant into the environment (collectively "Release");
(iii) neither BANC ONE nor any of its subsidiaries is responsible for
any material costs of any response action required by virtue of any
Release of any Contaminant into the environment including, without
limitation, costs arising from investigation, removal or remediation
of Contaminants, security fencing, alternative water supplies,
temporary evacuation and housing and other emergency assistance
undertaken by any environmental regulatory body or any other person;
(iv) BANC ONE and its subsidiaries are, in all material respects, in
compliance with all applicable Environmental Laws; and (v) no real
property owned or used by BANC ONE or any of its subsidiaries contains
any Contaminant including, without limitation, any asbestos, PCBs or
petroleum products or byproducts in any form, the presence, location
or condition of which (a) is reasonably likely to require remediation
or other corrective action pursuant to any Environmental Law in any
material respect, or (b) otherwise would pose any significant health
or safety risk unless remedial measures were taken.
(p) BANC ONE and/or its subsidiaries (i) have surveyed the facilities
where BANC ONE and its subsidiaries conduct their businesses
including, without limitation, automatic teller machines
(collectively, the "BANC ONE Facilities") for compliance with the
Americans with Disabilities Act and the regulations issued thereunder
(collectively, "ADA"); (ii) have developed action plans to remove
architectural barriers including communication barriers that are
structural in nature from existing BANC ONE Facilities (collectively,
the "BANC ONE Barriers") when such removal is "readily achievable," as
that term is defined in ADA; (iii) will finalize action plans for
automatic teller machines ("ATMs") upon clarification by the
Architectural and Transportation Barriers Compliance Board ("ATBCB");
(iv) have developed or will develop schedules for BANC ONE Barrier
removal from BANC ONE Facilities in such action plans so that BANC ONE
Barrier removal will be complete on January 26, 1992 or as soon as
practicable thereafter; and (v) have removed all BANC ONE Barriers in
BANC ONE Facilities or will cause all BANC ONE Barriers to be removed
in accordance with such action plans. All "alterations" (as such term
is defined in ADA) to BANC ONE Facilities undertaken after January 26,
1992 comply with ADA and the ATBCB Accessibility Guidelines for
Buildings and Facilities ("ADAAG"). Effective January 26, 1992, all
plans and designs for new construction to be utilized by BANC ONE and
its subsidiaries comply with ADA and ADAAG. To the best of BANC ONE's
knowledge, after due inquiry, no material investigations, proceedings,
or complaints, formal or informal, are pending or threatened against
BANC ONE and/or its subsidiaries in connection with BANC ONE
Facilities under ADA, ADAAG, or any other state or federal law
concerning accessibility for individuals with disabilities.
(q) The statements made in the BANC ONE Disclosure Letter and any
attachments thereto shall be deemed to constitute representations and
warranties of BANC ONE under this Merger Agreement to the same extent
as if herein set forth in full. Anything disclosed in the BANC ONE
Disclosure Letter or the attachments thereto shall be considered to
have been disclosed for purposes of all representations, warranties
and covenants under this Merger Agreement.
14. Representations and Warranties of BANC ONE BETA. BANC ONE BETA represents
and warrants to FIRSTIER that, except as set forth in the BANC ONE
Disclosure Letter, and except as otherwise indicated below:
(a) BANC ONE BETA is a corporation duly organized and validly existing in
good standing under the laws of the State of Ohio and is qualified to
do business and is in good standing in the State of Ohio together with
all other jurisdictions where it is both required to so qualify and
where the failure to so qualify would have a Material Adverse Effect
and BANC ONE BETA has full power and authority (including all
licenses, franchises, permits and other governmental authorizations
which are legally required) to engage in the businesses and activities
now conducted by it. The authorized capital stock of BANC ONE BETA is
500 shares of Common Stock with par value of $1.00 per share, all of
which are issued and outstanding and owned by BANC ONE free and clear
of all liens, security interests or other encumbrances. BANC ONE BETA
has no subsidiaries.
(b) The Board of Directors of BANC ONE BETA has duly authorized execution
of this Merger Agreement and approved the acquisition of FIRSTIER as
contemplated by said Merger Agreement. BANC ONE, the sole shareholder
of BANC ONE BETA, has voted all the shares of BANC ONE BETA to approve
the Merger and adopt this Merger Agreement. BANC ONE BETA has all
requisite power and authority to enter into this Merger Agreement and
has the authority to consummate the transactions contemplated hereby.
This Merger Agreement constitutes the valid and legally binding
obligation of BANC ONE BETA and this Merger Agreement and the
consummation hereof have been duly authorized and approved on behalf
of BANC ONE BETA by all requisite corporate action. Provided the
required approvals are obtained from the Board, the OTS and the
Nebraska Department, neither the execution and delivery of this Merger
Agreement nor the consummation of the Merger will conflict with,
result in the breach of, constitute a default under or accelerate the
performance provided by the terms of any law, or any rule or
regulation of any governmental agency or authority or any judgment,
order or decree of any court, bank regulatory agency or other
governmental agency to which BANC ONE BETA may be subject, any
contract, agreement or instrument to which BANC ONE BETA is a party or
by which BANC ONE BETA is bound or committed, or the Articles of
Incorporation, Regulations or By-laws of BANC ONE BETA, or constitute
an event which with the lapse of time or action by a third party,
could, to the best of BANC ONE BETA's knowledge, result in the default
under any of the foregoing or result in the creation of any lien,
charge or encumbrance upon any of the assets or properties of BANC ONE
BETA or adversely affect the ability of BANC ONE to consummate the
transactions contemplated hereby.
15. Representations and Warranties of FIRSTIER. FIRSTIER represents and
warrants to BANC ONE that, except as set forth in FIRSTIER's disclosure
letter to BANC ONE dated April 19, 1993 (the "FIRSTIER Disclosure Letter"),
or as otherwise indicated below:
(a) FIRSTIER is a corporation duly organized and validly existing in good
standing under the laws of the State of Nebraska, is a registered bank
holding company under the Bank Holding Company Act of 1956, as
amended, and is qualified to do business and is in good standing in
the State of Nebraska, together with all other jurisdictions where it
is both required to so qualify and where the failure to so qualify
would have a Material Adverse Effect, and FIRSTIER has full power and
authority (including all licenses, franchises, permits and other
governmental authorizations which are legally required) to engage in
the businesses and activities now conducted by it and its
Subsidiaries. FIRSTIER is not subject to any formal or informal
agreement or understanding with, nor is it subject to any order of,
any bank regulatory authority restricting or prohibiting or attempting
to restrict or prohibit any activities or conduct of FIRSTIER. As of
December 31, 1992, the authorized capital stock of FIRSTIER consisted
of 20,000,000 shares of FIRSTIER Common, of which 11,449,000 shares
were issued and outstanding, not including 137,056 shares of treasury
stock owned by FIRSTIER, and 2,000,000 shares of Preferred Stock, none
of which were issued and outstanding. All of the issued and
outstanding shares of FIRSTIER Common are duly authorized, validly
issued, fully paid and nonassessable and none are issued in violation
of the preemptive rights of any shareholder. There are no outstanding
options, phantom stock units, stock appreciation rights, warrants or
commitments of any kind related to FIRSTIER's capital stock except for
(i) the option to be granted to BANC ONE pursuant to Section 21 of
this Merger Agreement, (ii) outstanding stock options which have been
granted related to the purchase of not more than 401,304 shares of
FIRSTIER Common pursuant to the FIRSTIER 1989 Omnibus Equity Plan
(hereinafter referred to as the "Option Plan"), (iii) 63,600 phantom
stock units granted pursuant to the Option Plan, which phantom stock
units provide only for a cash award, and (iv) the rights (the
"FIRSTIER Rights") issued pursuant to a Rights Agreement, dated as of
February 17, 1992 (the "FIRSTIER Rights Agreement"), between FIRSTIER
and NBD Bank, N.A., as Rights Agent.
(b) FIRSTIER has furnished to BANC ONE copies of the following financial
statements relating to FIRSTIER and the Subsidiaries on a consolidated
basis: the audited Consolidated Balance Sheet of FIRSTIER as at
December 31, 1992 and 1991, and the Consolidated Statements of Income,
Stockholders' Equity and Cash Flows for the years then ended, together
with the notes thereto, as audited by Arthur Andersen (in the case of
the financial statements for the year ended December 31, 1992) and
KPMG Peat Marwick (in the case of the financial statements for the
year ended December 31, 1991), each Certified Public Accountants.
Each of the aforementioned financial statements presents fairly, in
accordance with generally accepted accounting principles (applied on a
consistent basis except as disclosed in the footnotes thereto), the
consolidated financial position and results of operations of FIRSTIER
as of the dates and for the periods therein set forth. Such financial
statements do not, as of the dates thereof, include any material asset
or omit any material liability, absolute or contingent, or other fact,
the inclusion or omission of which renders such financial statements,
in light of the circumstances under which they were made, misleading
in any material respect. Since December 31, 1992, there has not been
any change in the financial condition, results of operations or
business of FIRSTIER and the Subsidiaries that has had a Material
Adverse Effect. As of the date of this Merger Agreement, 11,581,444
shares of FIRSTIER Common are issued, including 118,506 shares of
FIRSTIER Common held by FIRSTIER as treasury shares.
(c) The Board of Directors of FIRSTIER has duly authorized execution and
delivery of this Merger Agreement and approved the Merger as
contemplated by the Merger Agreement and, subject to the fiduciary
duties of its Board of Directors, will recommended it to the FIRSTIER
shareholders for adoption. Except as may be set forth in attached
Exhibit A, FIRSTIER and/or one or more of its Subsidiaries own
beneficially and of record all of the outstanding shares of the
Subsidiaries. Subject to the approval by the shareholders of
FIRSTIER, this Merger Agreement constitutes the valid, legally binding
and enforceable obligation of FIRSTIER and FIRSTIER has all requisite
power and authority to enter into this Merger Agreement and FIRSTIER
has the authority to consummate the transactions contemplated hereby
so that, provided all required corporate and regulatory approvals are
obtained, neither the execution and delivery of this Merger Agreement
nor the consummation of the Merger will conflict with, result in the
breach of, constitute a default under or accelerate the performance
provided by the terms of any law, or any rule or regulation of any
governmental agency or authority or any judgment, order or decree of
any court, bank regulatory agency or other governmental agency to
which FIRSTIER is subject, any contract, agreement or instrument to
which FIRSTIER is a party or by which FIRSTIER is bound or committed,
or the Articles of Incorporation or By-Laws of FIRSTIER, or constitute
an event which with the lapse of time or action by a third party,
could, to the best of FIRSTIER's knowledge, result in the default
under any of the foregoing or result in the creation of any lien,
charge or encumbrance upon any of the assets or properties of FIRSTIER
or upon any of FIRSTIER's capital stock; except, in the case of
contracts, agreements or instruments, such defaults, conflicts or
breaches which either (i) will be cured or waived prior to the
Effective Time or (ii) if not so cured or waived would not, in the
aggregate, have a Material Adverse Effect.
(d) The reserve for possible loan and lease losses shown on the December
31, 1992 Consolidated Balance Sheet of FIRSTIER and its Subsidiaries
is adequate in all material respects under the requirements of
generally accepted accounting principles to provide for possible
losses, net of recoveries relating to loans previously charged off, on
loans outstanding (including, without limitation, accrued interest
receivable) as of December 31, 1992.
(e) Except as disclosed in the financial statements referred to in Section
15(b), there is no other litigation, action, suit, investigation or
proceeding pending or, to the best of the knowledge after due inquiry
of FIRSTIER and its executive officers, overtly threatened, against or
affecting FIRSTIER or any of its Subsidiaries or involving any of
their respective properties or assets, at law or in equity, before any
federal, state, municipal, local or other governmental authority which
is reasonably likely to be resolved adversely to the interest of
FIRSTIER or its Subsidiaries and, if so resolved, would have a
Material Adverse Effect or materially impair its ability to perform
under this Merger Agreement, and to the best of the knowledge and
belief after due inquiry of FIRSTIER and its executive officers, no
one has reasonable or valid grounds on which it reasonably can be
expected that anyone will assert or initiate any such litigation,
action, suit, investigation or proceeding against FIRSTIER based upon
the wrongful action or inaction of FIRSTIER or any of its Subsidiaries
or any of their respective officers, directors or employees.
(f) FIRSTIER and its Subsidiaries have good and marketable title to all
their respective assets and properties, whether real or personal,
tangible or intangible, including without limitation the capital stock
of the Subsidiaries and all other assets and properties reflected in
FIRSTIER's Balance Sheet as of December 31, 1992 or acquired
subsequent thereto (except to the extent that such assets and
properties have been disposed of for fair value in the ordinary course
of business since December 31, 1992). Such assets and properties are
subject to no liens, mortgages, security interests, encumbrances,
pledges or charges of any kind, except (i) as noted in said Balance
Sheet or the notes thereto; (ii) statutory liens for taxes not yet
delinquent; and (iii) minor defects and irregularities in title and
encumbrances which do not materially impair the use thereof for the
purposes for which they are held; and such liens, mortgages, security
interests, encumbrances and charges do not, in the aggregate, have a
Material Adverse Effect. FIRSTIER and its Subsidiaries as lessees
have the right under valid and subsisting leases to occupy, use,
possess and control all property leased by FIRSTIER and its
Subsidiaries, except for the limitations set forth in the FIRSTIER
Disclosure Letter. At the Effective Time all limitations affecting
such properties will not, in the aggregate, have a Material Adverse
Effect.
(g) To the best of the knowledge after due inquiry of FIRSTIER and its
executive officers, FIRSTIER and its Subsidiaries have complied with
all laws, regulations and orders applicable to them and to the conduct
of their businesses, including without limitation, all statutes, rules
and regulations pertaining to the conduct of banking activities except
for violations which together with any penalty which results therefrom
have not had and will not have a Material Adverse Effect. Neither
FIRSTIER nor any of its Subsidiaries is in default under, and no event
has occurred which, to the best of FIRSTIER's knowledge, after due
inquiry, is likely to result in the default under the terms of any
judgment, decree, order, writ, rule or regulation of any governmental
authority or court, whether federal, state or local and whether at law
or in equity, in each case when the default has had or is likely to
have a Material Adverse Effect.
(h) FIRSTIER has not, since December 31, 1992 to the date hereof (i) sold
or issued any corporate debt securities or sold, issued, reissued or
increased its shares of its capital stock other than in connection
with the exercise of stock options; (ii) granted any option, phantom
stock unit, stock appreciate right for or related to the purchase of
capital stock (other than the Option granted to BANC ONE pursuant to
Section 21 of this Merger Agreement); (iii) declared or set aside or
paid any dividend or other distribution in respect of its capital
stock, except as permitted pursuant to Section 16(a) (including
declaration and payment of its regular quarterly dividend for the
first quarter of 1993) hereof or as incurred in carrying out the
transactions contemplated by this Merger Agreement, or directly or
indirectly, purchased, redeemed or otherwise acquired any shares of
such stock; (iv) incurred any obligation or liability (absolute or
contingent) except obligations or liabilities incurred in the ordinary
course of business, or mortgaged, pledged or subjected to lien or
encumbrance (other than statutory liens for taxes not yet delinquent
and banking transactions conducted in the ordinary course of business)
any of its material assets or properties; (v) discharged or satisfied
any material lien or encumbrance or paid any obligation or liability
(absolute or contingent), other than current liabilities included in
its financial statements as of December 31, 1992, current liabilities
incurred since the date thereof in the ordinary course of business and
liabilities incurred in carrying out the transactions contemplated by
this Merger Agreement; (vi) sold, exchanged or otherwise disposed of
any material capital assets; (vii) made any extraordinary officers'
salary increase or wage increase, entered into any employment contract
with any officer or salaried employee or, except in connection with
implementation of a thrift plan, instituted any employee welfare,
bonus, stock option, profit-sharing, retirement or similar plan or
arrangement; (viii) suffered any damage, destruction or loss, whether
or not covered by insurance, that has had a Material Adverse Effect or
waived any rights of value which, in the aggregate, have had a
Material Adverse Effect; (ix) entered or agreed to enter into any
agreement or arrangement granting any preferential right to purchase
any of its material assets, properties or rights or requiring the
consent of any party to the transfer and assignment of any such
material assets, properties or rights; or (x) entered into any other
material transaction (other than in the ordinary course of business)
except as expressly contemplated by this Merger Agreement.
(i) Except as set forth in the FIRSTIER Document List (the "FIRSTIER
Document List") attached to the FIRSTIER Disclosure Letter, neither
FIRSTIER nor any of its Subsidiaries is a party to or bound by any
written or oral (i) employment or consulting contract which is not
terminable by FIRSTIER or its Subsidiaries on 60 days or less notice,
(ii) employee bonus, deferred compensation, pension, stock bonus or
purchase, profit-sharing, retirement or stock option plan, (iii) other
employee benefit or welfare plan, or (iv) other material contracts as
defined by the instructions to Exhibit 10 under Item 601 of Securities
and Exchange Commission Regulation S-K. All such pension, stock
bonus, profit-sharing, retirement, health and welfare plans (other
than any multiemployer plans) set forth in the FIRSTIER Document List
are hereinafter referred to collectively as the "plans." Those plans
intended to be qualified plans under Section 401(a) of the Internal
Revenue Code are so qualified. All of the plans which constitute
employee pension benefit plans or employee welfare plans subject to
ERISA have been maintained in compliance in all material respects with
the applicable requirements of ERISA. All material notices, reports
and other filings required under applicable law to be given or made to
or with any governmental agency with respect to the plans have been
timely filed or delivered. FIRSTIER has no knowledge either of any
circumstances which would adversely affect the qualification of the
plans or their compliance with ERISA, would result or have resulted in
liability under Title IV of ERISA or of any unreported "reportable
event" (as such term is defined in Section 4043(b) of ERISA) or
"prohibited transaction" (as such term is defined in Section 406 of
ERISA and Section 4975(c) of the Internal Revenue Code) which has
occurred since the date on which said sections became applicable to
the plans and which could reasonably be expected to result in any
material liability of FIRSTIER or any Subsidiary to the PBGC, the
Department of Treasury, the Department of Labor or any multiemployer
plan. Those plans which are defined benefit plans within the meaning
of ERISA meet the minimum funding standards set forth in the Internal
Revenue Code and ERISA and the assets of such plans equal or exceed
the present value of the benefits liabilities (as defined in Section
4001(a)(16) of ERISA) under such plans as of the most recent plan
valuation date, as determined on the basis of the actuarial
assumptions contained in the plan's most recent actuarial valuation).
There are no pending or threatened claims (other than claims for
benefits in the ordinary course), lawsuits or arbitrations which have
been asserted or instituted against the plans, any fiduciaries thereof
with respect to their duties to the plans or the assets of any of the
trusts under any of the plans which could reasonably be expected to
result in any material liability of FIRSTIER or any of its
Subsidiaries to the PBGC, the Department of Treasury, the Department
of Labor or any multiemployer plan.
(j) Except where the failure to file would not have a Material Adverse
Effect on FIRSTIER and its Subsidiaries, FIRSTIER and/or its
Subsidiaries have duly filed all federal, state, local or other
income, franchise, bank, excise, real and personal property and other
tax returns and reports (including, but not limited to, those relating
to social security, withholding, unemployment insurance, and
occupation (sales) and use taxes and those filed on a consolidated,
combined or unitary basis) required to have been filed by FIRSTIER or
its Subsidiaries up to the date hereof. FIRSTIER has made available
to BANC ONE a copy of its Federal income tax return for the year 1991
and undertakes to make available and provide upon request to BANC ONE
a copy of its Federal income tax return for the year 1992 when the
same becomes available. All of the foregoing returns are true and
correct in all material respects, and FIRSTIER and its Subsidiaries
have paid or, prior to the Effective Time, will pay all taxes,
interest and penalties shown on such returns or reports as being due
(except to the extent the same are contested in good faith and, if
material, summarized in the FIRSTIER Disclosure Letter) or claimed to
be due to any federal, state, local or other taxing authority, and
there is, and at the Effective Time will be, no basis for any
additional claim or assessment which might materially and adversely
affect FIRSTIER and its Subsidiaries, except for those being contested
in good faith and summarized in the FIRSTIER Disclosure Letter.
FIRSTIER and its Subsidiaries have paid or made adequate provision in
their financial statements or their books and records for all taxes
payable in respect of all periods ending on or before the date
hereof. FIRSTIER and its Subsidiaries have, or at the Effective Time
will have, no liability for any taxes, interest or penalties of any
nature whatsoever, except for those taxes which may have arisen up to
the Effective Time in the ordinary course of business and are properly
accrued on the books of FIRSTIER as of the Effective Time or are being
contested in good faith and have, if material, been summarized in the
FIRSTIER Disclosure Letter.
(k) FIRSTIER has in effect insurance coverage with reputable insurers
which in respect of amounts, premiums, types and risks insured,
constitutes reasonably adequate coverage against all risks customarily
insured against by bank holding companies comparable in size and
operation to FIRSTIER.
(l) FIRSTIER has not incurred and will not incur any liability for
brokerage, finders', agents', or investment bankers' fees or
commissions in connection with this Merger Agreement or the
transactions contemplated hereby except for fees to Morgan Stanley &
Co. Incorporated to be determined in accordance with the terms of an
engagement letter dated February 17, 1993, which is annexed as an
exhibit to the FIRSTIER Disclosure Letter.
(m) FIRSTIER has annexed to the FIRSTIER Disclosure Letter a "loan quality
report" (the "FIRSTIER Loan Schedule") for FIRSTIER's Subsidiaries.
Except as specifically noted on the FIRSTIER Loan Schedule, no
Subsidiary is, as of the date hereof, a party to any written or oral
(i) loan agreement, note or borrowing arrangement, other than credit
card loans and other loans the unpaid balance of which does not exceed
$100,000 per loan, under the terms of which the obligor is over 90
days delinquent in payment of principal or interest; (ii) loan
agreement, note or borrowing arrangement which has been classified as
"substandard," "doubtful," "loss," "other loans especially mentioned"
or any comparable classifications by FIRSTIER, a Subsidiary or banking
regulator; or, (iii) to the best of FIRSTIER's knowledge, loan
agreement, note or borrowing arrangement in violation of any law,
regulation or rule of any governmental authority and which violation
could, to the best of FIRSTIER's knowledge after due inquiry, have a
Material Adverse Effect.
(n) None of the information provided by FIRSTIER to BANC ONE for inclusion
in the Proxy Statement or related registration statement or any
amendment or supplement thereto (to the extent so included as so
provided) shall contain (in the case of information relating to the
Proxy Statement, at the time it is mailed and in the case of
information relating to the registration statement, at the time it
becomes effective) any untrue statement of a material fact or shall
omit to state a material fact necessary to make the statements
contained therein, in light of the circumstances in which they are
made, not misleading. The Proxy Statement that is filed with the
Securities and Exchange Commission in connection with the meeting of
the shareholders of FIRSTIER will comply as to form in all material
respects with the provisions of the Exchange Act and the rules and
regulations promulgated thereunder.
(o) FIRSTIER has annexed a contracts schedule (the "FIRSTIER Contracts
Schedule") to the FIRSTIER Disclosure Letter setting forth certain
material contracts, including credit agreements, on which FIRSTIER or
any of the Subsidiaries is the obligor, maker, issuer or guarantor,
other than any contracts that have been included as an Exhibit to
FIRSTIER's Annual Report on Form 10-K for the year ended December 31,
1992. Except as specifically disclosed on the FIRSTIER Contracts
Schedule, neither FIRSTIER nor any Subsidiary is a party to any
material contract and/or any material credit agreement as obligor,
maker, issuer or guarantor and which contract or agreement contains
covenants which make the acquisition of FIRSTIER or any Subsidiary by
or Merger with another entity a condition of default or acceleration.
(p) Attached hereto as Exhibit A is FIRSTIER's Subsidiaries List which
sets forth the complete legal name of each Subsidiary, a designation
of the laws under which each is incorporated, the activities conducted
by each entity and the regulatory approvals, if any, requested and/or
obtained by FIRSTIER or such entities in connection with the
acquisition of each such entity and/or regulatory approvals received
by such entity necessary to engage in such activities. Except as set
forth in Exhibit A, FIRSTIER has no subsidiaries. Each of the
Subsidiaries is a corporation or similar entity duly organized and
validly existing in good standing under the laws of the United States
or the state of its incorporation and has full power and authority
(including all licenses, franchises, permits and other governmental
authorizations which are legally required) to engage in the businesses
and activities now conducted by it where the failure to so qualify
(together with all such failures) would have a Material Adverse
Effect. Except as set forth on Exhibit A, FIRSTIER owns all the
outstanding shares of capital stock of each Subsidiary, which stock is
fully paid and non-assessable. Neither FIRSTIER nor any Subsidiary is
a party to any partnership or joint venture except as may be set forth
and described in Exhibit A.
(q) No employee of FIRSTIER or a Subsidiary is represented, for purposes
of collective bargaining, by a labor organization of any type.
FIRSTIER is unaware of any efforts during the past five years to
unionize or organize any employees of FIRSTIER or the Subsidiaries,
and no claim related to such employees under the Fair Labor Standards
Act, National Labor Relations Act, Civil Rights of 1964, Walsh-Healy
Act, Davis Bacon Act, Civil Rights Act of 1866, Age Discrimination in
Employment Act, Equal Pay Act of 1963, Executive Order No. 11246,
Federal Unemployment Tax Act, Vietnam Era Veterans Readjustment Act,
Occupational Safety and Health Act, or any state or local employment
related law, order, ordinance or regulation, no unfair labor practice,
discrimination or wage-and-hour claim is pending or, to the best of
FIRSTIER's knowledge, threatened against FIRSTIER or any Subsidiary,
which claim has had or is reasonably likely to have a Material Adverse
Effect.
(r) To the actual knowledge of FIRSTIER and its executive officers: (i)
with respect to any Contaminant, there are no material actions,
proceedings or investigations pending or threatened before any federal
or state environmental regulatory body, or before any federal or state
court, alleging non-compliance with or liability in connection with,
by FIRSTIER or any Subsidiary, CERCLA or any other Environmental Laws;
(ii) neither FIRSTIER nor any Subsidiary is responsible in any
material respect under any Environmental Law for any Release by any
person at or in the vicinity of any real property of any Contaminant,
including without limitation by spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing of any such Contaminant into the environment;
(iii) neither FIRSTIER nor any Subsidiary is responsible for any
material costs of any response action required by virtue of any
Release of any Contaminant into the environment including, without
limitation, costs arising from investigation, removal or remediation
of Contaminants, security fencing, alternative water supplies,
temporary evacuation and housing and other emergency assistance
undertaken by any environmental regulatory body or any other person;
(iv) FIRSTIER and each Subsidiary is, in all material respects, in
compliance with all applicable Environmental Laws; and (v) no real
property owned or used by FIRSTIER or any Subsidiary contains any
Contaminant including, without limitation, any asbestos, PCBs or
petroleum products or byproducts in any form, the presence, location
or condition of which (a) is reasonably likely to require remediation
or other corrective action pursuant to any Environmental Law in any
material respect, or (b) otherwise would pose any significant health
or safety risk unless remedial measures were taken.
(s) FIRSTIER and/or the Subsidiaries (i) have surveyed the facilities
where FIRSTIER and the Bank conduct their businesses including,
without limitation, ATMs (collectively, the "FIRSTIER Facilities") for
compliance with ADA; (ii) have developed action plans to remove
architectural barriers including communication barriers that are
structural in nature from existing FIRSTIER Facilities (collectively,
the "FIRSTIER Barriers") when such removal is "readily achievable," as
that term is defined in ADA; (iii) will finalize action plans for ATMs
upon clarification by the ATBCB; (iv) have developed or will develop
schedules for FIRSTIER Barrier removal from FIRSTIER Facilities in
such action plans so that FIRSTIER Barrier removal will be complete on
January 26, 1992 or as soon as practicable thereafter; and (v) have
removed all FIRSTIER Barriers in FIRSTIER Facilities or will cause all
FIRSTIER Barriers to be removed in accordance with such action plans.
All "alterations" (as such term is defined in ADA) to FIRSTIER
Facilities undertaken after January 26, 1992 comply with ADA and the
ADAAG. Effective January 26, 1992, all plans and designs for new
construction to be utilized by FIRSTIER and the Subsidiaries comply
with ADA and ADAAG. To the best of FIRSTIER's knowledge, after due
inquiry, no material investigations, proceedings, or complaints,
formal or informal, are pending or threatened against FIRSTIER and/or
the Subsidiaries in connection with FIRSTIER Facilities under ADA,
ADAAG, or any other state or federal law concerning accessibility for
individuals with disabilities.
(t) The statements made in the FIRSTIER Disclosure Letter and any
attachments thereto shall be deemed to constitute representations and
warranties of FIRSTIER under this Merger Agreement to the same extent
as if herein set forth in full. Anything disclosed in the FIRSTIER
Disclosure Letter or the attachments thereto shall be considered to
have been disclosed for purposes of all representations, warranties
and covenants under this Merger Agreement.
(u) FIRSTIER has taken all necessary action to exempt the Merger and other
transactions comtemplated by this Merger Agreement from Sections
21-2451 and 21-2452 of the Nebraska Shareholders Protection Act.
(v) FIRSTIER has taken all action so that the entering into of this Merger
Agreement and the consummation of the Merger, as contemplated hereby,
do not and will not result in the grant of any rights to any person
under the FIRSTIER Rights Agreement or enable or require the FIRSTIER
Rights to be exercised, distributed or triggered.
16. Action by FIRSTIER Pending Effective Time. FIRSTIER agrees that from the
date of this Merger Agreement until the earlier of the Effective Time or
the time that this Merger Agreement is terminated, except as stated in
FIRSTIER's Disclosure Letter and except with prior written permission of
BANC ONE, which, in any case covered by Section 16(d) hereof, shall not be
unreasonably withheld:
(a) Beginning with the second calendar quarter of 1993 and for each
succeeding calendar quarter thereafter prior to that calendar quarter
in which the Effective Time shall occur, FIRSTIER
(i) will not declare or pay any dividends or make any distributions on
shares of FIRSTIER Common, except cash dividends which shall be
equal to either: (a) $0.20 per share per quarter for each of the
second and third quarters of 1993 and $0.23 per quarter for the
fourth quarter of 1993 and for each subsequent quarter or (b) that
amount per share per quarter calculated by multiplying the amount
paid by BANC ONE on each share of BANC ONE Common for such quarter
times the Exchange Rate;
(ii) except as hereinbelow provided, will not declare or pay any
dividends or make any distributions in any amount on its
FIRSTIER Common in the quarter in which the Effective Time shall
occur and in which the shareholders of FIRSTIER Common are
entitled to receive regular quarterly dividends on the shares of
BANC ONE Common into which the shares of FIRSTIER Common have
been converted. It is the intent of this part (ii) to provide
that the holders of FIRSTIER Common will receive either the
payment of cash dividends on their shares of FIRSTIER Common or
the payment of cash dividends as the holders of shares of BANC
ONE Common received in exchange for the shares of FIRSTIER
Common for the calendar quarter during which the Effective Time
shall occur, but will not receive and will not become entitled
to receive for the same calendar quarter both the payment of a
cash dividend as shareholders of FIRSTIER and the payment of a
cash dividend as the holders of the shares of BANC ONE Common
received in exchange for the shares of FIRSTIER Common. In the
event that FIRSTIER does not declare and pay cash dividends on
its FIRSTIER Common in a particular calendar quarter because of
FIRSTIER's reasonable expectation that the Effective Time would
occur in said calendar quarter wherein the holders of FIRSTIER
Common would have become entitled to receive cash dividends for
such calendar quarter on the shares of BANC ONE Common to have
been exchanged for the shares of FIRSTIER Common, and the
Effective Time does not in fact occur effective in said calendar
quarter, then, as a result thereof, FIRSTIER shall be entitled
to declare and pay a cash dividend (within the limitations of
this Section 16) on said shares of FIRSTIER Common for said
calendar quarter as soon as reasonably practicable.
The declaration of any dividends within the limitations of this
paragraph shall remain within the discretion of the Board of Directors
of FIRSTIER.
(b) FIRSTIER will not issue, sell, grant any warrant, option, phantom
stock option, stock appreciation right or commitment of any kind for
or related to or acquire for value any shares of its capital stock or
otherwise effect any change in connection with its equity
capitalization except as related to (i) the option to be granted to
BANC ONE pursuant to Section 21 of this Merger Agreement, (ii) the
outstanding stock options which have been granted related to the
purchase of not more than 401,304 shares of FIRSTIER Common pursuant
to FIRSTIER's existing option and benefit plans and (iii) the grant of
options on or after May 19, 1993 for not more than 50,000 shares of
FIRSTIER Common and the issuance of shares by FIRSTIER Common upon the
exercise of such options pursuant to FIRSTIER's existing option and
benefit plans; provided, however, that the exercise price of any
options issued pursuant to subclause (iii) shall not be less than the
closing trade price of FIRSTIER Common as reported on the National
Association of Securities Dealers Automated Quotation System National
Market System as of the date of grant thereof.
(c) Except as otherwise set forth in or contemplated by this Merger
Agreement, FIRSTIER will carry on its businesses in substantially the
same manner as heretofore, keep in full force and effect insurance
comparable in amount and scope of coverage to that now maintained by
it and use its best efforts to maintain and preserve its business
organization intact.
(d) Neither FIRSTIER nor any Subsidiary will (i) enter into any new line
of business or incur or agree to incur any obligation or liability
except liabilities and obligations (including corporate debt
issuances) incurred in the ordinary course of business, except as may
be directed by any regulatory agency; (ii) except as may be directed
by any regulatory agency, change its or the Subsidiaries' lending,
investment, liability management and other material banking policies
in any material respect; (iii) except in the ordinary course of
business and consistent with prior practice, grant any general or
uniform increase in the rates of pay of employees; (iv) establish any
new employee benefit plan or amend any existing plan (except as
required by law) so as to increase by any significant amount the
benefits payable thereunder; (v) incur or commit to any capital
expenditures other than in the ordinary course of business (which will
in no event include the establishment of new branches and such other
facilities or any capital expenditures for any purpose); or (vi) merge
into, consolidate with or permit any other corporation to be merged or
consolidated with it or any of its Subsidiaries or acquire outside of
the ordinary course of business part of or all the assets or stock of
any other corporation or person; provided, however, that,
notwithstanding anything in this Agreement to the contrary, (A)
FIRSTIER may repay, refinance or take such other actions as it
reasonably deems to be necessary with respect to the contracts
referred to in Section 18(g); (B) FIRSTIER shall be permitted to
effect the merger of FirsTier Savings Bank, F.S.B. with and into
FirsTier Bank, National Association, Omaha; and (C) FIRSTIER may make
such payments to its principal corporate officers, its Chief Executive
Officer and/or its Chief Operating Officer as permitted pursuant to
the Benefits Agreement.
(e) FIRSTIER will not change its or its Subsidiaries' methods of
accounting in effect at December 31, 1992, except as required by
changes in generally accepted accounting principles as concurred in by
KPMG Peat Marwick, or change any of its methods of reporting income
and deductions for Federal income tax purposes from those employed in
the preparation of FIRSTIER's Federal income tax returns for the
taxable years ending December 31, 1991 and 1992, except as required by
changes in law.
(f) FIRSTIER will afford BANC ONE, its officers and other authorized
representatives, such access to all books, records, bank examination
reports, tax returns, leases, contracts and documents of FIRSTIER and
its Subsidiaries and will furnish to BANC ONE such information with
respect to the assets and business of FIRSTIER and its Subsidiaries as
BANC ONE may from time to time reasonably request in connection with
this Merger Agreement and the transactions contemplated hereby.
(g) FIRSTIER will promptly advise BANC ONE in writing of all material
corporate actions taken by the directors and shareholders of FIRSTIER,
furnish BANC ONE with copies of all monthly and other interim
financial statements of FIRSTIER as they become available, and keep
BANC ONE fully informed concerning all trends and developments which
in the opinion of FIRSTIER may have a Material Adverse Effect.
(h) FIRSTIER, its Subsidiaries and their respective officers, directors
and employees will not contract for or acquire, at the expense of
FIRSTIER or any of its Subsidiaries, a policy or policies providing
for insurance coverage for directors, officers and/or employees of
FIRSTIER and/or its Subsidiaries for any period subsequent to the
Effective Time for events occurring before or after the Effective
Time; provided, however, that FIRSTIER may renew, extend or replace
existing policies in the ordinary course consistent with past
practices for periods of not greater than one year.
17. Action by BANC ONE Pending Effective Time. BANC ONE agrees that from the
date of this Agreement until the Effective Time, except as stated in BANC
ONE's Disclosure Letter and except with prior written permission of
FIRSTIER:
(a) BANC ONE will not adopt or implement any amendment to its Articles of
Incorporation or any plan of reorganization which would affect in any
manner the terms and provisions of the shares of BANC ONE Common or
the rights of the holders of such shares or reclassify the BANC ONE
Common.
(b) Except as otherwise set forth in or contemplated by this Merger
Agreement, BANC ONE will carry on its businesses in substantially the
same manner as heretofore, keep in full force and effect insurance
comparable in amount and scope of coverage to that now maintained by
it and use its best efforts to maintain and preserve its business
organization intact.
(c) BANC ONE will not change its methods of accounting in effect at
December 31, 1992, except as required by changes in generally accepted
accounting principles as concurred in with Coopers & Lybrand, its
independent auditors, or change any of its methods of reporting income
and deductions for Federal income tax purposes from those employed in
the preparation of the Federal income tax returns of BANC ONE for the
taxable years ending December 31, 1991 and 1992, except as required by
changes in law.
(d) BANC ONE will afford FIRSTIER, its officers and other authorized
representatives, such access to all books, records, bank examination
reports, tax returns, leases, contracts and documents of BANC ONE and
its subsidiaries and will furnish to FIRSTIER such information with
respect to the assets, earnings and business of BANC ONE and its
subsidiaries as FIRSTIER may from time to time reasonably request in
connection with this Merger Agreement and the transactions
contemplated hereby.
(e) BANC ONE will not, and will cause its subsidiaries not to, make or
agree to make any acquisition, or take any other action, that
adversely affects its ability or the ability of BANC ONE BETA to
consummate the transactions contemplated by this Merger Agreement.
18. Conditions to Obligations of BANC ONE and BANC ONE BETA. The obligations
of BANC ONE and BANC ONE BETA to effect the Merger are subject, unless
waived by BANC ONE, to the satisfaction of the following conditions on or
prior to the Effective Time:
(a) There shall not have been any change in the consolidated financial
condition, aggregate net assets, shareholders' equity, business or
operating results of FIRSTIER and its Subsidiaries, taken as a whole,
from December 31, 1992 to the Effective Time that has had a Material
Adverse Effect.
(b) FIRSTIER shall not have paid cash dividends from December 31, 1992 to
the Effective Time except as permitted under this Merger Agreement.
(c) All representations by FIRSTIER contained in this Merger Agreement
shall be true at, or as of, the Effective Time as though such
representations were made at and as of said date, except for (i)
changes contemplated by the Merger Agreement, (ii) representations as
of a specified time other than the Effective Time, which shall be true
at such specified time (provided, however, that the representation of
FIRSTIER contained in Section 15(d) shall be true in all material
respects as applied to the Balance Sheet of FIRSTIER included in the
most recently available quarterly or annual report to FIRSTIER
shareholders and/or FIRSTIER's report to the Securities and Exchange
Commission on Form 10-Q or Form 10-K as of the close of the most
recent calendar quarter prior to the Effective Date and the reserve
for possible loan and lease losses included therein, as though each
reference to "December 31, 1992" in such section were a reference to
the last day of the most recent calendar quarter prior to the
Effective Date), and (iii) inaccuracies or breaches which do not,
individually or in the aggregate, have a Material Adverse Effect on
FIRSTIER and its Subsidiaries taken as a whole.
(d) BANC ONE shall have received the opinion of legal counsel (who may be
inside counsel) for FIRSTIER, dated as of the Effective Time,
substantially to the effect set forth in Exhibit D hereto, together
with a copy of the Articles of Incorporation, as amended, of FIRSTIER
certified by the Secretary of State of the State of Nebraska and a
copy of the charter documents, as amended, of each Subsidiary and, for
FIRSTIER and each Subsidiary, Certificates of Good Standing dated as a
date not more than 20 days prior to the Effective Time from the
Nebraska Secretary, Office of the Comptroller of the Currency or other
official, as appropriate.
(e) FIRSTIER shall have performed, in all material respects, all
agreements and conditions required by this Merger Agreement to be
performed and satisfied by it at or prior to the Effective Time.
(f) The aggregate of (i) the fractional share interests of BANC ONE Common
to be paid in cash pursuant to Section 7(e), and (ii) the shares, if
any, of BANC ONE Common to which holders of FIRSTIER Common would have
been entitled as of the Effective Time but who, as of the Effective
Time, have taken steps to perfect their rights as dissenting
shareholders pursuant to the provisions of applicable law, shall not
be more than 10% of the maximum aggregate number of shares of BANC ONE
Common which could be issued as a result of the Merger.
(g) The holders of all credit agreements on which FIRSTIER or any of the
Subsidiaries is the maker, issuer or guarantor and which contain
provisions which make the acquisition of FIRSTIER by or Merger into
another entity a condition of default or acceleration, which default
or acceleration would have a Material Adverse Effect, shall have
provided BANC ONE with a written waiver of all such provisions.
(h) As of the close of the most recent calendar quarter (or if the
Effective Time shall occur within 20 days following the close of a
calendar quarter, then as of the next preceding calendar quarter)
cumulative per share earnings reported by FIRSTIER since December 31,
1992 shall be greater than or equal to the amount calculated by
multiplying (x) $0.90 by (y) the number of full calendar quarters
which have passed since December 31, 1992 and for which earnings have
been reported by FIRSTIER as of such date. As used in this Section,
"reported" means reported on FIRSTIER's financial statements prepared
in accordance with generally accepted accounting principles applied on
a basis consistent with FIRSTIER's financial statements for the years
ended December 31, 1992 and 1991, as included in FIRSTIER's reports to
the Securities and Exchange Commission on Forms 10-K or FIRSTIER's
annual reports to shareholders, subject to any subsequent adjustments
required to be reported whether or not such adjustments have, as yet,
been reported with the following adjustments, if any, net of related
income tax savings and costs, which were reflected in net income for
the relevant period(s) added back into or deducted from net income for
the applicable period: (i) investment banking expenses, outside legal
and accounting fees, or other costs (including without limitation
severance, special bonuses and extraordinary restructuring costs) and
expenses associated with or resulting from the Merger; (ii) gains or
losses on sales of assets outside of the ordinary course of business;
(iii) any other expenses upon which BANC ONE and FIRSTIER shall
mutually agree; and (iv) the effect of any changes in accounting
principles required to be adopted by FIRSTIER by any regulatory
authority or under generally accepted accounting principles.
(i) The total number of shares of FIRSTIER Common issued and outstanding
together with the total number of shares of FIRSTIER Common related to
outstanding and unexercised options related to FIRSTIER Common, not
including the option to BANC ONE provided for in Section 21 of this
Merger Agreement, shall not be more than 11,915,000 shares.
(j) FIRSTIER shall have furnished BANC ONE a certificate, signed on its
behalf by the Chairman or President and the Secretary or an Assistant
Secretary of FIRSTIER and dated as of the Effective Time, certifying
as to the form of and adoption of resolutions of the Board and
shareholders of FIRSTIER approving the Merger Agreement and the
Merger, respectively, and to the effect that the conditions described
in Paragraphs (a), (b), (c), (e), (g), (h) and (i) of this Section 18
have been satisfied.
(k) Coopers & Lybrand shall have issued its written opinion, dated as of
the Effective Time, satisfactory, in good faith, to BANC ONE, advising
that the transaction herein contemplated may be properly accounted for
as a pooling-of-interests; provided, however, that this condition
shall be deemed to have been waived by BANC ONE if the inability to
obtain such opinion arises out of, or results directly or indirectly
from, any action taken by BANC ONE, BANC ONE BETA or any of their
respective subsidiaries contrary to that contemplated by this Merger
Agreement.
(l) The Employment Agreement between FIRSTIER and Jack R. McDonnell dated
June 20, 1989, as amended, and the Employment Agreement between
FIRSTIER and David A. Rismiller dated May 2, 1988 shall each have been
terminated as set forth in and on the basis authorized by the Benefits
Agreement.
19. Conditions to Obligations of FIRSTIER. The obligations of FIRSTIER to
effect the Merger are subject, unless waived by FIRSTIER, to the
satisfaction on or prior to the Effective Time of the following conditions:
(a) There shall not have been any change in the consolidated financial
condition, aggregate net assets, shareholders' equity, business, or
operating results of BANC ONE and its subsidiaries, taken as a whole,
from December 31, 1992 to the Effective Time that has had a Material
Adverse Effect.
(b) All representations by BANC ONE and BANC ONE ALPHA contained in this
Merger Agreement shall be true at, or as of, the Effective Time as
though such representations were made at and as of said date, except
for changes (i) contemplated by this Merger Agreement, (ii)
representations as of a specified time other than the Effective Time,
which shall be true in all material respects at such specified time
(provided, however, that the representation of BANC ONE contained in
Section 13(d) shall be true in all material respects as applied to the
Balance Sheet of BANC ONE included in the most recently available
quarterly or annual report to BANC ONE's shareholders and/or BANC
ONE's report to the Securities and Exchange Commission on Form 10-Q or
Form 10-K as of the close of the most recent calendar quarter prior to
the Effective Date and the reserve for possible loan and lease losses
included therein, as though each reference to "December 31, 1992" in
such section were a reference to the last day of the most recent
calendar quarter prior to the Effective Date), and (iii) inaccuracies
or breaches which do not, individually or in the aggregate, have a
Material Adverse Effect on BANC ONE and its subsidiaries taken as a
whole.
(c) FIRSTIER shall have received the opinion of counsel for BANC ONE and
BANC ONE BETA, (i) on and dated the date on which the registration
statement described in Section 10(d) of this Merger Agreement shall
have become effective as described in Section 20(b) of this Merger
Agreement substantially to the effect of the three last paragraphs of
Exhibit E hereto and (ii) on and dated as of the Effective Time
substantially to the effect set forth in Exhibit E hereto, together
with copies of the Articles of Incorporation of each of BANC ONE and
BANC ONE BETA certified by the Secretary of State of the State of Ohio
and copies of such other charter documents and Certificates of Good
Standing of BANC ONE and BANC ONE BETA dated as of a date not more
than 20 days prior to the day of the Effective Time from the Ohio
Secretary of State as FIRSTIER shall reasonably require.
(d) BANC ONE and BANC ONE BETA shall have performed, in all material
respects, all agreements and conditions required by this Merger
Agreement to be performed and satisfied by it at or prior to the
Effective Time.
(e) As of the close of the most recent calendar quarter (or if the
Effective Time shall occur within 20 days following the close of a
calendar quarter, then as of the close of the next preceding calendar
quarter) cumulative per share earnings reported by BANC ONE since
December 31, 1992 shall be greater than or equal to the amount
calculated by multiplying (x) $0.96 by (y) the number of full calendar
quarters which have passed since December 31, 1992 and for which
earnings have been reported by BANC ONE as of such date, times (z)
0.9. As used in this Section, "reported" means reported on BANC ONE's
consolidated financial statements prepared in accordance with
generally accepted accounting principles applied on a basis consistent
with BANC ONE's consolidated financial statements for the years ended
December 31, 1992 and 1991, as included in BANC ONE's reports to the
Securities and Exchange Commission on Forms 10-K or BANC ONE's annual
reports to shareholders subject to any subsequent adjustments required
to be reported to the Securities and Exchange Commission whether or
not such adjustments have, as yet, been reported with the effect of
any changes in accounting principles required to be adopted by BANC
ONE by any regulatory authority or under generally accepted accounting
principles, if any, net of related income tax savings and costs, which
were reflected in net income for the relevant period(s) added back
into or deducted from net income for the relevant period(s).
(f) FIRSTIER shall have received an opinion from Morgan Stanley & Co.
dated as of a date not more than five days prior to the date of the
Proxy Statement, to the effect that, in the opinion of such firm, the
Exchange Rate is fair to the holders of FIRSTIER Common and such
opinion shall not have been withdrawn prior to the Effective Time.
(g) BANC ONE shall have furnished FIRSTIER a certificate, signed by the
Chairman or President or an Executive Vice President and by the
Secretary or Assistant Secretary of BANC ONE and dated as of the
Effective Time certifying as to the form of and adoption of the
resolution of the Board of BANC ONE approving the Merger Agreement and
the Merger, and to the effect that the conditions described in
Paragraphs (a), (b), (d), and (e) of this Section 19 have been
satisfied as to it.
(h) The shares of BANC ONE Common to be issued to the holders of FIRSTIER
Common shall have been approved for listing on the NYSE.
20. Conditions to Obligations of All Parties. In addition to the provisions of
Sections 18 and 19 hereof, the obligations of BANC ONE and FIRSTIER to
effect the Merger shall be subject to the satisfaction of the following
conditions on or prior to the Effective Time:
(a) The parties hereto shall have received all necessary approvals of
governmental agencies and authorities of the transactions contemplated
by this Merger Agreement and each of such approvals shall remain in
full force and effect at the Effective Time. BANC ONE shall notify
FIRSTIER promptly upon receipt of all necessary governmental
approvals. At the Effective Time, (i) no party hereto shall be
subject to any order, decree or injunction of a court or governmental
agency of competent jurisdiction which enjoins or prohibits the
consummation of the Merger; and (ii) no statute, rule, regulation,
order, injunction or decree shall have been enacted, entered,
promulgated or enforced by any governmental authority which prohibits
or makes illegal consummation of the Merger.
(b) The registration statement required to be filed by BANC ONE pursuant
to Section 10(d) of this Merger Agreement shall have become effective
by an order of the Securities and Exchange Commission, the shares of
BANC ONE Common to be exchanged in the Merger shall have been
qualified or exempted under all applicable state securities laws, and
there shall have been no stop order issued or threatened by the
Securities and Exchange Commission that suspends or would suspend the
effectiveness of the registration statement, and no proceeding by the
Securities and Exchange Commission shall have been commenced, pending
or overtly threatened for such purpose and the BANC ONE Common to be
issued in the Merger will be authorized for trading on the NYSE.
(c) This Merger Agreement and the Merger shall have been duly approved and
adopted by the requisite affirmative vote of the shareholders of
FIRSTIER.
(d) Sullivan & Cromwell shall have issued its written opinion, dated as of
the day of the Effective Time, satisfactory to FIRSTIER and BANC ONE,
respectively, substantially to the effect set forth in clauses (a)
through (e) of Section 12 of this Merger Agreement and there shall
exist as of, at or immediately prior to the Effective Time, no facts
or circumstances which would render such opinion inapplicable in any
respect to the transactions to be consummated hereunder.
21. Option to Purchase
Prior to April 21, 1993, FIRSTIER shall grant to BANC ONE an option to
purchase shares of FIRSTIER Common in substantially the form of Exhibit F
and shall execute and deliver to BANC ONE an option agreement in
substantially the form of said Exhibit F.
22. Indemnification.
(a) In the event of any threatened or actual claim, action, suit,
proceeding or investigation, whether formal or informal and whether
civil, administrative or criminal, including, without limitation, any
such claim, action, suit, proceeding or investigation in which any
person who is now, or has been at any time prior to the date hereof,
or who becomes prior to the Effective Time, a director, officer,
employee, fiduciary or agent of FIRSTIER or any of its Subsidiaries
(the "Indemnified Parties") is, or is threatened to be, made a party
or as a witness, based in whole or in part on, or arising in whole or
in part out of, or pertaining to, this Merger Agreement or any of the
transactions contemplated hereby, whether in any case asserted or
arising before or after the Effective Time, the parties hereto agree
to cooperate and use their reasonable best efforts to defend against
and respond to such claim, action, suit, proceedings or
investigation. It is understood and agreed that, provided that and
conditioned upon the Merger becoming effective, BANC ONE shall
indemnify and hold harmless, as and to the fullest extent permitted by
applicable law, each Indemnified Party against any and all losses,
claims, damages, liabilities, costs, expenses (including attorneys'
fees and expenses), judgments and fines, and amounts paid in
settlement, in connection with any such threatened or actual claim,
action, suit, proceedings or investigation, and in the event of any
such threatened or actual claim, action, suit, proceedings or
investigation (whether asserted or arising before or after the
Effective Time), (i) BANC ONE shall promptly pay expenses (including
attorney's fees and expenses) in advance of the final disposition of
any claim, suit, proceedings or investigation to each Indemnified
Party to the fullest extent permitted by applicable law, and (ii) BANC
ONE shall use its reasonable best efforts to assist in the vigorous
defense of any such matter; provided that BANC ONE shall not be liable
for any settlement effected without its prior written consent (which
consent shall not be unreasonably withheld); provided, however, that
if BANC ONE brings an action or proceeding against an Indemnified
Party, such Indemnified Party shall not be entitled to indemnity under
this paragraph for losses, claims, damages, liabilities, costs,
expenses, judgments, fines or amounts incurred by such Indemnified
Party in connection with such action or proceeding to the extent it is
finally adjudicated in such action or proceeding that such losses,
claims, damages, liabilities, costs, expenses, judgments, fines or
amounts arise out of or relate to the fraud, bad faith and/or reckless
disregard of such Indemnified Party. Any Indemnified Party wishing to
claim indemnification under this Section 22(a) shall, upon learning of
any such claim, action, suit, proceedings or investigation, notify
BANC ONE thereof, provided that the failure so to notify shall not
affect the obligations of BANC ONE under this Section 22(a) except to
the extent such failure materially prejudices it.
(b) BANC ONE shall insure that all rights to indemnification and all
limitations of liability existing in favor of the Indemnified Parties
as provided in FIRSTIER's Articles of Incorporation and By-laws or
similar governing documents of any of its Subsidiaries, as in effect
as of April 1, 1993, or allowed under applicable law as in effect as
of the date hereof or as amended applicable to a time prior to the
Effective Time, with respect to claims or liabilities arising from
facts or events existing or occurring prior to the Effective Time
shall survive the Merger and shall continue in full force and effect,
without any amendment thereto, for a period of not less than six (6)
years from the Effective Time; provided, however, that all rights to
indemnification in respect of any claim asserted or made within such
period shall continue until the final disposition of such claim.
(c) BANC ONE shall, as soon as practicable following the Effective Time,
enter into agreements with directors and executive officers of
FIRSTIER and its Subsidiaries setting forth the indemnification rights
provided by BANC ONE to such persons. Except as provided in
paragraphs (a) and (b) of this Section 22 and in such indemnification
agreements, the directors, officers and employees of FIRSTIER and its
Subsidiaries from and after the Effective Time shall be entitled to
indemnification rights, having prospective application only, that are
comparable to those provided to directors, officers and employees of
BANC ONE and its subsidiaries generally. From and after the Effective
Time, the directors, officers and employees of FIRSTIER and its
Subsidiaries, except for the indemnification rights set forth in
paragraphs (a) and (b) of this Section 22, shall have indemnification
rights having prospective application only. These prospective
indemnification rights shall consist of (i) such rights to which
directors, officers and employees are entitled under the provisions of
the Articles of Incorporation, or similar governing documents, of the
Surviving Corporation and its subsidiaries, as in effect from time to
time after the Effective Time, as applicable, and provisions of
applicable law as in effect from time to time after the Effective Time
and (ii) those indemnification rights set forth in agreements between
BANC ONE and the directors and executive officers of FIRSTIER and its
Subsidiaries. Such agreements, which shall be executed as soon as
practicable following the Effective Time, shall provide certain
indemnification rights that are comparable to those provided to
directors, officers and employees of BANC ONE and its subsidiaries
generally, but which rights may be greater or lesser than the
indemnification rights available in clause (i) above.
(d) The obligations of BANC ONE provided under paragraphs (a) and (b) this
Section 22 are intended to be the joint and several obligations of
BANC ONE and the Surviving Corporation and to benefit, and be
enforceable against BANC ONE and the Surviving Corporation directly
by, the Indemnified Parties, and shall be binding on all respective
successors and permitted assigns of BANC ONE and the Surviving
Corporation.
(e) In the event BANC ONE or the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or
entity of such consolidation or merger, or (ii) transfers or conveys
all or substantially all of its properties and assets to any person,
then, and in each such case, proper provision shall be made so that
the successors and assigns of BANC ONE or the Surviving Corporation,
as the case may be, assume the obligations set forth in this Section
22.
23. Non-Survival of Representations and Warranties. The respective
representations and warranties of FIRSTIER, BANC ONE and BANC ONE BETA
contained in this Merger Agreement shall not survive the Effective Time.
24. Governing Law. This Merger Agreement shall be construed and interpreted
according to the applicable laws of the State of Nebraska, except as the
laws of the State of Ohio are expressly applicable to the Merger.
25. Assignment. This Merger Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Merger
Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned by any of the parties hereto without the prior written consent
of the other parties.
26. Satisfaction of Conditions; Termination.
(a) BANC ONE and BANC ONE BETA agree to use their best efforts to obtain
satisfaction of the conditions of this Merger Agreement insofar as
they relate to BANC ONE and BANC ONE BETA, and FIRSTIER agrees to use
its best efforts to obtain the satisfaction of the conditions of this
Merger Agreement insofar as they relate to FIRSTIER, and in each case
as soon as possible.
(b) This Merger Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of the Merger by the
shareholders of BANC ONE BETA or by FIRSTIER's shareholders, upon the
occurrence of any of the following by written notice from BANC ONE to
FIRSTIER (authorized by the Board of Directors of BANC ONE), or by
written notice from FIRSTIER to BANC ONE (authorized by the Board of
Directors of FIRSTIER), as the case may be:
(i) If any material condition to the obligations of BANC ONE and/or
BANC ONE BETA set forth in Section 18 or 20 is not substantially
satisfied at the time or times contemplated thereby and such
condition is not waived by BANC ONE or if any material condition
to the obligations of FIRSTIER set forth in Section 19 or 20 is
not substantially satisfied at the time or times contemplated
thereby and such condition is not waived by FIRSTIER, each party's
right to terminate under this Section 26 (b)(i) shall relate only
to conditions to that party's obligations;
(ii) In the event of a material breach by the other of any
representation, warranty, condition or agreement contained in
this Merger Agreement that is not cured within 30 days of the
time that written notice of such breach is received by such
other party from the party giving notice; or
(iii) If the Merger shall not have been consummated on or before June
1, 1994.
(c) In the event that the pre-acquisition investigation and review
described in Section 10(o) of this Merger Agreement discloses matters
which are either (i) inconsistent in any material respect with any of
the representations and warranties of FIRSTIER contained in this
Agreement or (ii) in the reasonable judgment of the Board of Directors
of BANC ONE, either are (x) of such significance as to materially and
adversely affect the financial condition or the results of operations
of FIRSTIER and its Subsidiaries on a consolidated basis or (y)
deviate materially and adversely from FIRSTIER's audited financial
statements for the year ended December 31, 1992, BANC ONE may elect to
terminate this Merger Agreement by giving written notice of
termination to FIRSTIER within seven days of the conclusion of such
pre-acquisition investigation.
(d) In the event that the BANC ONE Average Price during the Valuation
Period (as those terms are defined in Section 7(c) of this Merger
Agreement) is less than $52.00 per share, FIRSTIER, by action of its
Board of Directors, may elect to terminate this Merger Agreement,
whether before or after approval of the Merger by the shareholders of
BANC ONE BETA or by FIRSTIER's shareholders, by giving written notice
of such election to BANC ONE within two NYSE trading days after such
Valuation Period, which notice shall include FIRSTIER's payment to
BANC ONE by cashier's or certified check in the amount of $1,000,000
as liquidated damages. Upon receipt of such notice and check, BANC
ONE may, at its sole option:
(i) nullify such election to terminate by returning the check to
FIRSTIER and giving written notice to FIRSTIER, within two NYSE
trading days of BANC ONE's receipt of FIRSTIER's notice, that it
will modify the Exchange Rate, as otherwise set forth in Section 7
of this Agreement, by increasing such Exchange Rate to that number
of shares of BANC ONE Common, carried to three decimal places,
which when multiplied by the BANC ONE Average Price during the
Valuation Period, will equal $52.00 (the "Minimum Price"); or
(ii) accept such termination by giving written notice to FIRSTIER of
such acceptance within two NYSE trading days of BANC ONE's
receipt of FIRSTIER's notice. In the event of such acceptance
of termination, this Merger Agreement shall be terminated and
BANC ONE shall be entitled to negotiate the check for $1,000,000
and retain such sum as liquidated damages.
If BANC ONE declares a stock dividend or effects a reclassification,
recapitalization, split-up, combination or subdivision of its common
stock between the date hereof and the "Ex-Dividend Date" (as
hereinafter defined) established for the shares being so divided,
diluted or otherwise affected which is prior to any portion of the
Valuation Period, appropriate adjustment will be made in the Minimum
Price. The "Ex-Dividend Date" is that date established by the NYSE
for such distributions.
Notwithstanding the potential that FIRSTIER shall be required to pay
liquidated damages to BANC ONE, as set forth in this Section 26(d), a
termination resulting from FIRSTIER's election under this Section
26(d) shall otherwise be deemed to have been a termination by mutual
consent of the parties.
(e) This Merger Agreement may be terminated and abandoned (whether before
or after approval of the Merger by the shareholders of BANC ONE BETA
or by FIRSTIER's shareholders) by mutual written consent of FIRSTIER,
BANC ONE BETA and BANC ONE authorized by their respective Boards of
Directors.
(f) In the event of termination of this Merger Agreement (i) caused
otherwise than by a willful breach of this Merger Agreement by any of
the parties hereto, (ii) pursuant to Section 26(c), or (iii) pursuant
to Section 26(d), this Merger Agreement shall cease and terminate, the
acquisition of FIRSTIER as provided herein shall not be consummated,
and none of BANC ONE, BANC ONE BETA nor FIRSTIER shall have any
liability to any other party under this Merger Agreement of any nature
whatever, except for BANC ONE's obligations related to the printing of
the proxy solicitation materials, including any liability for damages,
provided, however, that the duties of the parties with respect to
confidential information as set forth in Section 10(f) shall survive
any such termination. If the Merger is not consummated as the result
of termination of this Merger Agreement caused otherwise than by
willful breach of a party hereto, BANC ONE, BANC ONE BETA and FIRSTIER
each shall pay its own fees and expenses incident to the negotiation,
preparation and execution of this Merger Agreement, the respective
shareholders' meetings and actions of the parties and all other acts
incidental to, contemplated by or in pursuance of the transactions
contemplated by this Merger Agreement, including fees and expenses of
their respective counsel, accountants and other experts and advisors.
(g) If termination of this Merger Agreement shall be judicially determined
to have been caused by willful breach of this Merger Agreement, then,
in addition to other remedies at law or equity for breach of this
Merger Agreement, the party so found to have willfully breached this
Merger Agreement shall indemnify the other parties for their
respective costs, fees and expenses of their counsel, accountants and
other experts and advisors as well as fees and expenses incident to
negotiation, preparation and execution of this Merger Agreement and
related documentation and their shareholders' meetings and consents.
27. Waivers; Amendments. Any of the provisions of this Merger Agreement may be
waived at any time by the party which is, or the shareholders of which are,
entitled to the benefit thereof, provided, however, such waiver, if
material to FIRSTIER or its shareholders, may be made only following due
authorization by the Board of Directors of FIRSTIER. This Merger Agreement
may be amended or modified in whole or in part by an agreement in writing
executed in the same manner (but not necessarily by the same persons) as
this Merger Agreement and which makes reference to this Merger Agreement,
provided, however, such amendment or modification may be made only
following due authorization by the respective Boards of Directors of
FIRSTIER, BANC ONE BETA and BANC ONE; provided, further, however, that
after a favorable vote by the shareholders of FIRSTIER any such action
shall be taken by FIRSTIER only if, in the opinion of its Board of
Directors, such amendment or modification will not have any material
adverse effect on the benefits intended under this Merger Agreement for the
shareholders of FIRSTIER and will not require resolicitation of any proxies
from such shareholders.
28. Entire Agreement. Subject to the exceptions noted in the next following
sentence, this Merger Agreement supersedes any other agreement (other than
the Confidentiality Agreement), whether written or oral, that may have been
made or entered into by FIRSTIER, BANC ONE BETA and BANC ONE or by any
officer or officers of such parties relating to the acquisition of the
business or the capital stock of FIRSTIER and/or its Subsidiaries by BANC
ONE or BANC ONE BETA. Except for the BANC ONE Disclosure Letter and any
attachments thereto, the FIRSTIER Disclosure Letter and any attachments
thereto, and the Benefits Agreement addressing benefit plans and policies,
this Merger Agreement and the exhibits hereto constitute the entire
agreement by the parties, and there are no agreements or commitments except
as set forth herein and therein.
29. Captions; Counterparts. The captions in this Merger Agreement are for
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Merger Agreement.
This Merger Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument.
30. Materiality. Unless the context otherwise requires, any reference in this
Merger Agreement to "material" or "materiality" with respect to any party
shall be deemed to be with respect to such party and its subsidiaries,
taken as a whole.
31. Notices. All notices and other communications hereunder may be made by
mail, hand-delivery or by courier service. If notices and other
communications are made by nationally recognized overnight courier service
for overnight delivery, such notice shall be deemed to have been given one
business day after being forwarded to such a nationally recognized
overnight courier service for overnight delivery. All notices and other
communications hereunder given to any party shall be communicated to the
remaining party to this Merger Agreement by mail or by hand-delivery in the
same manner as herein provided.
(a) If to BANC ONE, to:
BANC ONE CORPORATION
Attention of: Chief Executive Officer
100 East Broad Street
Columbus, Ohio 43271
With a copy to:
BANC ONE CORPORATION
Attention of: Roman J. Gerber
General Counsel
100 East Broad Street
Columbus, Ohio 43271
(b) If to FIRSTIER, to:
FirsTier Financial Inc.
Attention of: David A. Rismiller
1700 Farnam Street
Omaha, Nebraska 68103-0443
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention of: H. Rodgin Cohen
(c) If to BANC ONE BETA, to:
BANC ONE BETA CORPORATION
Attention of: Roman J. Gerber
Chairman
100 East Broad Street
Columbus, Ohio 43271
IN WITNESS WHEREOF, this Merger Agreement has been executed the day and year
first above written.
BANC ONE CORPORATION
ATTEST:
ROMAN J. GERBER By: WILLIAM P. BOARDMAN
Roman J. Gerber William P. Boardman
Secretary Executive Vice President
FIRSTIER FINANCIAL, INC.
ATTEST:
THOMAS B. FISCHER By: DAVID A. RISMILLER
Thomas B. Fischer David A. Rismiller
Secretary Chief Executive Officer
BANC ONE BETA CORPORATION
ATTEST:
CHARLES F. ANDREWS By: ROMAN J. GERBER
Charles F. Andrews Roman J. Gerber
Secretary Chairman
EXHIBITS TO AGREEMENT AND PLAN OF MERGER
Exhibit A - FIRSTIER Subsidiaries List
Exhibit B - Form of Plan of Merger
Exhibit C - Form of Undertaking by Affiliates
Exhibit D - Opinion of Counsel for FIRSTIER
Exhibit E - Opinion of Counsel for BANC ONE
and BANC ONE BETA
Exhibit F - Option Agreement
EXHIBIT A
FIRSTIER SUBSIDIARIES LIST
Other
Activities for
Incorporated Activities Which Regulatory
Name Under Conducted Approval Obtained
FirsTier Bank, N.A. -- Banking Services None
Omaha
FirsTier Bank, N.A. -- Banking Services None
Lincoln
FirsTier Bank, N.A. -- Banking Services None
Scottsbluff
FirsTier Bank, N.A. -- Banking Services None
Norfolk
FirsTier Savings Bank, -- Banking & Thrift None
FSB Services
FirsTier Insurance Inc. Nebraska Law Credit Related None
Insurance Services
FirsTier Securities Nebraska Law Brokerage Services None
FirsTier Data Services, Nebraska Law Data Processing & None
Inc. Data Transmission
FirsTier Mortgage Co. Nebraska Law Mortgage Banking None
Asset Recovery Co. Nebraska Law Collections None
FirsTier Leasing Co. Nebraska Law Leasing Personal None
Property
Wyoming Trust & Wyoming Law Trust Services None
Management
EXHIBIT B
FORM OF PLAN OF MERGER
This Plan of Merger dated as of April 19, 1993 sets forth certain of the terms
relating to the merger (the "Merger") of Banc One Beta Corporation, an Ohio
corporation ("BANC ONE BETA") and FIRSTIER FINANCIAL, INC., a Nebraska
corporation ("FIRSTIER");
1. Merger and the Surviving Corporation.
(a) Subject to the terms and conditions of the Agreement and Plan of
Merger dated as of April 19, 1993 (the "Merger Agreement") among
FIRSTIER, BANC ONE BETA and BANC ONE CORPORATION, an Ohio corporation
("BANC ONE") and the sole shareholder of BANC ONE BETA, BANC ONE BETA
shall be merged with and into FIRSTIER (which shall be the surviving
corporation in the Merger) in accordance with provisions of the
Nebraska Business Corporation Act (the "Nebraska BCA"). The Merger
shall become effective upon the issuance by the Secretary of State of
the State of Nebraska of articles of merger with respect thereto. For
purposes hereof, the term "Effective Time" shall mean the time when
such articles of merger are issued by the Secretary of State of the
State of Nebraska, and the term "Surviving Corporation" shall mean
FIRSTIER as the corporation surviving the Merger.
(b) At the Effective Time, by virtue of the Merger, the Surviving
Corporation shall have all the rights, privileges, immunities and
powers, and shall be subject to all the duties and liabilities, of a
corporation organized under the Nebraska BCA, and the Surviving
Corporation shall thereupon and thereafter possess all the rights,
privileges, immunities, and franchises, of a public as well as of a
private nature, of each of BANC ONE BETA and FIRSTIER; and all
property, real, personal, and mixed, and all debts due on whatever
account, and all other choses in action, and all and every other
interest, of or belonging to or due to each of BANC ONE BETA and
FIRSTIER, shall be taken and deemed to be transferred to and vested in
the Surviving Corporation without further act or deed; and the title
to any real estate, or any interest therein, vested in either BANC ONE
BETA or FIRSTIER shall not revert or be in any way impaired by reason
of the Merger, and the Surviving Corporation shall be responsible and
liable for all the liabilities and obligations of each of BANC ONE
BETA and FIRSTIER, all with the full effect provided for in the
Nebraska BCA.
(c) The Surviving Corporation shall be governed by the laws of the State
of Nebraska. The Articles of Incorporation of FIRSTIER in effect as
of the Effective Time shall be the Articles of Incorporation of the
Surviving Corporation, and the By-Laws of FIRSTIER in effect as of the
Effective Time shall be the By-Laws of the Surviving Corporation,
except that Article I and Article V of such Articles of Incorporation
shall be amended, effective as of the Effective Time, to read in their
entirety as follows:
ARTICLE I
Name
The name of the Corporation is BANC ONE NEBRASKA CORPORATION.
ARTICLE V
Authorized Shares
The total number of shares which the Corporation shall have authority
to issue is 500 shares of Common Stock with par value of $1.00 per
share. Each issued and outstanding share of Common Stock will entitle
the holder thereof to one vote, except as may otherwise be provided by
statute.
(d) The directors of FIRSTIER in office immediately prior to the Effective
Time shall be the directors of the Surviving Corporation at and after
the Effective Time, until the next annual meeting of shareholders at
which their respective successors are elected and qualified in
accordance with the By-laws of the Surviving Corporation.
(e) The officers of FIRSTIER in office immediately prior to the Effective
Time shall be the officers of the Surviving Corporation at and after
the Effective Time, holding the offices in the Surviving Corporation
which they held in FIRSTIER immediately prior thereto, until their
successors are elected or appointed in accordance with the By-laws of
the Surviving Corporation and shall have duly qualified.
2. Conversion of Stock.
(a) At the Effective Time:
(i) Each share of FIRSTIER Common that is issued and outstanding
immediately prior to the Effective Time, except for shares of
FIRSTIER Common subject to the rights of a dissenting
shareholder, if any, shall thereupon and without further action
be converted into one share of BANC ONE Common subject, however,
to (i) the anti-dilution provisions of Section 2(d) of this
Merger Agreement, (ii) provisions set forth in Section 2(c) with
respect to fractional shares and (iii) the provisions set forth
in Section 2(e) (the "Exchange Rate").
(ii) The 500 shares of Common Stock of BANC ONE BETA issued and
outstanding immediately prior to the Effective Time shall,
thereupon and without further notice, continue to be issued and
outstanding shares of common stock of the Surviving Corporation.
(iii) Any shares of FIRSTIER Common held by FIRSTIER as treasury stock
immediately prior to the Effective Time shall be cancelled and
shall not represent capital stock of the Surviving Corporation
and shall not be exchanged for shares of BANC ONE Common.
(b) FIRSTIER's shareholders of record at the Effective Time, for the
shares of FIRSTIER Common then held by them, respectively, shall be
allocated and be entitled to receive (upon surrender of certificates
formerly representing shares of FIRSTIER Common for cancellation)
certificates for shares of BANC ONE Common as shall be equal to the
number of shares of FIRSTIER Common outstanding immediately prior to
the Effective Time multiplied by the Exchange Rate.
(c) No certificate for fractional shares of BANC ONE Common will be issued
by BANC ONE in connection with the exchange contemplated by the
Merger, but in lieu thereof, any holder of FIRSTIER Common shall, upon
surrender of the certificate or certificates representing such
FIRSTIER Common, be paid cash, without interest, by BANC ONE for such
fractional shares, if any, on the basis of the BANC ONE Average Price
(as hereinafter defined). The BANC ONE Average Price shall mean the
average of the closing prices of BANC ONE Common on the New York Stock
Exchange ("NYSE") during the Valuation Period (as hereinafter defined)
in The Wall Street Journal for NYSE Composite Transactions. The term
"Valuation Period" shall mean the ten consecutive NYSE trading days
ending on the sixth NYSE trading day immediately prior to the proposed
Effective Time, as designated by BANC ONE.
(d) If prior to the Effective Time, (i) FIRSTIER shall declare a stock
dividend or distribution upon or subdivide, split up, reclassify or
combine FIRSTIER Common or declare a dividend, or make a distribution,
on FIRSTIER Common in any security convertible into FIRSTIER Common or
(ii) BANC ONE shall declare a stock dividend or distribution upon or
subdivide, split up, reclassify or combine BANC ONE Common or declare
a dividend, or make a distribution, on BANC ONE Common in any security
convertible into BANC ONE Common, appropriate adjustment or
adjustments will be made in the Exchange Rate. If, prior to the
Effective Time, BANC ONE shall declare an extraordinary or special
cash dividend (which shall not include BANC ONE's quarterly cash
dividend) or a dividend other than a stock dividend or other
distribution for which an adjustment is made in the Exchange Rate
pursuant to clause (ii) of the preceding sentence, then, to the extent
such dividend is not paid or payable by BANC ONE to the holders of
FIRSTIER Common as of the Effective Time, the Exchange Rate shall be
adjusted (the "Adjusted Exchange Rate") to be equal to the quotient of
(x) the Exchange Rate (as adjusted pursuant to the first sentence of
this Section (d) as of the date of such calculation, if such
adjustment is applicable) multiplied by the average of the daily
reported closing prices of BANC ONE Common as reported on the NYSE for
the ten trading days prior to the day of the announcement of such
dividend by BANC ONE (the "announcement date"), divided by (y) the
average of the daily reported closing prices of BANC ONE Common as
reported on the NYSE for the ten trading days after the announcement
date.
(e) In the event that the BANC ONE Average Price during the Valuation
Period (as those terms are defined in this Plan of Merger) is less
than $52.00 per share, FIRSTIER, by action of its Board of Directors,
may elect to terminate this Plan of Merger, whether before or after
approval of the Merger by the shareholders of BANC ONE BETA or by
FIRSTIER's shareholders, by giving written notice of such election to
BANC ONE within two NYSE trading days after such Valuation Period,
which notice shall include FIRSTIER's payment to BANC ONE by cashier's
or certified check in the amount of $1,000,000 as liquidated damages.
Upon receipt of such notice and check, BANC ONE may, at its sole
option:
(i) nullify such election to terminate by returning the check to
FIRSTIER and giving written notice to FIRSTIER, within two NYSE
trading days of BANC ONE's receipt of FIRSTIER's notice, that it
will modify the Exchange Rate, as otherwise set forth in this
Plan of Merger, by increasing such Exchange Rate to that number
of shares of BANC ONE Common, carried to three decimal places,
which when multiplied by the BANC ONE Average Price during the
Valuation Period, will equal $52.00 (the "Minimum Price"); or
(ii) accept such termination by giving written notice to FIRSTIER of
such acceptance within two NYSE trading days of BANC ONE's
receipt of FIRSTIER's notice. In the event of such acceptance
of termination, this Plan of Merger shall be terminated and BANC
ONE shall be entitled to negotiate the check for $1,000,000 and
retain such sum as liquidated damages.
If BANC ONE declares a stock dividend or effects a reclassification,
recapitalization, split-up, combination or subdivision of its common
stock between the date hereof and the "Ex-Dividend Date" (as
hereinafter defined) established for the shares being so divided,
diluted or otherwise affected which is prior to any portion of the
Valuation Period, appropriate adjustment will be made in the Minimum
Price. The "Ex-Dividend Date" is that date established by the NYSE
for such distributions.
Notwithstanding the potential that FIRSTIER shall be required to pay
liquidated damages to BANC ONE, as set forth in this Section 2(e), a
termination resulting from FIRSTIER's election under this Section 2(e)
shall otherwise be deemed to have been a termination by mutual consent
of the parties.
3. Dissenting Shareholders. If any shareholders of FIRSTIER Common who do not
vote their shares in favor of the Merger are entitled to dissenters' rights
under the Nebraska BCA, and if any such shareholders perfect applicable
dissenters' rights, if any, such shareholders will be entitled to
dissenters or appraisal rights, if any, under the Nebraska BCA.
4. Surrender of Certificates.
(a) Prior to the Effective Time, BANC ONE shall appoint BANK ONE,
INDIANAPOLIS, N.A. to act as exchange agent in respect of the Merger
(said bank, in its capacity as such exchange agent, being hereinafter
called the "Exchange Agent").
(b) Promptly following the Effective Time, BANC ONE shall provide to
Exchange Agent shares of BANC ONE Common and funds necessary to pay
for the shares of FIRSTIER Common pursuant to Section 2.
(c) As soon as practicable after the Effective Time, and subject to the
provisions set forth above relating to fractional shares, BANC ONE
will, or will cause BANK ONE, INDIANAPOLIS, N.A., as Exchange Agent
for BANC ONE to, distribute to the former holders of FIRSTIER Common
(or their respective designees) in exchange for and upon surrender for
cancellation by such holders of a certificate or certificates formerly
representing shares of FIRSTIER Common, the certificate(s) for shares
of BANC ONE Common in accordance with the Exchange Rate. Each
certificate formerly representing FIRSTIER Common (other than
certificates representing shares of FIRSTIER Common subject to the
rights of dissenting shareholders) shall be deemed for all purposes to
evidence the ownership of the number of shares of BANC ONE Common into
which such shares have been converted pursuant to the Exchange Rate
except, however, that, until such surrender of a holder's certificate
or certificates formerly representing shares of FIRSTIER Common, the
holder thereof shall not be entitled to receive any dividend or other
payment or distribution payable to holders of BANC ONE Common. Upon
such surrender (or, in lieu of surrender, other provisions reasonably
satisfactory to BANC ONE as are made as set forth in the next
following paragraph), there shall be paid to the person entitled
thereto the aggregate amount of dividends or other payments or
distributions (in each case without interest) which became payable
after the Effective Time, to the extent not previously paid to such
person, on the whole shares of BANC ONE Common represented by the
certificates issued upon such surrender and exchange or in accordance
with such other provisions, as the case may be. For a period of
ninety (90) days following the Effective Time, former shareholders of
FIRSTIER shall be entitled to vote at any meeting of BANC ONE
shareholders the number of whole shares of BANC ONE Common into which
their respective shares of FIRSTIER Common are converted, regardless
of whether such holders have exchanged their certificates representing
such FIRSTIER Common for certificates representing BANC ONE Common in
accordance with this subparagraph (d). In addition, after the
Effective Time the holders of certificates formerly representing
shares of FIRSTIER Common shall cease to have rights with respect to
such shares (except such rights, if any, as holders of certificates
representing FIRSTIER Common may have as dissenting shareholders, if
any), and, except as aforesaid, their sole rights shall be to exchange
said certificates for shares of BANC ONE Common in accordance herewith.
Certificates formerly representing shares of FIRSTIER Common
surrendered for cancellation by each shareholder entitled to exchange
shares of FIRSTIER Common for shares of BANC ONE Common by reason of
the Merger shall be accompanied by such appropriate, executed letter
of transmittal as BANC ONE may reasonably require; provided, however,
that if there be delivered to BANC ONE by any person who is unable to
produce any such certificate formerly representing shares of FIRSTIER
Common for surrender (i) evidence to the reasonable satisfaction of
BANC ONE that any such certificate has been lost, wrongfully taken or
destroyed, and (ii) such security or indemnity as reasonably may be
requested by BANC ONE to save it harmless, and (iii) evidence to the
reasonable satisfaction of BANC ONE that such person is the owner of
the shares theretofore represented by each certificate claimed by him
to be lost, wrongfully taken or destroyed and that he is the person
who would be entitled to present each such certificate and to receive
shares of BANC ONE Common pursuant to this Merger Agreement, then BANC
ONE, in the absence of actual notice to it that any shares theretofore
represented by any such certificate have been acquired by a bona fide
purchaser, shall deliver to such person the certificate(s)
representing shares of BANC ONE Common (and any fractional share
payment) which such person would have been entitled to receive upon
surrender of each such lost, wrongfully taken or destroyed certificate
representing shares of FIRSTIER Common.
As soon as practicable after the Effective Time, and subject to the
provisions of Section 2 relating to fractional shares, BANC ONE, or
BANK ONE, INDIANAPOLIS, N.A., as Exchange Agent for BANC ONE, will
distribute to the former holders of FIRSTIER Common, in exchange for
and upon surrender for cancellation by such holders of a certificate
or certificates formerly representing shares of FIRSTIER Common, the
certificate(s) for shares of BANC ONE Common in accordance with the
Common Exchange Rate. Each certificate formerly representing FIRSTIER
Common (other than certificates representing shares of FIRSTIER Common
subject to the rights of dissenting shareholders, if any) shall be
deemed for all purposes to evidence the ownership of the number of
shares of BANC ONE Common and cash for fractional shares into which
such shares have been converted, except, however, and notwithstanding
the foregoing, that, until such surrender of the certificate or
certificates formerly representing shares of FIRSTIER Common, the
holder thereof shall not be entitled to receive any dividend or other
payment or distribution payable to holders of BANC ONE Common. Upon
such surrender (or in lieu of surrender other provisions reasonably
satisfactory to BANC ONE as are made as set forth in the next
following paragraph), there shall be paid to the person entitled
thereto the aggregate amount of dividends or other payments or
distributions (in each case without interest) which became payable
after the Effective Time on the whole shares of BANC ONE Common
represented by the certificates issued upon such surrender and
exchange or in accordance with such other provisions, as the case may
be. After the Effective Time, the holders of certificates formerly
representing shares of FIRSTIER Common shall cease to have rights with
respect to such shares (except such rights, if any, as they may have
as dissenting shareholders, if any), and except as aforesaid, their
sole rights shall be to exchange said certificates for shares of BANC
ONE Common and cash for fractional shares in accordance with this
Merger Agreement.
Certificates representing shares of FIRSTIER Common surrendered for
cancellation by each shareholder entitled to exchange shares of
FIRSTIER Common for shares of BANC ONE Common by reason of the Merger
shall be appropriately endorsed or accompanied by such appropriate
instruments of transfer as BANC ONE may reasonably require; provided,
however, that if there be delivered to BANC ONE by any person who is
unable to produce any such certificate formerly representing shares of
FIRSTIER Common for transfer (i) evidence to the reasonable
satisfaction of BANC ONE that any such certificate has been lost,
wrongfully taken or destroyed, (ii) such security or indemnity as
reasonably may be requested by BANC ONE to save it harmless, and (iii)
evidence to the reasonable satisfaction of BANC ONE that such person
is the owner of the shares theretofore represented by each certificate
claimed by him or her to be lost, wrongfully taken or destroyed and
that he or she is the person who would be entitled to present each
such certificate and to receive shares of BANC ONE Common pursuant to
this Merger Agreement, then BANC ONE, in the absence of actual notice
to it that any shares theretofore represented by any such certificate
have been acquired by a bona fide purchaser, shall deliver to such
person the certificate(s) representing shares of BANC ONE Common which
such person would have been entitled to receive upon surrender of each
such lost, wrongfully taken or destroyed certificate of FIRSTIER
Common.
EXHIBIT C
(FORM OF UNDERTAKING BY AFFILIATES)
UNDERTAKING OF AFFILIATE
, 199
In consideration and anticipation of the receipt by the undersigned of Common
Stock of BANC ONE CORPORATION ("BANC ONE") upon consummation of a proposed
merger (the "Merger") of FIRSTIER FINANCIAL, INC. ("FIRSTIER") and BANC ONE
BETA CORPORATION, a subsidiary of BANC ONE, pursuant to the terms of a certain
Agreement and Plan of Merger dated as of April 19, 1993, (the "Merger
Agreement"), and in view of the fact that the undersigned has, pursuant to the
Merger Agreement, been identified as a possible "affiliate" of FIRSTIER within
the meaning of Rules 144 and 145 ("Rule 144" and "Rule 145," respectively), as
amended, of the General Rules and Regulations under the Securities Act of 1933,
as amended (the "1933 Act"), the undersigned (the "Affiliate") represents and
undertakes as follows:
The Affiliate shall not offer, sell or otherwise dispose of or transfer any of
the shares of the Common Stock of BANC ONE to be received by him upon
consummation of the Merger, including shares of BANC ONE Common Stock acquired
by the Affiliate within the two year period following the Merger as a result of
the Affiliate's exercise of options on BANC ONE Common Stock acquired in
substitution for unexercised options on FIRSTIER Common Stock, (the "Shares"),
except the Affiliate may offer, sell or transfer the Shares (1) in a manner and
to the extent permitted by the applicable provisions of Rule 145, (2) pursuant
to an effective registration statement relating to the Shares under the 1933
Act, or (3) in a transaction which, in the opinion of counsel for the Affiliate
or as described in a "no-action" or interpretive letter from the staff of the
Securities and Exchange Commission, in each case reasonably satisfactory in
form and substance to BANC ONE, is exempt from the registration requirements of
the 1933 Act.
BANC ONE's transfer agents may be given appropriate instructions prohibiting
transfer of the Shares unless these provisions are complied with and the
certificate(s) for the Shares may bear a restrictive legend in substantially
the following form:
The shares represented by this certificate have been issued to the
registered holder as a result of a transaction to which Rule 145 under the
Securities Act of 1933, as amended (the "1933 Act") applies. The shares
represented by this certificate may not be sold, transferred or assigned,
and the issuer shall not be required to give effect to any attempted sale,
transfer or assignment, except pursuant to (i) a registration statement
then in effect under the 1933 Act, (ii) a transaction permitted by Rule 145
as to which the issuer has received evidence of compliance with the
provisions of said Rule 145 reasonably satisfactory to it or (iii) a
transaction which, in the opinion of counsel for the Affiliate or as
described in a 'no action' or interpretive letter from the staff of the
Securities and Exchange Commission, in each case reasonably satisfactory in
form and substance to the issuer, is exempt from the registration
requirements of the 1933 Act. The restrictions of this paragraph shall
become null and void and this paragraph shall have no effect on and
after .
The undersigned undertakes to take such action as shall be necessary to cause
the Shares to be received by the undersigned to be registered in a manner that
will allow for the placement of a restrictive legend on the certificate(s)
representing such Shares.
The undersigned further undertakes that, if it is necessary in order to
preserve pooling-of-interests accounting treatment, none of the Shares to be
received by the undersigned, directly or indirectly, will be sold or otherwise
disposed of during a period of time beginning with the effective date of the
Merger and ending with a date upon which financial results of at least 30 days
of post-merger combined operations have been first published by BANC ONE in
accordance with SEC Accounting Series Release No. 130 as amended by Release No.
135, provided that BANC ONE hereby agrees that such financial results will be
published not later than four months from the Merger.
I hereby acknowledge that pursuant to the provisions of Rules 144 and 145
certain other persons or entities related to me are, or may be, subject to the
foregoing restrictions on the resale of BANC ONE Common Stock received by them
pursuant to the Merger, which persons include (i) any of my relatives or my
spouse, or any relative of my spouse, who has the same home as me; (ii) any
trust or estate in which I or any of the persons specified in the preceding
clause collectively own ten percent (10%) or more of the total beneficial
interest, or of which I or any of such persons serve as trustee, executor, or
in any similar capacity; and (iii) any corporation or other organization (other
than BANC ONE or any of its affiliates) in which I or any of the persons
specified above are the beneficial owners, collectively, of ten percent (10%)
or more of the equity interest therein. I hereby further acknowledge that I
have advised any and all of such persons that they are, or may be, subject to
the provisions of said Rules 144 and 145, and I hereby represent that I will
use my reasonable best efforts to ensure that such persons comply with the
provisions of this letter and Rules 144 and 145, as applicable, upon the resale
of any Common Stock of BANC ONE.
IN WITNESS WHEREOF, the Affiliate has made this undertaking as of the day and
year first above written.
EXHIBIT D
(OPINION OF COUNSEL FOR FIRSTIER)
, 199
BANC ONE CORPORATION
100 East Broad Street
Columbus, Ohio 43271
Gentlemen:
I am general counsel to FIRSTIER FINANCIAL, INC., a Nebraska corporation and a
registered bank holding company ("FIRSTIER"), and have acted as counsel for
FIRSTIER in connection with the merger (the "Merger") of FIRSTIER with and into
BANC ONE BETA CORPORATION ("BANC ONE BETA"), a Nebraska corporation and a
wholly-owned subsidiary of BANC ONE CORPORATION ("BANC ONE"), pursuant to which
each of the issued and outstanding shares of FIRSTIER's Common Stock will be
converted into shares of BANC ONE Common Stock. The Merger is to be
consummated pursuant to the terms of an Agreement and Plan of Merger dated as
of April 19, 1993 ("Merger Agreement"), between BANC ONE BETA and FIRSTIER and
joined in by BANC ONE. This opinion is furnished to you pursuant to Section
18(d) of the Merger Agreement.
Except as otherwise indicated herein, capitalized terms used in this Opinion
Letter are defined in the Merger Agreement or the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991), respectively. In the
event of any inconsistency between the definition of any such term in the
Merger Agreement and the Accord, the definition set forth in the Accord shall
govern.
This Opinion Letter is governed by, and is to be interpreted in accordance
with, the Accord. As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage, and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter should be read in conjunction therewith.
The law covered by the opinions expressed herein is limited solely to the laws
of the State of Nebraska and the Federal Laws of the United States generally.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Merger Agreement is enforceable against FIRSTIER.
2. Except as set forth in the FIRSTIER Disclosure Letter, the execution and
delivery by FIRSTIER of, and the performance by FIRSTIER of its agreements
in, the Merger Agreement do not (a) violate the Constituent Documents of
FIRSTIER; (b) violate applicable provisions of statutory law or regulation;
(c) breach or otherwise violate any existing obligation of FIRSTIER under
any Court Orders of which we have knowledge; or (d) breach, or result in a
default under, any obligation of FIRSTIER under an Other Agreement of which
I have actual knowledge.
The General Qualifications apply to each of the opinions set forth above.
I am rendering this opinion solely for the benefit of BANC ONE and BANC ONE
BETA in connection with the transactions described in the Merger Agreement. It
may not be relied upon by any other person or for any other person, or quoted
or filed with any regulatory agency without our prior approval.
Very truly yours,
EXHIBIT E
(OPINION OF COUNSEL FOR BANC ONE CORPORATION AND
BANC ONE BETA CORPORATION)
, 199
FIRSTIER FINANCIAL, Inc.
1700 Farnam Street
Omaha, Nebraska 68103-0443
Attention: Chairman
Gentlemen:
I am counsel for BANC ONE CORPORATION, an Ohio corporation and a registered
bank holding company ("BANC ONE") and BANC ONE BETA CORPORATION ("BANC ONE
BETA"), an Ohio corporation and wholly owned subsidiary of BANC ONE, and have
acted as counsel for BANC ONE and BANC ONE BETA in connection with the merger
(the "Merger") of FIRSTIER FINANCIAL INC. ("FIRSTIER") and BANC ONE BETA
pursuant to which each of the issued and outstanding shares of FIRSTIER Common
will be converted into shares of BANC ONE Common. Such Merger is to be
consummated pursuant to the terms of an Agreement and Plan of Merger dated as
of April 19, 1993 ("Merger Agreement") between FIRSTIER and BANC ONE BETA and
joined in by BANC ONE. This opinion is furnished to you pursuant to Section
19(c) of the Merger Agreement.
Except as otherwise indicated herein, capitalized terms used in this Opinion
Letter are defined in the Merger Agreement or the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991), respectively. In the
event of any inconsistency between the definition of any such term in the
Merger Agreement and the Accord, the definition set forth in the Accord shall
govern.
This Opinion Letter is governed by, and is to be interpreted in accordance
with, the Accord. As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage, and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter should be read in conjunction therewith.
The law covered by the opinions expressed herein is limited solely to the laws
of the State of Ohio and the Federal Laws of the United States generally.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Merger Agreement is enforceable against BANC ONE.
2. The Merger Agreement is enforceable against BANC ONE BETA.
3. Except as set forth in the BANC ONE Disclosure Letter, the execution and
delivery by BANC ONE and BANC ONE BETA of, and the performance by BANC ONE
and BANC ONE BETA of their agreements in, the Merger Agreement do not (a)
violate the Constituent Documents of BANC ONE and BANC ONE BETA; (b)
violate applicable provisions of statutory law or regulation; (c) breach or
otherwise violate any existing obligation of BANC ONE and BANC ONE BETA
under any Court Orders of which I am aware; or (d) breach, or result in a
default under, any obligation of BANC ONE or BANC ONE BETA under an Other
Agreement of which I am aware.
I hereby confirm to you, pursuant to the requirements of Section 13(e) of the
Merger Agreement, that there are no actions or proceedings against BANC ONE or
any of its subsidiaries, pending or overtly threatened in writing, before any
court, governmental agency or arbitrator which (i) seek to affect the
enforceability of the Merger Agreement or (ii) come within the standard
established in the Merger Agreement for disclosure.
I have participated in the preparation of the Registration Statement on Form
S-4 (or other appropriate registration statement form) (No. ) of
BANC ONE ("Registration Statement"), and in rendering this opinion have limited
my review of the facts concerning the Registration Statement to discussions
with and inquiry of Directors, officers and employees of BANC ONE, and Coopers
& Lybrand, the independent accountants who examined certain of the financial
statements of BANC ONE included in the Registration Statement, and based
thereon and subject to the General Qualifications, I am of the opinion that
such Registration Statement, and the Prospectus included in the Registration
Statement (except as to financial statements, other financial data and any
information concerning FIRSTIER included therein, as to which I express no
opinion) at the time the Registration Statement became effective under the
Securities Act of 1933 (the "1933 Act") complied as to form in all material
respects with the 1933 Act and the rules and regulations of the Securities and
Exchange Commission thereunder.
I confirm that the Registration Statement has become effective under the 1933
Act, and to the best of my Actual Knowledge, 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 contemplated under the
1933 Act.
I have not checked the accuracy or completeness of, or otherwise verified, any
statement of fact contained in the Registration Statement and Prospectus.
Based on the participations, discussions and inquiries described above,
however, I have no reason to believe that the Registration Statement (except as
to financial statements, other financial data and any information concerning
FIRSTIER included therein, as to which no view is expressed) at the time it
became effective and as of the date of this letter contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (except as to financial statements, other
financial data and any information concerning FIRSTIER included therein, as to
which no view is expressed) at such times contained any untrue statement of a
material fact or omitted 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 or that since the effective date of the Registration
Statement, any event has occurred which should have been set forth in an
amendment or supplement to the Registration Statement or the Prospectus which
has not been set forth in such an amendment or supplement.
The General Qualifications apply to all of the opinions set forth above.
I am rendering this opinion solely for the benefit of FIRSTIER in connection
with the transactions described in the Merger Agreement. It may not be relied
upon by any other person or for any other person.
Very truly yours,
EXHIBIT F
Option Agreement
Option Agreement, dated as of April 20, 1993 (this "Agreement"), by and between
FirsTier Financial, Inc., a corporation organized under the laws of the State
of Nebraska ("FIRSTIER") and BANC ONE CORPORATION, a corporation organized
under the laws of the State of Ohio ("BANC ONE").
W I T N E S S E T H :
WHEREAS, FIRSTIER and Banc One Beta Corporation, an Ohio corporation and a
wholly owned subsidiary of BANC ONE ("BANC ONE BETA"), together with BANC ONE,
have executed an Agreement and Plan of Merger dated April 19, 1993 (the "Merger
Agreement") providing for the merger of BANC ONE BETA with and into FIRSTIER
pursuant to which BANC ONE will acquire FIRSTIER as the surviving corporation;
WHEREAS, Section 21 of the Merger Agreement provides that FIRSTIER will
execute and deliver an Option Agreement, substantially in the form of this
Agreement, to BANC ONE prior to April 21, 1993;
NOW THEREFORE, in consideration of said Merger Agreement and their mutual
promises and obligations, the parties hereto adopt and make this Agreement as
follows:
1. FIRSTIER hereby grants to BANC ONE an irrevocable option (the "Option") to
purchase at the closing trade price of a share of the Common Stock, par
value of $5.00 per share, of FIRSTIER ("FIRSTIER Common"), on April 19,
1993, as reported on the National Association of Securities Dealers
Automated Quotation System National Market System, per share (the "Per
Share Price") in cash up to 2,281,000 authorized but unissued shares of
FIRSTIER Common (the "Optioned Shares"). The Option shall expire (such
event being referred to herein as the "Option Termination Event") if not
exercised as permitted under this Agreement prior to the earlier of (i) at
the time the merger of BANC ONE BETA into FIRSTIER becomes effective as set
forth and defined in Section 4 of the Merger Agreement (the "Effective
Time"), (ii) BANC ONE or FIRSTIER receiving written notice from the Board
of Governors of the Federal Reserve System (the "Board") or its staff to
the effect that the exercise of the Option pursuant to the terms of this
Agreement is not consistent with Section 3 of the Bank Holding Company Act
of 1956, as amended, (iii) termination of the Merger Agreement by BANC ONE
in accordance with the provisions of Section 26 of the Merger Agreement if
such termination occurs prior to the occurrence of an Initial Triggering
Event (as hereinafter defined), (iv) the first business day after the three
hundred and sixty-fifth calendar day following termination of the Merger
Agreement by BANC ONE in accordance with the provisions of Section 26
thereof, if such termination follows the occurrence of an Initial
Triggering Event, provided that the Option shall in all events expire not
later than 18 months after such Initial Triggering Event, (v) termination
of the Merger Agreement by FIRSTIER in accordance with the provisions of
Section 26 thereof, or (vi) termination of the Merger Agreement by mutual
consent of BANC ONE and FIRSTIER. If, in the case of (iv), the Option is
otherwise exercisable but cannot be exercised on such day solely because of
any injunction, order or similar restraint issued by a court of competent
jurisdiction, the Option shall expire on the twentieth business day after
such injunction, order or restraint shall have been dissolved or when such
injunction, order or restraint shall have become permanent and no longer
subject to appeal, as the case may be.
2. Provided that (i) no preliminary or permanent injunction or other order
issued by any Federal or state court of competent jurisdiction in the
United States prohibiting the exercise of the Option or the delivery of the
Optioned Shares shall be in effect and (ii) any such exercise shall
otherwise be subject to compliance with applicable law, BANC ONE may
exercise the Option in whole or in part at any time or from time to time
after the occurrence of both an Initial Triggering Event and a Purchase
Event (as defined in Section 4 of this Agreement) if, but only if, both the
Initial Triggering Event and the Purchase Event shall have occurred prior
to the occurrence of an Option Termination Event. In the event that BANC
ONE wishes to exercise the Option, BANC ONE shall give written notice of
such exercise (the date of such notice being herein called the "Notice
Date") within 30 days following such Purchase Event to FIRSTIER specifying
the number of Optioned Shares it will purchase pursuant to such exercise
and a place and date for the closing of such purchase which date shall be
within 60 days of the Purchase Event, subject to reasonable extentions in
order for BANC ONE to obtain required regulatory approvals.
3. At any closing of the exercise of the Option, (i) BANC ONE will make
payment to FIRSTIER of the aggregate price for the Optioned Shares in
immediately available funds, in an amount equal to the product of the Per
Share Price multiplied by the number of Optioned Shares being purchased at
such closing and (ii) FIRSTIER will deliver to BANC ONE a duly executed
certificate or certificates representing the number of Optioned Shares so
purchased, registered in the name of BANC ONE or its nominee in the
denominations designated by BANC ONE in its notice of exercise. If counsel
for FIRSTIER and BANC ONE agree that such shares are "restricted shares"
under federal and/or state securities laws, certificates for such shares
shall bear a legend to that effect.
4. For purposes of this Agreement, an "Initial Triggering Event" shall have
occurred at such time as one of the following events shall have occurred
and BANC ONE shall have determined in good faith (and shall have notified
FIRSTIER in writing of such determination) that there is a reasonable
likelihood that, as a result of the occurrence of any of the following
events, consummation of the Merger pursuant to the term of this Merger
Agreement is jeopardized: (i) any person as defined in Sections 3(a)(9) or
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "1934
Act") (other than BANC ONE or any BANC ONE subsidiary or affiliate) shall
have commenced a bona fide offer to purchase shares of FIRSTIER Common such
that, upon consummation of said offer, such person would own or control 10%
or more of the outstanding shares of FIRSTIER Common, or shall have entered
into an agreement with FIRSTIER, or shall have filed an application or
notice with the Board or any other federal or state regulatory agency for
clearance or approval, to (A) merge or consolidate or enter into any
similar transaction, with FIRSTIER, (B) purchase, lease or otherwise
acquire all or substantially all of the assets of FIRSTIER or (C) purchase
or otherwise acquire (including by way of merger, consolidation, share
exchange or any similar transaction) securities representing 10% or more of
the voting power of FIRSTIER; (ii) any person (other than BANC ONE, BANC
ONE BETA, any BANC ONE subsidiary or affiliate, any subsidiary of FIRSTIER
("FIRSTIER Subsidiary") in a fiduciary capacity) shall have acquired
beneficial ownership or the right to acquire beneficial ownership of 10% or
more of the outstanding shares of FIRSTIER Common (the term "beneficial
ownership" for purposes of this Agreement having the meaning assigned
thereto in Section 13(d) of the 1934 Act); (iii) any person (other than
BANC ONE or any BANC ONE subsidiary or affiliate) shall have made a bona
fide proposal to FIRSTIER after the date of the Merger Agreement by public
announcement or written communication that is the subject of public
disclosure or regulatory report or filing to (A) acquire FIRSTIER by
merger, consolidation, purchase of all or substantially all of its assets
or any other similar transaction, or (B) make an offer described in clause
(i), above; (iv) any person shall have solicited proxies in a proxy
solicitation subject to Regulation 14A under the 1934 Act in opposition to
approval of the Merger Agreement by FIRSTIER's shareholders; (v) or
FIRSTIER shall have willfully breached any provision of the Merger
Agreement, which breach would entitle BANC ONE to terminate the Merger
Agreement and such breach shall not have been cured pursuant to the terms
of the Merger Agreement. For purposes of this Agreement, a "Purchase
Event" shall have occurred at such time as (i) any person (other than BANC
ONE or any BANC ONE subsidiary or affiliate) acquires beneficial ownership
of 50% or more of the then-outstanding shares of FIRSTIER Common, or (ii)
FIRSTIER enters into an agreement with another person (other than BANC ONE
or any BANC ONE subsidiary) pursuant to which such person is entitled to
acquire 50% or more of the then-outstanding shares of FIRSTIER Common.
5. If between the date of the Merger Agreement and the Effective Time, the
shares of FIRSTIER Common shall be changed into a different number of
shares by reason of any reclassification, recapitalization, split-up,
combination or exchange of shares, or if a stock dividend thereon shall be
declared with a record date within said period, the number of Optioned
Shares and the Per Share Price shall be adjusted appropriately so as to
restore BANC ONE to its rights hereunder, including, without limitation,
its right to purchase shares representing ownership of 19.9% of the voting
power of the capital stock of FIRSTIER (in addition to shares of FIRSTIER
Common acquired other than pursuant to any exercise of the Option) at an
adjusted per share purchase price equal to the Per Share Price multiplied
by a fraction, the numerator of which shall be equal to the number of
shares of FIRSTIER Common purchasable prior to the adjustment and the
denominator of which shall be equal to the number of shares of FIRSTIER
Common purchasable after the adjustment; provided, however, that nothing in
this Option shall be construed as permitting FIRSTIER to take any action or
enter into any transaction prohibited by this Agreement.
6. FIRSTIER shall, if requested by BANC ONE, as expeditiously as possible file
a registration statement on a form of general use under the Securities Act
of 1933, as amended, if necessary in order to permit the sale or other
disposition of the shares of FIRSTIER Common that have been acquired upon
exercise of the Option in accordance with the intended method of sale or
other disposition requested by BANC ONE. BANC ONE shall provide all
information reasonably requested by FIRSTIER for inclusion in any
registration statement to be filed hereunder. FIRSTIER will use its best
efforts to cause such registration statement first to become effective and
then to remain effective for such period not in excess of two hundred and
seventy calendar days from the day such registration statement first
becomes effective as may be reasonably necessary to effect such sales or
other dispositions. The registration effected under this Section 6 shall
be at FIRSTIER's expense except for all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
securities, which amounts shall be borne by BANC ONE. In no event shall
FIRSTIER be required to effect more than one registration hereunder
regardless of the number of assignees. The filing of any registration
statement hereunder may be delayed for such period of time as may
reasonably be required if FIRSTIER determines that any such filing or the
offering of any such shares of FIRSTIER Common would (i) impede, delay or
otherwise interfere with any financing, offer or sale of FIRSTIER Common or
any other securities of FIRSTIER, or (ii) require disclosure of material
information which, if disclosed at that time, would be materially harmful
to the interests of FIRSTIER and its shareholders. If requested by BANC
ONE in connection with any such registration, FIRSTIER will become a party
to any underwriting agreement relating to the sale of such shares, but only
to the extent of obligating itself in respect of representations,
warranties, indemnities and other agreements customarily included in such
underwriting agreements. Upon receiving any request from BANC ONE or an
assignee thereof under this Section 6, FIRSTIER agrees to send a copy
thereof to BANC ONE and to any assignee thereof known to FIRSTIER, in each
case by promptly mailing the same, postage prepaid, to the address of
record of the persons entitled to receive such copies.
7. Notices. All notices and other communications hereunder may be made by
mail, hand-delivery or by courier service. If notices and other
communications are made by nationally recognized overnight courier service
for overnight delivery, such notice shall be deemed to have been given one
business day after being forwarded to such a nationally recognized
overnight courier service for overnight delivery. All notices and other
communications hereunder given to any party shall be communicated to the
remaining party to this Agreement by mail or by hand-delivery in the same
manner as herein provided.
(a) If to BANC ONE, to:
BANC ONE CORPORATION
Attention of: Chief Executive Officer
100 East Broad Street
Columbus, Ohio 43271
With a copy to:
BANC ONE CORPORATION
Attention of: Roman J. Gerber
General Counsel
100 East Broad Street
Columbus, Ohio 43271
(b) If to FIRSTIER, to:
FirsTier Financial Inc.
Attention of: David A. Rismiller
1700 Farnam Street
Omaha, Nebraska 68103-0443
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention of: H. Rodgin Cohen
IN WITNESS WHEREOF, this Agreement has been executed the day and year first
above written.
BANC ONE CORPORATION
ATTEST:
By:
FIRSTIER FINANCIAL, INC.
ATTEST:
By:
Thomas E. Fischer David A. Rismiller
Secretary Chairman
FIRST AGREEMENT AMENDING
AGREEMENT and PLAN OF MERGER
This First Agreement Amending Agreement and Plan of Merger is dated as of
January , 1994 between FIRSTIER FINANCIAL, INC. (hereinafter called
"FIRSTIER") and BANC ONE BETA CORPORATION (hereinafter called "BANC ONE BETA")
and joined in by BANC ONE CORPORATION (hereinafter called "BANC ONE").
W I T N E S S E T H
WHEREAS, the parties hereto have entered into an Agreement and Plan of
Merger dated as of April 19, 1993 (hereinafter called the "Merger Agreement")
providing for the merger of BANC ONE BETA into FIRSTIER and the exchange of
shares of BANC ONE Common Stock for the shares of FIRSTIER Common Stock;
WHEREAS, the Merger Agreement provides the terms pursuant to which the
Merger Agreement may be terminated; and
WHEREAS, it is desirable that certain terms providing for the termination
of the Merger Agreement be amended.
S T A T E M E N T O F A G R E E M E N T
NOW THEREFORE, the parties hereby agree that this Merger Agreement shall be
amended as follows:
A. Section 26(d) of the Merger Agreement is amended to read in its entirety as
follows:
(d) In the event that the BANC ONE Average Price during the Valuation
Period (as those terms are defined in Section 7(c) of this Merger
Agreement) is less than $41.60 per share, FIRSTIER, by action of its
Board of Directors, may elect to terminate this Merger Agreement,
whether before or after approval of the Merger by the shareholders of
BANC ONE BETA or by FIRSTIER's shareholders, by giving written notice
of such election to BANC ONE within two NYSE trading days after such
Valuation Period. Upon receipt of such notice, BANC ONE may, at its
sole option:
(i) nullify such election to terminate by giving written notice to
FIRSTIER, within two NYSE trading days of BANC ONE's receipt of
FIRSTIER's notice, that it will modify the Exchange Rate, as
otherwise set forth in Section 7 of this Agreement, by increasing
such Exchange Rate to that number of shares of BANC ONE Common,
carried to three decimal places, which when multiplied by the
BANC ONE Average Price during the Valuation Period, will equal
$41.60 (the "Minimum Price"); or
(ii) accept such termination by giving written notice to FIRSTIER of
such acceptance of termination within two NYSE trading days of
BANC ONE's receipt of FIRSTIER's notice. This Merger Agreement
shall be terminated upon BANC ONE's notice to FIRSTIER, made as
provided by Section 31 of the Merger Agreement, of its election
to accept termination. In the event that BANC ONE elects to
accept such termination, within two NYSE trading days of
FIRSTIER's receipt of BANC ONE's written notice of such
acceptance, FIRSTIER shall deliver to BANC ONE a certified or
cashier's check in the amount of $1,000,000 payable to BANC ONE
(the "Check") as liquidated damages. BANC ONE shall be entitled
to negotiate said Check immediately upon receipt.
If BANC ONE declares a stock dividend (other than the 5 for 4 share
stock dividend in BANC ONE Common paid on August 31, 1993 to
shareholders of record as of August 3, 1993, which stock dividend was
taken into account in establishing the Minimum Price and in this
Section 26(d)), or effects a reclassification, recapitalization,
split-up, combination or subdivision of its common stock between the
date hereof and the "Ex-Dividend Date" (as hereinafter defined)
established for the shares being so divided, diluted or otherwise
affected which is prior to any portion of the Valuation Period,
appropriate adjustment will be made in the Minimum Price. The
"Ex-Dividend Date" is that date established by the NYSE for such
distributions.
Notwithstanding the potential that FIRSTIER shall be required to pay
liquidated damages to BANC ONE, as set forth in this Section 26(d), a
termination resulting from FIRSTIER's election under this Section 26(d)
shall, upon FIRSTIER's timely delivery of the Check, otherwise be
deemed to have been a termination by mutual consent of the parties.
B. Section 26(f) of the Merger Agreement is amended to read in its entirety as
follows:
(f) In the event of termination of this Merger Agreement (i) caused
otherwise than by a willful breach of this Merger Agreement by any of
the parties hereto, (ii) pursuant to Section 26(c), or (iii) pursuant
to Section 26(d), this Merger Agreement shall cease and terminate, the
acquisition of FIRSTIER as provided herein shall not be consummated,
and none of BANC ONE, BANC ONE BETA nor FIRSTIER shall have any
liability to any other party under this Merger Agreement of any nature
whatever, except for FIRSTIER's obligations related to the Check, as
specified in Section 26(d) of the Merger Agreement, and BANC ONE's
obligations related to the printing of the proxy solicitation
materials, including any liability for damages, provided, however, that
the duties of the parties with respect to confidential information as
set forth in Section 10(f) shall survive any such termination. If the
Merger is not consummated as the result of termination of this Merger
Agreement caused otherwise than by willful breach of a party hereto,
BANC ONE, BANC ONE BETA and FIRSTIER each shall pay its own fees and
expenses incident to the negotiation, preparation and execution of this
Merger Agreement, the respective shareholders' meetings and actions of
the parties and all other acts incidental to, contemplated by or in
pursuance of the transactions contemplated by this Merger Agreement,
including fees and expenses of their respective counsel, accountants
and other experts and advisors.
Except as amended by this Agreement, the Merger Agreement and the exhibits
thereto remain in full force and effect without alteration or change.
IN WITNESS WHEREOF, the parties hereto have set their hands on the date and in
the year first above written.
BANC ONE CORPORATION
ATTEST:
By: WILLIAM P. BOARDMAN
ROMAN J. GERBER William P. Boardman
Roman J. Gerber Senior Executive Vice President
Secretary
FIRSTIER FINANCIAL, INC.
ATTEST:
By: DAVID A. RISMILLER
THOMAS B. FISCHER David A. Rismiller
Thomas B. Fischer Chief Executive Officer
Secretary
BANC ONE BETA CORPORATION
ATTEST:
By: ROMAN J. GERBER
CHARLES F. ANDREWS Roman J. Gerber
Charles F. Andrews Chairman
Secretary
Option Agreement
Option Agreement, dated as of April 20, 1993 (this "Agreement"), by and between
FirsTier Financial, Inc., a corporation organized under the laws of the State
of Nebraska ("FIRSTIER") and BANC ONE CORPORATION, a corporation organized
under the laws of the State of Ohio ("BANC ONE").
W I T N E S S E T H :
WHEREAS, FIRSTIER and Banc One Beta Corporation, an Ohio corporation and a
wholly owned subsidiary of BANC ONE ("BANC ONE BETA"), together with BANC ONE,
have executed an Agreement and Plan of Merger dated April 19, 1993 (the "Merger
Agreement") providing for the merger of BANC ONE BETA with and into FIRSTIER
pursuant to which BANC ONE will acquire FIRSTIER as the surviving corporation;
WHEREAS, Section 21 of the Merger Agreement provides that FIRSTIER will
execute and deliver an Option Agreement, substantially in the form of this
Agreement, to BANC ONE prior to April 21, 1993;
NOW THEREFORE, in consideration of said Merger Agreement and their mutual
promises and obligations, the parties hereto adopt and make this Agreement as
follows:
1. FIRSTIER hereby grants to BANC ONE an irrevocable option (the "Option") to
purchase at the closing trade price of a share of the Common Stock, par
value of $5.00 per share, of FIRSTIER ("FIRSTIER Common"), on April 19,
1993, as reported on the National Association of Securities Dealers
Automated Quotation System National Market System, per share (the "Per
Share Price") in cash up to 2,281,000 authorized but unissued shares of
FIRSTIER Common (the "Optioned Shares"). The Option shall expire (such
event being referred to herein as the "Option Termination Event") if not
exercised as permitted under this Agreement prior to the earlier of (i) at
the time the merger of BANC ONE BETA into FIRSTIER becomes effective as set
forth and defined in Section 4 of the Merger Agreement (the "Effective
Time"), (ii) BANC ONE or FIRSTIER receiving written notice from the Board
of Governors of the Federal Reserve System (the "Board") or its staff to
the effect that the exercise of the Option pursuant to the terms of this
Agreement is not consistent with Section 3 of the Bank Holding Company Act
of 1956, as amended, (iii) termination of the Merger Agreement by BANC ONE
in accordance with the provisions of Section 26 of the Merger Agreement if
such termination occurs prior to the occurrence of an Initial Triggering
Event (as hereinafter defined), (iv) the first business day after the three
hundred and sixty-fifth calendar day following termination of the Merger
Agreement by BANC ONE in accordance with the provisions of Section 26
thereof, if such termination follows the occurrence of an Initial
Triggering Event, provided that the Option shall in all events expire not
later than 18 months after such Initial Triggering Event, (v) termination
of the Merger Agreement by FIRSTIER in accordance with the provisions of
Section 26 thereof, or (vi) termination of the Merger Agreement by mutual
consent of BANC ONE and FIRSTIER. If, in the case of (iv), the Option is
otherwise exercisable but cannot be exercised on such day solely because of
any injunction, order or similar restraint issued by a court of competent
jurisdiction, the Option shall expire on the twentieth business day after
such injunction, order or restraint shall have been dissolved or when such
injunction, order or restraint shall have become permanent and no longer
subject to appeal, as the case may be.
2. Provided that (i) no preliminary or permanent injunction or other order
issued by any Federal or state court of competent jurisdiction in the
United States prohibiting the exercise of the Option or the delivery of the
Optioned Shares shall be in effect and (ii) any such exercise shall
otherwise be subject to compliance with applicable law, BANC ONE may
exercise the Option in whole or in part at any time or from time to time
after the occurrence of both an Initial Triggering Event and a Purchase
Event (as defined in Section 4 of this Agreement) if, but only if, both the
Initial Triggering Event and the Purchase Event shall have occurred prior
to the occurrence of an Option Termination Event. In the event that BANC
ONE wishes to exercise the Option, BANC ONE shall give written notice of
such exercise (the date of such notice being herein called the "Notice
Date") within 30 days following such Purchase Event to FIRSTIER specifying
the number of Optioned Shares it will purchase pursuant to such exercise
and a place and date for the closing of such purchase which date shall be
within 60 days of the Purchase Event, subject to reasonable extentions in
order for BANC ONE to obtain required regulatory approvals.
3. At any closing of the exercise of the Option, (i) BANC ONE will make
payment to FIRSTIER of the aggregate price for the Optioned Shares in
immediately available funds, in an amount equal to the product of the Per
Share Price multiplied by the number of Optioned Shares being purchased at
such closing and (ii) FIRSTIER will deliver to BANC ONE a duly executed
certificate or certificates representing the number of Optioned Shares so
purchased, registered in the name of BANC ONE or its nominee in the
denominations designated by BANC ONE in its notice of exercise. If counsel
for FIRSTIER and BANC ONE agree that such shares are "restricted shares"
under federal and/or state securities laws, certificates for such shares
shall bear a legend to that effect.
4. For purposes of this Agreement, an "Initial Triggering Event" shall have
occurred at such time as one of the following events shall have occurred
and BANC ONE shall have determined in good faith (and shall have notified
FIRSTIER in writing of such determination) that there is a reasonable
likelihood that, as a result of the occurrence of any of the following
events, consummation of the Merger pursuant to the term of this Merger
Agreement is jeopardized: (i) any person as defined in Sections 3(a)(9) or
13(d)(3) of the Securities Exchange Act of 1934, as amended (the "1934
Act") (other than BANC ONE or any BANC ONE subsidiary or affiliate) shall
have commenced a bona fide offer to purchase shares of FIRSTIER Common such
that, upon consummation of said offer, such person would own or control 10%
or more of the outstanding shares of FIRSTIER Common, or shall have entered
into an agreement with FIRSTIER, or shall have filed an application or
notice with the Board or any other federal or state regulatory agency for
clearance or approval, to (A) merge or consolidate or enter into any
similar transaction, with FIRSTIER, (B) purchase, lease or otherwise
acquire all or substantially all of the assets of FIRSTIER or (C) purchase
or otherwise acquire (including by way of merger, consolidation, share
exchange or any similar transaction) securities representing 10% or more of
the voting power of FIRSTIER; (ii) any person (other than BANC ONE, BANC
ONE BETA, any BANC ONE subsidiary or affiliate, any subsidiary of FIRSTIER
("FIRSTIER Subsidiary") in a fiduciary capacity) shall have acquired
beneficial ownership or the right to acquire beneficial ownership of 10% or
more of the outstanding shares of FIRSTIER Common (the term "beneficial
ownership" for purposes of this Agreement having the meaning assigned
thereto in Section 13(d) of the 1934 Act); (iii) any person (other than
BANC ONE or any BANC ONE subsidiary or affiliate) shall have made a bona
fide proposal to FIRSTIER after the date of the Merger Agreement by public
announcement or written communication that is the subject of public
disclosure or regulatory report or filing to (A) acquire FIRSTIER by
merger, consolidation, purchase of all or substantially all of its assets
or any other similar transaction, or (B) make an offer described in clause
(i), above; (iv) any person shall have solicited proxies in a proxy
solicitation subject to Regulation 14A under the 1934 Act in opposition to
approval of the Merger Agreement by FIRSTIER's shareholders; (v) or
FIRSTIER shall have willfully breached any provision of the Merger
Agreement, which breach would entitle BANC ONE to terminate the Merger
Agreement and such breach shall not have been cured pursuant to the terms
of the Merger Agreement. For purposes of this Agreement, a "Purchase
Event" shall have occurred at such time as (i) any person (other than BANC
ONE or any BANC ONE subsidiary or affiliate) acquires beneficial ownership
of 50% or more of the then-outstanding shares of FIRSTIER Common, or (ii)
FIRSTIER enters into an agreement with another person (other than BANC ONE
or any BANC ONE subsidiary) pursuant to which such person is entitled to
acquire 50% or more of the then-outstanding shares of FIRSTIER Common.
5. If between the date of the Merger Agreement and the Effective Time, the
shares of FIRSTIER Common shall be changed into a different number of
shares by reason of any reclassification, recapitalization, split-up,
combination or exchange of shares, or if a stock dividend thereon shall be
declared with a record date within said period, the number of Optioned
Shares and the Per Share Price shall be adjusted appropriately so as to
restore BANC ONE to its rights hereunder, including, without limitation,
its right to purchase shares representing ownership of 19.9% of the voting
power of the capital stock of FIRSTIER (in addition to shares of FIRSTIER
Common acquired other than pursuant to any exercise of the Option) at an
adjusted per share purchase price equal to the Per Share Price multiplied
by a fraction, the numerator of which shall be equal to the number of
shares of FIRSTIER Common purchasable prior to the adjustment and the
denominator of which shall be equal to the number of shares of FIRSTIER
Common purchasable after the adjustment; provided, however, that nothing in
this Option shall be construed as permitting FIRSTIER to take any action or
enter into any transaction prohibited by this Agreement.
6. FIRSTIER shall, if requested by BANC ONE, as expeditiously as possible file
a registration statement on a form of general use under the Securities Act
of 1933, as amended, if necessary in order to permit the sale or other
disposition of the shares of FIRSTIER Common that have been acquired upon
exercise of the Option in accordance with the intended method of sale or
other disposition requested by BANC ONE. BANC ONE shall provide all
information reasonably requested by FIRSTIER for inclusion in any
registration statement to be filed hereunder. FIRSTIER will use its best
efforts to cause such registration statement first to become effective and
then to remain effective for such period not in excess of two hundred and
seventy calendar days from the day such registration statement first
becomes effective as may be reasonably necessary to effect such sales or
other dispositions. The registration effected under this Section 6 shall
be at FIRSTIER's expense except for all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
securities, which amounts shall be borne by BANC ONE. In no event shall
FIRSTIER be required to effect more than one registration hereunder
regardless of the number of assignees. The filing of any registration
statement hereunder may be delayed for such period of time as may
reasonably be required if FIRSTIER determines that any such filing or the
offering of any such shares of FIRSTIER Common would (i) impede, delay or
otherwise interfere with any financing, offer or sale of FIRSTIER Common or
any other securities of FIRSTIER, or (ii) require disclosure of material
information which, if disclosed at that time, would be materially harmful
to the interests of FIRSTIER and its shareholders. If requested by BANC
ONE in connection with any such registration, FIRSTIER will become a party
to any underwriting agreement relating to the sale of such shares, but only
to the extent of obligating itself in respect of representations,
warranties, indemnities and other agreements customarily included in such
underwriting agreements. Upon receiving any request from BANC ONE or an
assignee thereof under this Section 6, FIRSTIER agrees to send a copy
thereof to BANC ONE and to any assignee thereof known to FIRSTIER, in each
case by promptly mailing the same, postage prepaid, to the address of
record of the persons entitled to receive such copies.
7. Notices. All notices and other communications hereunder may be made by
mail, hand-delivery or by courier service. If notices and other
communications are made by nationally recognized overnight courier service
for overnight delivery, such notice shall be deemed to have been given one
business day after being forwarded to such a nationally recognized
overnight courier service for overnight delivery. All notices and other
communications hereunder given to any party shall be communicated to the
remaining party to this Agreement by mail or by hand-delivery in the same
manner as herein provided.
(a) If to BANC ONE, to:
BANC ONE CORPORATION
Attention of: Chief Executive Officer
100 East Broad Street
Columbus, Ohio 43271
With a copy to:
BANC ONE CORPORATION
Attention of: Roman J. Gerber
General Counsel
100 East Broad Street
Columbus, Ohio 43271
(b) If to FIRSTIER, to:
FirsTier Financial Inc.
Attention of: David A. Rismiller
1700 Farnam Street
Omaha, Nebraska 68103-0443
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention of: H. Rodgin Cohen
IN WITNESS WHEREOF, this Agreement has been executed the day and year first
above written.
BANC ONE CORPORATION
ATTEST:
CHARLES F. ANDREWS By: ROMAN J. GERBER
Charles F. Andrews Roman J. Gerber
Assistant Secretary Executive Vice President
FIRSTIER FINANCIAL, INC.
ATTEST:
THOMAS B. FISCHER By: DAVID A. RISMILLER
Thomas B. Fischer David A. Rismiller
Secretary Chairman
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
P R O X Y
FOR SPECIAL MEETING OF SHAREHOLDERS OF
FIRSTIER FINANCIAL, INC.
* * * * * * * * * *
KNOW ALL MEN BY THESE PRESENTS, That I, the undersigned shareholder
of FirsTier Financial, Inc. ("FIRSTIER") do hereby nominate,
constitute and appoint , or
, and each or any one of them (with full power to
act alone) my proxy ("Proxy") and true and lawful attorney(s) in
fact with full power of substitution, for me and in my name, place
and stead to vote all shares of FIRSTIER Common Stock, par value
$5.00 per share ("FIRSTIER Common Stock") standing in my name, on
its books at the close of business on at the
special meeting of its shareholders to be held at
, Omaha, Nebraska on , 1994 at : .m.,
local time, or at any adjournment thereof, with all the powers the
undersigned would possess if personally present, as follows:
1. Proposal to approve and adopt an Agreement and Plan of Merger
dated April 19, 1993, as amended, by and between FIRSTIER and
Banc One Beta Corporation ("Banc One Beta") and joined in by
BANC ONE CORPORATION ("BANC ONE") and providing for the merger
of FIRSTIER with and into Banc One Beta, a subsidiary of BANC
ONE, pursuant to which each share of FIRSTIER Common Stock
would be converted into shares of BANC ONE Common Stock
without par value ("BANC ONE Common Stock") at a rate of 1.25
shares of BANC ONE Common Stock for each share of FIRSTIER
Common Stock.
FOR AGAINST ABSTAIN
2. In their discretion, the Proxies are authorized to vote upon
such other business as may properly come before the meeting or
any adjournments or postponements thereof.
The Board of Directors knows of no other business to be
brought before the meeting.
IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR PROPOSAL 1
AND ACCORDING TO THE BEST JUDGMENT OF THE PROXIES WITH REGARD TO
PROPOSAL 2.
THIS PROXY MAY BE REVOKED BY A SUBSEQUENTLY DATED PROXY CARD OR
WRITTEN NOTICE TO THE BOARD OF DIRECTORS OR PERSONAL BALLOT AT THE
MEETING.
Please sign exactly as name appears on FIRSTIER records. When
shares are held by joint tenants, both must sign. When
signing as attorney-in-fact, executor, administrator, trustee,
committee, personal representative or guardian, please give
full title as such. If a corporation, please sign in full
corporate name by President or other authorized officer. If
a partnership, please sign in partnership name by authorized
person.
Dated: Dated:
Signature Signature if held jointly
(Please print name) (Please print name)
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD USING THE
ENCLOSED ENVELOPE
CONSENT OF INDEPENDENT ACCOUNTS
We consent to the incorporation by reference in the Registration
Statement of BANC ONE CORPORATION on Form S-4 of our reports:
- - dated February 26, 1993 on our audits of the consolidated
financial statements of BANC ONE CORPORATION as of December
31, 1992 and 1991 and for the years ended December 31, 1992,
1991, and 1990;
- - dated February 22, 1991 on our audit of the consolidated
financials statements of Bank One, Texas, NA as of December
31, 1990 and for the year ended December 31, 1990;
included in BANC ONE CORPORATION's Annual Report on Form 10-K for
the year ended December 31, 1992.
Additionally, we consent to the incorporation by reference in the
Registration Statement of BANC ONE CORPORATION on Form S-4 of our
report dated August 18, 1993 on our audits of the supplemental
consolidated financial statements of BANC ONE CORPORATION as of
December 31, 1992 and 1991 and for the years ended December 31,
1992, 1991, and 1990, included in BANC ONE CORPORATIONS' Current
Report filed on Form 8-K.
We also consent to the reference to our Firm under the caption
"Experts" in said Registration Statement.
COOPERS & LYBRAND
COOPERS & LYBRAND
Columbus, Ohio
January 13, 1994
CONSENT OF INDEPENDENT PUBLIC ACCOUNTS
As independent public accounts, we hereby consent to the
incorporation by reference in this Form S-4 Registration
Statement of our report dated January 15, 1993, incorporated by
reference in FirsTier Financial, Inc.'s Form 10-K for the year
ended December 31, 1992 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN & CO.
Omaha, Nebraska
January 17, 1994
CONSENT OF KPMG PEAT MARWICK, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
FirsTier Financial, Inc.:
We consent to the incorporation by reference in the
Registration Statement on Form S-4 of Banc One Corporation filed
with the Securities and Exchange Commission on January 12, 1994
of our report dated January 17, 1992, relating to the
consolidated balance sheet of FirsTier Financial, Inc. and
subsidiaries as of December 31, 1991 and the related consolidated
statements of income, stockholders' equity and cash flows and
related schedules for each of the years in the two-year period
ended December 31, 1991, which report appears in the December 31,
1992 annual report on Form 10-K of FirsTier Financial, Inc., and
to the reference to our firm as "Experts" in the Prospectus.
KPMG PEAT MARWICK
KPMG PEAT MARWICK
Omaha, Nebraska
January 12, 1994
