<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1997
REGISTRATION NO. 333-26929
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 *
BANC ONE CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Ohio 31-0738296
- ---------------------------------- --------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
100 East Broad Street, Columbus, Ohio 43271
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
First USA, Inc. Employee Stock Option Plan
First USA, Inc. 1991 Stock Option Plan
First USA, Inc. Amended and Restated Outside Directors Stock Option Plan
- --------------------------------------------------------------------------------
(Full title of the plans)
Steven Alan Bennett
Senior Vice President and General Counsel
BANC ONE CORPORATION
Department OH1-0158
100 East Broad Street, Columbus, Ohio 43271-0158
- --------------------------------------------------------------------------------
(Name and address of agent for service)
614/248-7590
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
With Copies to:
Kenneth L. Wagner, Esq.
BANC ONE CORPORATION
Department OH1-0158
100 East Broad Street
Columbus, Ohio 43271-0158
614-248-5304
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Calculation of Registration Fee
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price offering registration
be registered registered(1) per share price fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 10,134,300 (2) (2) (2)
================================================================================
</TABLE>
(1) Plus such indeterminate number of shares as may be issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of 1933.
(2) Not applicable. All filing fees payable in connection with the
registration of the issuance of these securities were paid in connection
with the filing of the Registrant's Form S-4 Registration Statement (333-
26929) on May 12, 1997.
* Filed as a Post-Effective Amendment on Form S-8 to such Form S-4
Registration Statement pursuant to the procedure described in Part II
under "Introductory Statement."
Exhibit Index on page II-4.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INTRODUCTORY STATEMENT
BANC ONE CORPORATION (the "Registrant") hereby amends its Registration
Statement on Form S-4 (No. 333-26929) (the "Form S-4") by filing this Post-
Effective Amendment No. 1 on Form S-8 ("Amendment No. 1") with respect to up to
10,134,300 shares of the Registrant's common stock, no par value ($5 stated
value) per share ("Common Stock") issuable in connection with the First USA,
Inc. Employee Stock Option Plan, the First USA, Inc. 1991 Stock Option Plan and
the First USA, Inc. Amended and Restated Outside Directors Stock Option Plan
(collectively, the "Plans"). All such shares of Common Stock were previously
included in the Form S-4.
Pursuant to an Agreement and Plan of Merger dated as of January 19, 1997,
and amended as of April 23, 1997, between First USA, Inc. ("First USA") and the
Registrant (as amended, the "Merger Agreement"), First USA was merged (the
"Merger") with and into the Registrant on June 27, 1997 (the "Effective Time")
at which time the separate corporate existence of First USA ceased. At the
Effective Time, each of the Plans was assumed by the Registrant and each
outstanding and unexercised option (a "First USA Option") to purchase shares of
First USA common stock ("First USA Common Stock") was assumed by the Registrant.
After the Effective Time, each First USA Option is deemed to constitute an
option to acquire, on the same terms and conditions as were applicable under
such First USA Option immediately prior to the Effective Time, the number of
shares of Common Stock equal to the product, rounded to the nearest whole share,
of the number of shares of First USA Common Stock subject to such First USA
Option and 1.1659, at a price per share equal to the exercise price per share of
First USA Common Stock otherwise purchasable pursuant to such First USA Option
divided by 1.1659, rounded down to the nearest cent.
ITEM 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the year ended December
31, 1996 (as amended by the Form 10-K/A filed March 21, 1997).
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
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3. The Registrant's Current Reports on Form 8-K filed January 28, 1997,
January 29, 1997, April 17, 1997 and April 24, 1997.
4. The description of the Common Stock contained in the Registrant's
Registration Statement filed pursuant to Section 12 of the Exchange Act on Form
8-B on May 1, 1989, including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
The validity of the Common Stock to be issued pursuant to the Plans will
be passed upon by Steven Alan Bennett, Senior Vice President and General Counsel
of the Registrant. Mr. Bennett owns a number of shares of Common Stock and holds
options to purchase additional shares of Common Stock.
ITEM 6. Indemnification of Directors and Officers.
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 the 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. The
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. The 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.
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<PAGE> 5
ITEM 7. Exemption from Registration Claimed.
Not Applicable.
ITEM 8. Exhibits.
See the Exhibit Index attached hereto.
ITEM 9. Undertakings.
A. 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 this 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 this registration
statement (notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement); and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs A(1)(i) and A(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
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
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<PAGE> 6
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.
B. 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
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this 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.
C. 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing this Post-Effective Amendment No. 1 on Form S-8 to Form
S-4 Registration Statement and 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 June 30, 1997.
BANC ONE CORPORATION
By: /s/ Steven Alan Bennett
--------------------------------
Steven Alan Bennett
Senior Vice President
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this Post- Effective
Amendment No. 1 on Form S-8 to Form S-4 Registration Statement has been signed
by the following persons in the capacities and on the dates indicated:
Signature Title Date
--------- ----- -------------
/s/ John B. McCoy* Chairman of the Board June 30, 1997
- ----------------------------- (Principal Executive
John B. McCoy Officer & Director)
/s/ Richard J. Lehmann* President and Director June 30, 1997
- -----------------------------
Richard J. Lehmann
/s/ Michael J. McMennamin* Executive Vice President June 30, 1997
- ----------------------------- (Principal Financial
Michael J. McMennamin Officer)
/s/ Bobby L. Doxey* Controller (Principal June 30, 1997
- ----------------------------- Accounting Officer)
Bobby L. Doxey
/s/ Bennett Dorrance* Director June 30, 1997
- -----------------------------
Bennett Dorrance
/s/ Charles E. Exley, Jr.* Director June 30, 1997
- -----------------------------
Charles E. Exley, Jr.
/s/ E. Gordon Gee* Director June 30, 1997
- -----------------------------
E. Gordon Gee
II-5
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Signature Title Date
--------- ----- -------------
/s/ John R. Hall* Director June 30, 1997
- --------------------------------
John R. Hall
/s/ Laban P. Jackson, Jr.* Director June 30, 1997
- --------------------------------
Laban P. Jackson, Jr.
/s/ John W. Kessler* Director June 30, 1997
- --------------------------------
John W. Kessler
/s/ John G. McCoy* Director June 30, 1997
- --------------------------------
John G. McCoy
/s/ Thekla R. Shackelford* Director June 30, 1997
- --------------------------------
Thekla R. Shackelford
/s/ Alex Shumate* Director June 30, 1997
- --------------------------------
Alex Shumate
/s/ Frederick P. Stratton, Jr.* Director June 30, 1997
- --------------------------------
Frederick P. Stratton, Jr.
/s/ Robert D. Walter* Director June 30, 1997
- --------------------------------
Robert D. Walter
*By: /s/ Steven Alan Bennett
----------------------------
Attorney-in-fact
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<PAGE> 9
EXHIBIT INDEX
FORM S-8 REGISTRATION STATEMENT
Exhibit No. Description of Exhibit Sequential Page
- ----------- ---------------------- No.
---------------
3.1 Amended Articles of Incorporation of the
Registrant.
5 Opinion of Steven Alan Bennett, Esq.,
Senior Vice President and General Counsel of
the Registrant, regarding the legality of the
securities being offered, including consent.*
23.1 Consent of Steven Alan Bennett, Esq.,
Senior Vice President and General Counsel of
the Registrant (included in Exhibit 5 attached
hereto).*
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney (included elsewhere in
Part II of this Registration Statement).*
* Previously filed.
II-7
<PAGE> 1
AMENDED
ARTICLES OF INCORPORATION
OF
BANC ONE CORPORATION
FIRST: The name of the Corporation (hereinafter called the "Corporation") is
BANC ONE CORPORATION.
SECOND: The place in Ohio where the principal office of the Corporation is
located is Columbus, Franklin County.
THIRD: The purpose for which the Corporation is formed is to engage in any
lawful act or activity for which corporations may be formed under the Ohio
General Corporation Law, as now in effect or hereafter amended.
FOURTH: The amount of total authorized capital stock which the Corporation
shall have authority to issue is Nine Hundred Eighty-Five Million (985,000,000)
shares consisting of Nine Hundred Fifty Million (950,000,000) shares of Common
Stock which are common shares without par value, Ten Million (10,000,000)
shares of Class A Preferred Stock which are preferred shares without par value,
One Million (1,000,000) shares of Class B Convertible Preferred Stock (Class B
Preferred Stock) which are preferred shares without par value, and Twenty-Four
Million (24,000,000) shares of Class C Preferred Stock which are preferred
shares without par value.
(A) EXPRESS TERMS OF THE COMMON STOCK
The shares of Common Stock shall be subject to the terms of the Class A
Preferred Stock, the Class B Preferred Stock and the Class C Preferred
Stock (collectively, "Preferred Stock") and the express terms of any
series thereof. Each share of Common Stock shall be equal to every other
share of Common Stock and the holders thereof shall be entitled to one
vote for each share of such Stock on all questions presented to the
shareholders. Subject to any rights to receive dividends to which the
holders of the shares outstanding of Preferred Stock, if any, may be
entitled, the holders of shares of Common Stock shall be entitled to
receive dividends, if and when declared, payable from time to time by
the Board of Directors from funds legally available therefor.
(B) EXPRESS TERMS OF CLASS A PREFERRED STOCK
The shares of Class A Preferred Stock may be issued from time to time in
one or more series. All shares of Class A Preferred Stock shall be of
equal rank and shall be identical, except in respect of the matters that
may be fixed by the Board of Directors as hereinafter provided, and
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each share of each series shall be identical with all other shares of
such series, except as to the date from which dividends are cumulative.
Subject to the provisions of this paragraph (B), which provisions shall
apply to all Class A Preferred Stock, the Board of Directors hereby is
authorized to cause such shares to be issued in one or more series and
with respect to each such series prior to the issuance thereof to fix:
(1) the designation of the series, which may be by distinguishing
number, letter or title;
(2) the number of shares of the series, which number the Board of
Directors may from time to time (except where otherwise provided in
the creation of the series) increase or decrease (but not below the
number of shares thereof then outstanding);
(3) the dividend rate of the series;
(4) the dates of payment of dividends and the dates from which
dividends of the series shall be cumulative;
(5) the redemption rights and price or prices for shares of the series;
(6) sinking fund requirements, if any, for the purchase or redemption
of shares of the series;
(7) the liquidation price payable on shares of the series in the event
of any liquidation, dissolution or winding up of the affairs of the
Corporation;
(8) whether the shares of the series shall be convertible into Common
Stock, and, if so, the conversion price or prices, any adjustments
thereof, and all other terms and conditions upon which such
conversion may be made;
(9) restrictions on the issuance of any class or series; and
(10) such other terms as the Board of Directors may by law from time to
time be permitted to fix or change.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with
respect to each such series, the matters described in the preceding
clauses (1) to (10) of this paragraph (B).
Shares of Class A Preferred Stock shall be entitled to voting rights as
follows:
(1) Except as otherwise required by law or the Articles of
Incorporation of the Corporation or this paragraph (B), the holders
of the Class A Preferred Stock, voting together as a class with the
holders of the Common Stock and the holders of any other class or
series of Preferred Stock who are similarly entitled to vote, shall
be entitled to vote for the election of directors and all other
matters.
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(2) During any period in which dividends on the Class A Preferred Stock
are cumulatively in arrears in the amount of six or more full
quarterly dividends, the holders of the Class A Preferred Stock,
voting together as a class with the holders of any other class or
series of Preferred Stock who are similarly entitled to vote, will
have the right to elect two directors which two directorships shall
be in addition to that number of directors then determined as
constituting the number of members of the Board of Directors
pursuant to the Regulations of the Corporation.
(3) The approval of a majority of the outstanding shares of Class A
Preferred Stock voted together as a class shall be required in
order to amend the Articles of Incorporation of the Corporation to
affect adversely the rights of the holders of the Class A 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 A
Preferred Stock.
(C) EXPRESS TERMS OF THE CLASS B CONVERTIBLE PREFERRED STOCK
The express terms and provisions of the shares of the Class B Preferred
Stock are as follows:
(1) Dividends.
(a) The holders of record of Class B Preferred Stock, on such
respective dates as shall be determined by the Board of
Directors in advance of the payment of each dividend provided
for herein, shall be entitled to receive, as and when declared
by the Board of Directors and out of assets of the Corporation
which are by law available for payment of dividends, cumulative
preferential cash dividends, at the rate of $3.00 per share per
annum payable quarterly on the first business day of January,
April, July and October in each year, commencing on July 3,
1989 (each such day being hereinafter called a "dividend date"
and each quarterly period ending on the last day of the
calendar month preceding a dividend date being hereinafter
called a "dividend period"), which dividends shall accrue from
April 1, 1989.
(b) Dividends on the Class B Preferred Stock shall be cumulative,
whether or not in any dividend period or periods there shall be
surplus or net profits of the Corporation legally available for
the payment of such dividends.
(c) Accumulations of dividends on any shares of Class B Preferred
Stock shall not bear interest.
(d) All dividends declared on the Class B Preferred Stock for any
dividend period and on any class or series of stock ranking on
a parity with the Class B Preferred Stock as to dividends shall
be declared pro rata so that the amounts of dividends per share
declared for such period on the Class B Preferred Stock and on
any class or series of stock ranking on a parity with the Class
B Preferred Stock as to dividends that
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were outstanding during such period shall in all cases bear to
each other the same proportions that the respective dividend
rates of such stock for such period bear to each other.
(e) The Corporation shall not (i) declare or pay any dividend or
other distribution with respect to any junior stock of the
Corporation or (ii) redeem or set apart funds for the purchase
or redemption of any junior stock through a sinking fund or
otherwise, unless (i) all cumulating and accrued dividends with
respect to the Class B Preferred Stock have been paid or funds
have been set apart for payment of such dividends and (ii)
funds have been set apart for the payment of the dividend for
the current dividend period with respect to the Class B
Preferred Stock.
(f) As used herein the term "dividends" does not include dividends
payable solely in shares of junior stock, or rights to
subscribe for or purchase any junior stock.
(g) As used herein, the phrase "set apart" in respect of the
payment of dividends shall require deposit of any funds in a
bank or trust company in a separate deposit account maintained
for the benefit of the holders of the Class B Preferred Stock.
(h) As used herein, the term "junior stock" means the Common Stock
and any other class of capital stock of the Corporation now or
hereafter issued and outstanding which ranks junior in priority
to the Class B Preferred Stock.
(i) As used herein, the term "cumulating or accrued" in respect of
dividends with respect to the Class B Preferred Stock means an
amount equal to dividends thereon at the rate of $3.00 per
share per annum, computed from the date on which such dividends
commenced to cumulate, and cumulating on each dividend date
thereafter, less the aggregate amount of all dividends
previously paid with respect to such Class B Preferred Stock.
(2) Liquidation Preference.
(a) The amount which the holders of Class B Preferred Stock shall
be entitled to receive in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary
or involuntary, shall be $26.00 per share plus an amount per
share equal to all dividends cumulating or accrued and unpaid
thereon to the date of such liquidation, dissolution or winding
up, and no more.
(b) Upon any such liquidation, dissolution or winding up, the
preferential amounts with respect to the Class B Preferred
Stock and any class or series of stock ranking on a parity with
the Class B Preferred Stock shall be distributed pro rata in
accordance with the aggregate preferential amounts of the Class
B Preferred Stock and such other classes or series of stock, if
any, out of or to the extent of the net assets of the
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<PAGE> 5
Corporation legally available for such distribution, before any
distributions are made with respect to any junior stock.
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation,
stating the payment date and the place where the distributable
amounts shall be payable, shall be given by mail, postage
prepaid, not less than 45 days prior to the payment date stated
therein, to the holders of record of the Class B Preferred
Stock at their respective addresses as the same shall then
appear on the books of the Corporation.
(3) Redemption.
(a) At any time after April 1, 1993, all the Class B Preferred
Stock, or any part thereof, at any time outstanding may be
redeemed by the Corporation at any time or from time to time at
its election expressed by resolution of the Board of Directors
upon not less than 30 days previous notice to the holders of
record of the Class B Preferred Stock to be redeemed, given by
(i) registered or certified mail, postage prepaid, and (ii) the
single publication of such notice in The Wall Street Journal or
similar daily financial publication of general circulation in
the United States, upon payment in cash of $26.00 per share
plus the amount of any dividends cumulating or accrued and
unpaid thereon to the date fixed for redemption (the
"redemption date").
(b) In order to facilitate the redemption of any shares of Class B
Preferred Stock that may be chosen for redemption, the Board of
Directors is authorized to exercise its discretion to cause the
transfer books of the Corporation to be closed as to such
shares not more than 30 days prior to the designated redemption
date.
(c) Any notice of redemption mailed to a holder of Class B
Preferred Stock at his address as the same appears on the books
of the Corporation shall be conclusively presumed to have been
given whether or not the holder receives the notice. Each such
notice shall state the redemption date; the number of shares of
Class B Preferred Stock to be redeemed, and, if less than all
shares of Class B Preferred Stock held by such holder are to be
redeemed, the number of such shares to be redeemed from such
holder and the fact that a new certificate or certificates
representing any unredeemed shares shall be issued without cost
to such holder; the redemption price applicable to the shares
to be redeemed; the place or places where such shares are to be
surrendered; and that dividends on shares to be redeemed shall
cease to accrue and accumulate on the redemption date. No
defect in any such notice as to any shares of Class B Preferred
Stock shall affect the validity of the proceedings for the
redemption of any other shares of Class B Preferred Stock.
(d) The Corporation may not redeem less than all of the outstanding
shares of Class B Preferred Stock unless all cumulating or
accrued dividends with respect to the shares
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<PAGE> 6
of Class B Preferred Stock which shall not be so redeemed have
either been paid or set aside for payment.
(e) If less than all outstanding shares of Class B Preferred Stock
is to be redeemed, the redemption may be made either pro rata
or by lot as may be prescribed by resolution of the Board of
Directors.
(f) Any shares of Class B Preferred Stock called for redemption
pursuant to this paragraph (3) shall not be deemed to be
outstanding for the purposes of voting, determining the total
number of shares entitled to vote, or payment of dividends
thereon on or after the date on which the notice of redemption
is mailed to the holders thereof and a sum sufficient to redeem
such shares has been set apart for payment of the redemption
price upon surrender of the certificates therefor. Any money
set aside for such payment which is not required to redeem such
shares because of conversions shall be promptly returned to the
Corporation. In addition, any money set apart for such payment
which remains unclaimed for a period of six years after the
redemption date shall be repaid to the Corporation upon the
request of the Corporation as expressed by a resolution of the
Board of Directors. The holders of record of the shares so
called for redemption who have not made a claim against such
moneys prior to such repayment to the Corporation shall be
deemed to be unsecured creditors of the Corporation for an
amount equivalent to the amount set apart for payment of the
redemption price and so repaid to the Corporation, but in no
event shall any such holder be entitled to any interest
thereon. The Corporation shall be entitled to receive any
interest paid from time to time on the money so set aside.
(4) Conversion.
(a) At the option of the holder of the outstanding Class B
Preferred Stock, such stock may be converted into the fully
paid and nonassessable Common Stock as provided for in this
para- graph (4). As used in this paragraph (4), Common Stock
means (i) the common stock without par value of the Corporation
as authorized by its Articles of Incorporation, and (ii) any
other class of capital stock into which such common stock has
been changed pursuant to any reclassification or reorganization
as defined in this paragraph (4).
(b) The Class B Preferred Stock may be converted into Common Stock
at the conversion rate in effect at the conversion date as
defined. On and after April 19, 1989 the "conversion rate"
shall be 2.222 shares of Common Stock for each share of Class B
Preferred Stock converted. However, the conversion rate shall
be adjusted from time to time as provided elsewhere in this
paragraph (4).
(c) Upon conversion of the Class B Preferred Stock, (i) no payment
shall be made on account of any dividends cumulating or accrued
and unpaid on such Class B
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<PAGE> 7
Preferred Stock to the conversion date and (ii) no adjustment
in the conversion rate will be made on account of any such
dividends.
(d) Any Class B Preferred Stock which has been called for
redemption pursuant to paragraph (3) hereof may nevertheless be
converted by the holder thereof at any time prior to the close
of business on the fifth day preceding the date fixed for the
redemption of such Class B Preferred Stock.
(e) In the event the Corporation on and after April 19, 1989 (i)
issues any Common Stock as a dividend with respect to the
outstanding Common Stock or any other common capital stock as a
class or (ii) subdivides or combines the outstanding Common
Stock, then the conversion rate in effect at the date of such
event shall be adjusted by multiplying such conversion rate by
the quotient of (a) the number of shares of Common Stock
outstanding immediately after such event, divided by (b) the
number of such shares outstanding immediately before such
event. As used in this paragraph (4), the term "common capital
stock" means any class of capital stock of the Corporation
ranking substantially on a parity with the Common Stock with
respect to either preference upon liquidation or payment of
dividends. Each adjustment in the conversion rate pursuant to
this subsection shall become effective as of either (i) the
record date for the payment of such dividend, or (ii) the
effective date of any such subdivision or combination.
(f) In the event that the Corporation distributes with respect to
the outstanding Common Stock or any other common capital stock
as a class any rights or warrants to purchase Common Stock at a
price per share which is less than the current market price per
share of the Common Stock determined as provided for in
paragraph (4)(l) at the record date fixed for determination of
the stockholders entitled to receive such distribution, then
the conversion rate shall be adjusted by multiplying the
conversion rate by the quotient of (i) the sum of (a) the
number of shares of Common Stock outstanding as of such record
date, plus (b) the maximum number of shares of Common Stock
issuable upon the full exercise of such rights or warrants,
divided by (ii) the sum of (a) the number of shares of Common
Stock outstanding as of such record date, plus (b) the product
of (x) the maximum number of shares of Common Stock issuable
upon the full exercise of such rights or warrants, multiplied
by (y) the quotient of the minimum exercise price of such
rights or warranties, divided by such current market price at
such record date. Each adjustment in the conversion rate
pursuant to this paragraph (4)(f) shall become effective as of
the record date fixed for determination of the shareholders
entitled to receive such distribution.
(g) The conversion rate shall not be adjusted if there is a
reclassification. As used in this paragraph (4), the term
"reclassification" means that the Common Stock is changed into
the same or a different number or amount of shares of capital
stock, other securities, cash or other property of the
Corporation by reclassification or other capital reorganization
other than a share dividend, a subdivision or combination, or
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<PAGE> 8
a reorganization all as provided for elsewhere in this para-
graph (4). However, in the event of any reclassification, the
Class B Preferred Stock shall become convertible into the same
number or amount of shares of capital stock, other securities,
cash or other property which would have been issuable,
deliverable or payable on account of the Common Stock issued
upon the conversion of the Class B Preferred Stock assuming
such stock had been converted immediately prior to such
reclassification. Each change in convertibility pursuant to
this paragraph (4)(g) shall become effective as of the
effective date of such reclassification.
(h) The conversion rate shall not be adjusted pursuant to para-
graph (4) hereof if there is a reorganization. As used in this
paragraph (4) the term "reorganization" means (i) the merger or
consolidation of the Corporation with or into any other
corporation or (ii) the sale or exchange of substantially all
of the assets of the Corporation as an entirety to any other
corporation or other entity. However, in the event of a
reorganization, the Class B Preferred Stock shall become
convertible into the same number or amount of shares of stock,
other securities, cash or other property of the corporation or
other entity surviving or resulting from the reorganization
which would have been issuable, deliverable or payable on
account of the Common Stock issued upon conversion of the Class
B Preferred Stock, assuming such stock had been converted
immediately prior to such reorganization. In addition, after a
reorganization, the provisions of this paragraph (4) shall be
appropriately applicable in a manner as nearly equivalent as
practicable to the manner in which such provisions applied
prior to such reorganiza- tion. Each change in convertibility
pursuant to this paragraph (4)(h) shall become effective as of
the effective date of each such reorganization.
(i) No adjustment in the conversion rate shall be required pursuant
to paragraph (4)(d) hereof unless such adjustment would require
an increase or decrease in the conversion rate in effect
immediately prior to such adjustment event of at least 1% of
one share of Common Stock. However, any such adjustments which
are not so required to be made at the time shall be carried
forward and taken into account in determining any subsequent
adjustment pursuant to paragraph (4) hereof.
(j) Each time (i) the conversion rate is adjusted or (ii) there is
a reclassification or a reorganization which changes the
convertibility of the Class B Preferred Stock, the Corporation
shall furnish to each holder of the Class B Preferred Stock a
certificate specifying such adjustment or change and describing
the circumstances of such adjustment or change.
(k) The Class B Preferred Stock may be converted by (i)
surrendering the certificates representing the shares of such
Class B Preferred Stock, together with (ii) written notice of
conversion, and (iii) a proper assignment of such certificates
to the Corporation or in blank. The notice of conversion shall
state the names and addresses in which the certificates
representing the Common Stock issuable upon
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<PAGE> 9
such conversion shall be issued. The date upon which the
certificates representing the shares to be converted, notice of
conversion and assignment are received by the transfer agent is
referred to herein as the "conversion date." As promptly as
practicable after the conversion date, the Corporation shall
issue and deliver, as specified in the notice of conversion,
certificates for the number of full shares of Common Stock (or
other shares of capital stock, other securities, cash or other
property) issuable upon such conversion, together with any cash
instead of fractional shares as provided in paragraph (4)(l)
hereof. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the conversion
date, and at such time the rights of the holder as a holder of
the converted shares of the Class B Preferred Stock shall cease
and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become
the holder or holders of record of the shares of Common Stock
represented thereby.
(l) No fractional shares of Common Stock (or other shares of stock
or other securities) or scrip representing fractional shares
shall be issued upon conversion of the Class B Preferred Stock.
Instead, the Corporation shall pay a cash adjustment in an
amount equal to the same fraction of the current market price
per share of the Common Stock (or other shares of capital stock
or other securities) at the conversion date. As used in this
para- graph (4), the term "current market price" at any time
means the daily average closing price for a period of thirty
business days ending on the business day before the date for
which such price is to be determined. The closing price for
each business day will be either (i) the last sale price
regular way as quoted on the principal national securities
exchange upon which the Common Stock (or other capital stock or
securities) is listed or admitted to trading, or, if the Common
Stock (or other capital stock or securities) is not so listed
or admitted, (ii) the average of the closing bid and asked
prices as quoted in Level 2 of NASDAQ. If, for any reason, such
closing prices cannot reasonably be determined, then the
"current market price" will be determined by any reasonable
method selected by the Board of Directors of the Corporation.
(m) In the event some but not all of the shares of the Class B
Preferred Stock represented by certificates surrendered by a
holder are converted, the Corporation shall execute and deliver
to or on the order of the holder, at the expense of the
Corporation, a new certificate representing the number of
shares of Class B Preferred Stock which were not converted.
(n) The Corporation shall at all times reserve and keep available
and free of preemptive rights out of its authorized but
unissued shares of Common Stock, solely for the purpose of
effecting the conversion of the Class B Preferred Stock, such
number of its shares of Common Stock (or other shares of
capital stock or other securities) as shall from time to time
be sufficient to effect the conversion of all outstanding
shares of the Class B Preferred Stock, and if at any time the
number of authorized but
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<PAGE> 10
unissued shares of Common Stock (or other shares of capital
stock or other securities) shall not be sufficient to effect
the conversion of all then outstanding shares of the Class B
Preferred Stock, the Corporation will take such corporate
action as may be necessary to increase its authorized but
unissued shares of Common Stock (or other shares of capital
stock or other securities) to such number of shares as shall be
sufficient for such purpose.
(o) The Corporation shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of
shares of capital stock or other securities of the Corporation
upon conversion of any shares of the Class B Preferred Stock.
However, the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares in a
name other than that of the holder of the shares of the Class B
Preferred Stock in respect of which such shares are being
issued.
(5) Voting Rights.
(a) Except as otherwise required by law or the Articles of
Incorporation of the Corporation or this paragraph (5), the
holders of the Class B Preferred Stock and the Common Stock
shall be entitled to vote together as a class for the election
of directors and all other matters. Each share of Class B
Preferred Stock shall be entitled to a number of votes with
respect to such matter equal to the number of shares of Common
Stock, including fractional shares, into which the shares of
Class B Preferred Stock would have been convertible upon the
record date for determination of shareholders entitled to vote
on such matter.
(b) During any period in which dividends on the Class B Preferred
Stock are cumulatively in arrears in the amount of six or more
full quarterly dividends, the holders of the Class B Preferred
Stock, voting together as a class with the holders of any other
class or series of Preferred Stock who are similarly entitled
to vote, will have the right to elect two directors which two
directorships shall be in addition to that number of directors
then determined as constituting the number of members of the
Board of Directors pursuant to the Regulations of the
Corporation.
(c) The approval of a majority of the outstanding shares of Class B
Preferred Stock voted together as a class shall be required in
order to amend the Articles of Incorporation of the Corporation
to affect adversely the rights of the holders of the Class B
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 B Preferred Stock.
(6) Reports and Notices. So long as any shares of the Class B Preferred
Stock shall be outstanding, the Corporation shall provide to the
holder or holders of such shares, copies
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<PAGE> 11
of all annual, quarterly and other reports of the Corporation and
copies of all shareholder notices of the Corporation when and as
furnished to the holders of the Common Stock.
(D) EXPRESS TERMS OF CLASS C PREFERRED STOCK
The shares of Class C Preferred Stock may be issued from time to time in
one or more series. All shares of Class C Preferred Stock shall be of
equal rank and shall be identical, except in respect of the matters that
may be fixed by the Board of Directors as hereinafter provided, and each
share of each series shall be identical with all other shares of such
series, except as to the date from which dividends are cumulative.
Subject to the provisions of this paragraph (D), which provisions shall
apply to all Class C Preferred Stock, the Board of Directors hereby is
authorized to cause such shares to be issued in one or more series and
with respect to each such series prior to the issuance thereof to fix:
(1) the designation of the series, which may be by distinguishing
number, letter or title;
(2) the number of shares of the series, which number the Board of
Directors may from time to time (except where otherwise provided in
the creation of the series) increase or decrease (but not below the
number of shares thereof then outstanding);
(3) the dividend rate of the series;
(4) the dates of payment of dividends and the dates from which
dividends of the series shall be cumulative;
(5) the redemption rights and price or prices for shares of the series;
(6) sinking fund requirements, if any, for the purchase or redemption
of shares of the series;
(7) the liquidation price payable on shares of the series in the event
of any liquidation, dissolution or winding up of affairs of the
Corporation;
(8) whether the shares of the series shall be convertible into Common
Stock, and, if so, the conversion price or prices, any adjustments
thereof, and all other terms and conditions upon which such
conversion may be made;
(9) restrictions on the issuance of shares of any class or series; and
(10) such other terms as the Board of Directors may by law from time to
time be permitted to fix or change.
The Board of Directors is authorized to adopt from time to time
amendments to the Articles of Incorporation fixing or changing, with
respect to each such series, the matters described in the preceding
clauses (1) to (10) of this paragraph (D).
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<PAGE> 12
Shares of Class C Preferred Stock shall not be entitled to voting rights
except to the extent described in the following clauses (1) and (2) of
this paragraph (D).
(1) During any period in which dividends on the Class C Preferred
Stock are cumulatively in arrears in the amount of six or more
full quarterly dividends, the holders of the Class C Preferred
Stock, voting together as a class with the holders of any other
class or series of Preferred Stock who are similarly entitled to
vote, will have the right to elect two directors which two
directorships shall be in addition to that number of directors
then determined as constituting the number of members of the
Board of Directors pursuant to the regulations of the
Corporation.
(2) The approval of a majority of the outstanding shares of Class C
Preferred Stock voted together as a class shall be required in
order to amend the Articles of Incorporation of the Corporation
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.
D(1) EXPRESS TERMS OF THE SERIES C PREFERRED STOCK
There is hereby authorized a series of Class C Preferred Stock to be
designated "Series C $3.50 Cumulative Convertible Preferred Stock"
("Series C Preferred Stock") consisting of 5,000,000 shares of Series C
Preferred Stock. The express terms and provisions of the Series C
Preferred Stock are fixed by the Board of Directors as follows:
(1) Dividends.
(a) The holders of record of Series C Preferred Stock, on such
respective dates as shall be determined by the Board of
Directors in advance of the payment of each dividend
provided for herein, shall be entitled to receive, as and
when declared by the Board of Directors and out of assets
of the Corporation which are by law available for the
payment of dividends, cumulative preferential cash
dividends, at the rate of $3.50 per share per annum payable
quarterly on March 31, June 30, September 30 and December
31 of each year, commencing on June 30, 1991 (each such day
being hereinafter called a "dividend date" and each
quarterly period ending on a dividend date being
hereinafter called a "dividend period"), which dividends
shall accrue from April 11, 1991. Each such dividend shall
be payable to the holders of record as they appear on the
stock books of the Corporation on such record dates, not
exceeding forty-five (45) days preceding the payment dates
thereof, as shall be fixed by the Board of Directors of the
Corporation.
(b) Dividends on the Series C Preferred Stock shall be
cumulative, whether or not in any dividend period or
periods there shall be surplus of the Corporation legally
available for the payment of such dividends.
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<PAGE> 13
(c) Accumulations of dividends on any shares of Series C
Preferred Stock shall not bear interest.
(d) All dividends declared on the Series C Preferred Stock for
any dividend period and on any class or series of stock
ranking on a parity with the Series C Preferred Stock as to
dividends shall be declared pro rata so that the amounts of
dividends per share declared for such period on the Series
C Preferred Stock and on any class or series of stock
ranking on a parity with the Series C Preferred Stock as to
dividends that were outstanding during such period shall in
all cases bear to each other the same proportions that the
respective dividend rates of such stock for such period
bear to each other.
(e) The Corporation shall not (i) declare or pay any dividend
or other distribution with respect to any junior stock of
the Corporation or (ii) redeem or set apart funds for the
purchase or redemption of any junior stock through a
sinking fund or otherwise, unless (i) all cumulating and
accrued dividends with respect to the Series C Preferred
Stock have been paid or funds have been set apart for
payment of such dividends and (ii) sufficient funds have
been set apart for the payment of the dividend for the
current dividend period with respect to the Series C
Preferred Stock.
(f) As used herein the term "dividends" does not include
dividends payable solely in shares of junior stock on
junior stock, or rights to holders of junior stock to
subscribe for or purchase any junior stock.
(g) As used herein, the phrase "set apart" in respect of the
payment of dividends shall require deposit of any funds in
a bank or trust company in a separate deposit account
maintained for the benefit of the holders of the Series C
Preferred Stock.
(h) As used herein, the term "junior stock" means the Common
Stock and any other class of capital stock of the
Corporation now or hereafter issued and outstanding which
ranks junior in priority to the Series C Preferred Stock.
(i) As used herein, the term "cumulating or accrued" in respect
of dividends with respect to the Series C Preferred Stock
means an amount equal to dividends thereon at the rate of
$3.50 per share per annum, computed from the date on which
such dividends commenced to cumulate, and cumulating on
each dividend date thereafter, less the aggregate amount of
all dividends previously paid with respect to such Series C
Preferred Stock.
(2) Liquidation Preference.
(a) The amount which the holders of Series C Preferred Stock
shall be entitled to receive in the event of any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, shall be $50 per share
plus an amount per share
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<PAGE> 14
equal to all dividends cumulating or accrued and unpaid
thereon to the date of such liquidation, dissolution or
winding up, and no more.
(b) Upon any such liquidation, dissolution or winding up, the
preferential amounts with respect to the Series C Preferred
Stock and any class or series of stock ranking on a parity
with the Series C Preferred Stock shall be distributed pro
rata in accordance with the aggregate preferential amounts
of the Series C Preferred Stock and such other classes or
series of stock, if any, out of or to the extent of the net
assets of the Corporation legally available for such
distribution, before any distributions are made with
respect to any junior stock.
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the
Corporation, stating the payment date and the place where
the distributable amounts shall be payable, shall be given
by mail, postage prepaid, not less than forty-five (45)
days prior to the payment date stated therein, to the
holders of record of the Series C Preferred Stock at their
respective addresses as the same shall then appear on the
books of the Corporation.
(3) Redemption.
(a) At any time after April 15, 1995, all the Series C
Preferred Stock, or any part thereof, at any time
outstanding, may be redeemed by the Corporation, with the
prior approval of the Federal Reserve Board if such
approval is required, at any time or from time to time at
its election expressed by resolution of the Board of
Directors upon not less than 30 nor more than 60 days
previous notice to the holders of record of the Series C
Preferred Stock to be redeemed, given by (i) registered or
certified mail, postage prepaid, and (ii) the single
publication of such notice in The Wall Street Journal or
similar daily financial publication of general circulation
in the United States, at a redemption price of $52.10 per
share during the period from April 15, 1995 through but not
including March 31, 1996, and thereafter at the redemption
prices set forth below during the 12 month periods
beginning on March 31 of the years shown below, in each
case plus accrued and unpaid dividends to the date fixed
for redemption (the "redemption date").
Year Redemption Price
---- ----------------
1996 $51.75
1997 $51.40
1998 $51.05
1999 $50.70
2000 $50.35
2001 and thereafter $50.00
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<PAGE> 15
(b) Any notice of redemption mailed to a holder of Series C
Preferred Stock at his address as the same appears on the
books of the Corporation shall be conclusively presumed to
have been given whether or not the holder receives the
notice. Each such notice shall state the redemption date;
the number of shares of Series C Preferred Stock to be
redeemed, and, if less than all shares of Series C
Preferred Stock held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder and
the fact that a new certificate or certificates
representing any unredeemed shares shall be issued without
cost to such holder; the redemption price applicable to the
shares to be redeemed; the place or places where such
shares are to be surrendered; and that dividends on shares
to be redeemed shall cease to accrue and accumulate on the
redemption date. No defect in any such notice as to any
shares of Series C Preferred Stock shall affect the
validity of the proceedings for the redemption of any other
shares of Series C Preferred Stock.
(c) The Corporation shall not give notice of redemption of
Series C Preferred Stock after the record date for the
payment of any dividend on the Common Stock payable for the
dividend period in which the redemption date occurs unless
the record date for the payment of dividends on the Series
C Preferred Stock is the same as the record date for the
payment of dividends on the Common Stock.
(d) The Corporation may not redeem less than all of the
outstanding shares of Series C Preferred Stock unless all
cumulating or accrued dividends with respect to the shares
of Series C Preferred Stock which shall not be so redeemed
have either been paid or set aside for payment.
(e) If less than all of the outstanding shares of Series C
Preferred Stock are to be redeemed, the redemption may be
made either pro rata or by lot as may be prescribed by
resolution of the Board of Directors.
(f) Any shares of Series C Preferred Stock called for
redemption pursuant to this subparagraph (3) shall not be
deemed to be outstanding for the purposes of voting,
determining the total number of shares entitled to vote, or
payment of dividends thereon on or after the date on which
the notice of redemption is mailed to the holders thereof
and a sum sufficient to redeem such shares has been set
apart for payment of the redemption price upon surrender of
the certificates therefor. Any money set apart for such
payment which is not required to redeem such shares because
of conversions shall be promptly returned to the
Corporation. In addition, any money set apart for such
payment which remains unclaimed for a period of six years
after the redemption date shall be repaid to the
Corporation upon the request of the Corporation as
expressed by a resolution of the Board of Directors. The
holders of record of the shares so called for redemption
who have not made a claim against such moneys prior to such
repayment to the Corporation shall be deemed to be
unsecured creditors of the Corporation for an amount
equivalent to
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<PAGE> 16
the amount set apart for payment of the redemption price
and so repaid to the Corporation, but in no event shall
any such holder be entitled to any interest thereon. The
Corporation shall be entitled to receive any interest
paid from time to time on the money so set apart.
(4) Conversion.
(a) At the option of each of the holders of outstanding
Series C Preferred Stock, such stock may be converted
into the fully paid and nonassessable Common Stock as
provided for in this subparagraph (4). As used in this
subparagraph (4), Common Stock means (i) the Common
Stock without par value of the Corporation as authorized
by its Articles of Incorporation, and (ii) any other
class of capital stock into which such Common Stock has
been changed pursuant to any reclassification or
reorganization as defined in this subparagraph (4).
(b) The Series C Preferred Stock may be converted into
Common Stock at the conversion rate in effect at the
conversion date as defined. The initial "conversion
rate" shall be 1.159420 shares of Common Stock for each
share of Series C Preferred Stock converted. For
purposes of such conversion, each share of Series C
Preferred Stock will be valued at $50. However, the
conversion rate shall be adjusted from time to time as
provided elsewhere in this subparagraph (4).
(c) Upon conversion of the Series C Preferred Stock, (i) no
payment shall be made on account of any dividends
cumulating or accrued and unpaid on such Series C
Preferred Stock to the conversion date, and (ii) no
adjustment in the conversion rate will be made on
account of any such dividends. Notwithstanding the
foregoing, if any share of Series C Preferred Stock is
converted after any record date for the payment of a
dividend on the Series C Preferred Stock but before the
due date for payment therefor, then (i) such dividend
shall be payable on such due date to the record holder
of such share on such record date, and (ii) such share,
when surrendered for conversion, shall be accompanied by
payment of an amount equal to the dividend payable on
such due date on such share (unless such share has been
called for redemption prior to the due date for payment
therefor).
(d) Any Series C Preferred Stock which has been called for
redemption pursuant to subparagraph (3) hereof may
nevertheless be converted by the holder thereof at any
time prior to the close of business on the tenth day
preceding the date fixed for the redemption of such
Series C Preferred Stock.
(e) In the event the Corporation (i) issues any Common Stock
as a dividend with respect to the outstanding Common
Stock or any other common capital stock as a class or
(ii) subdivides or combines the outstanding Common
Stock, then the conversion rate in effect at the date of
such event shall be adjusted by multiplying such
conversion rate by the quotient of (a) the number of
shares of Common
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<PAGE> 17
Stock outstanding immediately after such event, divided
by (b) the number of such shares outstanding immediately
before such event. As used in this subparagraph (4), the
term "common capital stock" means any class of capital
stock of the Corporation ranking substantially on a
parity with the Common Stock with respect to either
preference upon liquidation or payment of dividends.
Each adjustment in the conversion rate pursuant to this
subsection shall become effective as of either (i) the
record date for the payment of such dividend, or (ii)
the effective date of any such subdivision or
combination.
(f) In the event that the Corporation distributes with
respect to the outstanding Common Stock or any other
common capital stock as a class any rights or warrants
to purchase Common Stock at a price per share which is
less than the current market price per share of the
Common Stock determined as provided for in subparagraph
(4)(l) hereof at the record date fixed for determination
of the stockholders entitled to receive such
distribution, then the conversion rate shall be adjusted
by multiplying the conversion rate by the quotient of
(i) the sum of (a) the number of shares of Common Stock
outstanding as of such record date, plus (b) the maximum
number of shares of Common Stock issuable upon the full
exercise of such rights or warrants, divided by (ii) the
sum of (a) the number of shares of Common Stock
outstanding as of such record date, plus (b) the product
of (x) the maximum number of shares of Common Stock
issuable upon the full exercise of such rights or
warrants, multiplied by (y) the quotient of the minimum
exercise price of such rights or warranties, divided by
such current market price at such record date. If the
Corporation shall, by dividend or otherwise, distribute
to all holders of Common Stock evidences of its
indebtedness or assets (including securities, but
excluding any rights or warrants referred to above, any
dividend or distribution paid in cash out of retained
earnings of the Corporation and any dividend or
distribution referred to in subparagraph (4)(e) hereof),
the conversion rate shall be adjusted so that the same
shall equal the rate determined by multiplying the
conversion rate in effect immediately prior to the close
of business on the date fixed for the determination of
shareholders entitled to receive such distribution by a
fraction the denominator of which shall be the current
market price per share (determined as provided in
subparagraph (4)(c) hereof) of the Common Stock on the
date fixed for such determination less the then fair
market value (as determined by the Board of Directors,
whose determination shall be conclusive) of the portion
of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock and
the numerator of which shall be the current market price
per share of the Common Stock. Each adjustment in the
conversion rate pursuant to this subparagraph (4)(f)
shall become effective as of the record date fixed for
determination of the shareholders entitled to receive
such distribution.
(g) The conversion rate shall not be adjusted if there is a
reclassification. As used in this subparagraph (4), the
term "reclassification" means that the Common Stock
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<PAGE> 18
is changed into the same or a different number or amount
of shares of capital stock, other securities, cash or
other property of the Corporation by reclassification or
other capital reorganization other than a share
dividend, a subdivision or combination, or a
reorganization all as provided for elsewhere in this
subparagraph (4). However, in the event of any
reclassification, the Series C Preferred Stock shall
become convertible into the same number or amount of
shares of capital stock, other securities, cash or other
property which would have been issuable, deliverable or
payable on account of the Common Stock issued upon the
conversion of the Series C Preferred Stock assuming such
stock had been converted immediately prior to such
reclassification. Each change in convertibility pursuant
to this subparagraph (4)(g) shall become effective as of
the effective date of such reclassification.
(h) The conversion rate shall not be adjusted pursuant to
this subparagraph (4) if there is a reorganization. As
used in this subparagraph (4) the term "reorganization"
means (i) the merger or consolidation of the Corporation
with or into any other corporation or (ii) the sale or
exchange of substantially all of the assets of the
Corporation as an entirety to any other corporation or
other entity. However, in the event of a reorganization,
the Series C Preferred Stock shall become convertible
into the same number or amount of shares of stock, other
securities, cash or other property of the corporation or
other entity surviving or resulting from the
reorganization which would have been issuable,
deliverable or payable on account of the Common Stock
issued upon conversion of the Series C Preferred Stock,
assuming such stock had been converted immediately prior
to such reorganization. In addition, after a
reorganization, the provisions of this subparagraph 4
shall be appropriately applicable in a manner as nearly
equivalent as practicable to the manner in which such
provisions applied prior to such reorganization. Each
change in convertibility pursuant to this subparagraph
(4)(h) shall become effective as of the effective date
of each such reorganization.
(i) The Corporation may make such adjustments in the
conversion rate, in addition to those expressly required
above, as it considers to be advisable in order that any
event treated for federal income tax purposes as a
dividend of stock or stock rights shall not be taxable
to the recipients. No adjustment in the conversion rate
shall be required pursuant to subparagraph (4) hereof
unless such adjustment would require an increase or
decrease in the conversion rate in effect immediately
prior to such adjustment event of at least 1% of one
share of Common Stock. However, any such adjustments
which are not so required to be made at the time shall
be carried forward and taken into account in determining
any subsequent adjustment pursuant to this subparagraph
(4).
(j) Each time (i) the conversion rate is adjusted or (ii)
there is a reclassification or a reorganization which
changes the convertibility of the Series C Preferred
Stock, the Corporation shall furnish to each holder of
the Series C Preferred Stock a
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certificate specifying such adjustment or change and
describing the circumstances of such adjustment or
change.
(k) The Series C Preferred Stock may be converted by (i)
surrendering the certificates representing the shares of
such Series C Preferred Stock, together with (ii)
written notice of conversion, and (iii) a proper
assignment of such certificates to the Corporation or in
blank. The notice of conversion shall state the names
and addresses in which the certificates representing the
Common Stock issuable upon such conversion shall be
issued. The date upon which the certificates
representing the shares to be converted, notice of
conversion and assignment are received by the transfer
agent is referred to herein as the "conversion date." As
promptly as practicable after the conversion date, the
Corporation shall issue and deliver, as specified in the
notice of conversion, certificates for the number of
full shares of Common Stock (or other shares of capital
stock, other securities, cash or other property)
issuable upon such conversion, together with any cash
instead of fractional shares as provided in subparagraph
(4)(l) hereof. Such conversion shall be deemed to have
been effected immediately prior to the close of business
on the conversion date, and at such time the rights of
the holder as a holder of the converted shares of the
Series C Preferred Stock shall cease and the person or
persons in whose name or names any certificate or
certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have
become the holder or holders of record of the shares of
Common Stock represented thereby.
(l) No fractional shares of Common Stock (or other shares of
stock or other securities) or scrip representing
fractional shares shall be issued upon conversion of the
Series C Preferred Stock. Instead, the Corporation shall
pay a cash adjustment in an amount equal to the same
fraction of the current market price per share of the
Common Stock (or other shares of capital stock or other
securities) at the conversion date. As used in this
subparagraph (4), the term "current market price" at any
time means the daily average closing price for a period
of thirty business days ending on the business day
before the date for which such price is to be
determined. The closing price for each business day will
be either (i) the last sale price regular way as quoted
on the principal national securities exchange upon which
the Common Stock (or other capital stock or securities)
is listed or admitted to trading, or, if the Common
Stock (or other capital stock or securities) is not so
listed or admitted, (ii) the average of the closing bid
and asked prices as quoted in Level 2 of NASDAQ. If, for
any reason, such closing prices cannot reasonably be
determined, then the "current market price" will be
determined by any reasonable method selected by the
Board of Directors of the Corporation.
(m) In the event some but not all of the shares of the
Series C Preferred Stock represented by certificates
surrendered by a holder are converted, the Corporation
shall execute and deliver to or on the order of the
holder, at the expense of the
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Corporation, a new certificate representing the number
of shares of Series C Preferred Stock which were not
converted.
(n) The Corporation shall at all times reserve and keep
available and free of preemptive rights out of its
authorized but unissued shares of Common Stock, solely
for the purpose of effecting the conversion of the
Series C Preferred Stock, such number of its shares of
Common Stock (or other shares of capital stock or other
securities) as shall from time to time be sufficient to
effect the conversion of all outstanding shares of the
Series C Preferred Stock, and if at any time the number
of authorized but unissued shares of Common Stock (or
other shares of capital stock or other securities) shall
not be sufficient to effect the conversion of all then
outstanding shares of the Series C Preferred Stock, the
Corporation will take such corporate action as may be
necessary to increase its authorized but unissued shares
of Common Stock (or other shares of capital stock or
other securities) to such number of shares as shall be
sufficient for such purpose.
(o) The Corporation shall pay all documentary, stamp or
other transactional taxes attributable to the issuance
or delivery of shares of capital stock or other
securities of the Corporation upon conversion of any
shares of the Series C Preferred Stock. However, the
Corporation shall not be required to pay any taxes which
may be payable in respect of any transfer involved in
the issuance or delivery of any certificate for such
shares in a name other than that of the holder of the
shares of the Series C Preferred Stock in respect of
which such shares are being issued.
(5) Reports and Notices.
So long as any shares of Series C Preferred Stock shall be
outstanding, the Corporation shall provide to the holder or
holders of such shares, copies of all annual, quarterly and
other reports of the Corporation and copies of all shareholder
notices of the Corporation when and as furnished to the holders
of the Common Stock.
(6) Reacquired Shares.
Shares of Series C Preferred Stock converted, redeemed, or
otherwise purchased or acquired by the Corporation shall be
restored to the status of authorized but unissued shares of
Preferred Stock without designation as to series.
(7) No Sinking Fund.
Shares of Series C Preferred Stock are not subject to the
operation of a sinking fund.
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(8) Ranking.
The Series C Preferred Stock will rank on a parity as to
payment of dividends and upon liquidation with the Class B
Preferred Stock. While any shares of Series C Preferred Stock
are outstanding, the Corporation may not issue any series of
Class A Preferred Stock that ranks senior to the Series C
Preferred Stock.
FIFTH: Except as otherwise provided in these Articles of Incorporation or in
the Regulations, the holders of a majority of the outstanding shares are
authorized to take any action which, but for this provision, would require the
vote or other action of the holders of more than a majority of such shares.
SIXTH: To the extent not prohibited by law, the Board of Directors may
authorize the purchase by the Corporation of shares of any class issued by it.
SEVENTH: No holder of any class of shares of the Corporation shall, as such
holder, have any preemptive or preferential right to purchase or subscribe to
any shares of any class of stock of the Corporation, whether now or hereafter
authorized, whether unissued or in treasury, or to purchase any obligations
convertible into shares of any class of stock of the Corporation, which at any
time may be proposed to be issued by the Corporation or subjected to rights or
options to purchase granted by the Corporation.
EIGHTH: No holder of shares of any class of the Corporation shall have the
right to cumulate his voting power in the election of the Board of Directors
and the right to cumulate voting described in Ohio Revised Code Section 1701.55
is hereby specifically denied to the holders of shares of any class of the
Corporation.
NINTH: The Corporation may create and issue, whether or not in connection with
the issue and sale of any shares of stock or other securities of the
Corporation, rights or options entitling the holders thereof to purchase from
the Corporation any shares of its capital stock of any class or classes to the
extent such shares are authorized by these Articles, such rights or options to
be evidenced by or in such instrument or instruments as shall be approved by
the Board of Directors. The terms upon which any such shares may be purchased
upon the exercise of any such right or option, including without limitation the
time or times (which may be limited or unlimited in duration) at or within
which, and the price or prices at which, any such shares may be purchased,
shall be such as shall be determined as set forth or incorporated by reference
in a resolution adopted by the Board of Directors providing for the creation
and issue of such rights or options.
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TENTH: The provisions of this Article TENTH shall be applicable with respect to
all Business Combinations.
(A) Except as otherwise expressly provided in paragraph (B) of this
Article TENTH, each Business Combination shall require an affirmative
Special Shareholder Vote. Such affirmative vote shall be in addition
to any other affirmative vote required by law or these Articles of
Incorporation or Regulations of the Corporation, and shall be required
notwithstanding the fact that no vote may be required, or that a
lesser percentage or class vote may be specified, by law or in any
agreement with any national securities exchange or otherwise.
(B) The provisions of paragraph (A) of this Article TENTH shall not be
applicable to any particular Business Combination and such Business
Combination shall require only such affirmative vote, if any, as is
required by law and any other provision of these Articles of
Incorporation or Regulations of the Corporation, or any agreement with
any national securities exchange or otherwise, if all of the
conditions specified in either of the following paragraphs (B)(1) or
(B)(2) shall have been satisfied with respect to any such Business
Combination.
(1) (a) The terms of such Business Combination shall provide for
Fair Consideration to Shareholders; and
(b) A Proxy Statement describing the proposed Business
Combination shall be mailed to all holders of Voting
Stock at least 30 days prior to the consummation of such
Business Combination, regardless of whether or not such
Proxy Statement is required to be furnished to
shareholders of the Corporation pursuant to the Exchange
Act. The Proxy Statement shall set out, in a prominent
place, any expression as to the advisability or
inadvisability of such Business Combination that the
Unrelated Directors, or any of them, may choose to make
and, if deemed advisable by a majority of the Unrelated
Directors, the opinion of an investment banking firm
selected by a majority of the Unrelated Directors, at a
meeting at which an Unrelated Director Quorum is
present, as to the fairness or lack of fairness of the
terms of such Business Combination, from the financial
point of view of the holders of the outstanding shares
of capital stock of the Corporation other than the
Acquirer and its Affiliates or Associates. Such
investment banking firm shall be paid a reasonable fee
for its services by the Corporation.
(2) A majority of the Unrelated Directors shall have approved such
Business Combination and shall have determined, at a meeting at
which an Unrelated Director Quorum is present, that the terms
of the Business Combination are fair from the financial point
of view of the holders of the outstanding shares of capital
stock of the Corporation other than as to the Acquirer and its
Affiliates and Associates. Such approval and determination may
be made prior to or subsequent to the time that the Acquirer
becomes an Acquirer.
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<PAGE> 23
(C) For the purposes of this Article TENTH, the following terms shall have
the definitions specified in this paragraph (C).
(1) The term "Acquirer" shall mean any person (other than the
Corporation or any Subsidiary and other than any profit
sharing, employee stock ownership or other employee benefit
plan of the Corporation or any Subsidiary, or any trustee of or
fiduciary with respect to any such plan when acting in such
capacity) who:
(a) Is the beneficial owner of twenty percent (20%) or more
of the Voting Stock;
(b) Is an Affiliate or Associate of the Corporation and at
any time within the two-year period immediately prior to
the date in question was the beneficial owner of twenty
percent (20%) or more of the Voting Stock; or
(c) Is on the date in question an assignee of or has
otherwise succeeded to the beneficial ownership of the
shares of Voting Stock that were at any time within the
two-year period immediately prior to such time
beneficially owned by any Acquirer, if such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933 (except for any transactions governed by Rule
144 of the Securities Act of 1933).
For the purposes of determining whether a person is an Acquirer
pursuant to this paragraph (C)(1), the number of shares of
Voting Stock deemed to be outstanding shall include shares
deemed to be beneficially owned through application of
paragraph (C)(4) but shall not include any other shares of
Voting Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
(2) The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934
("Exchange Act"), as in effect on April 18, 1989 (the term
"registrant" in said Rule 12b-2 meaning the Corporation or the
Acquirer, as the case may be).
(3) The term "Announcement Date" shall have the meaning specified
in paragraph (C)(10)(a)(i) of this Article TENTH.
(4) A person shall be a "beneficial owner" and shall be deemed to
have "beneficial ownership" of any Voting Stock:
(a) Which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly, within the
meaning of Rule 13d-3 of the General Rules and
Regulations under the Exchange Act;
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<PAGE> 24
(b) Which such person or any of its Affiliates or Associates
has, directly or indirectly, (i) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options,
or otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or
(c) Which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding,
voting or disposing of any shares of Voting Stock.
(5) The term "Business Combination" shall mean any one or more of
the following transactions:
(a) Any merger or consolidation of the Corporation or any
Subsidiary with (i) any Acquirer or (ii) any other
corporation (whether or not itself an Acquirer) which is
or after such merger or consolidation would be an
Affiliate or Associate of an Acquirer; or
(b) Any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions) with any Acquirer, or any Affiliate or
Associate of any Acquirer, involving any assets or
securities of the Corporation, any Subsidiary or any
Acquirer, or any Affiliate or Associate of any Acquirer,
having an aggregate Fair Market Value of $10,000,000 or
more; or
(c) The adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed at any time
after any person becomes and continues to be an
Acquirer; or
(d) Any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction (whether or not with or otherwise involving
an Acquirer) that has the effect, directly or
indirectly, of increasing the proportionate share of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is beneficially
owned by any Acquirer or any Affiliate or Associate of
any Acquirer; or
(e) Any agreement, contract or other arrangement providing
for any one or more of the actions specified in clauses
(a) to (d) of this paragraph (C)(5).
(6) The term "Common Stock" shall mean those authorized and issued
shares of capital stock of the Corporation referred to as
common shares or Common Stock in Article FOURTH of these
Articles of Incorporation.
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<PAGE> 25
(7) The term "Unrelated Director" means any member of the Board of
Directors, while such person is a member of the Board of
Directors of the Corporation (the "Board"), who is neither an
Affiliate nor an Associate of the Acquirer (except solely by
reason of such Director being a member of the Board) and was a
member of the Board prior to the time that the Acquirer became
an Acquirer, and any successor of an Unrelated Director, while
such successor is a member of the Board, who is neither an
Affiliate nor an Associate of the Acquirer (except solely by
reason of such Director being a member of the Board), and is
recommended or elected to succeed an Unrelated Director by a
majority of the then Unrelated Directors, provided that such
recommendation or election shall only be effective for the
purposes of this paragraph (C)(7) if made at a meeting at which
an Unrelated Director Quorum is present.
(8) The term "Unrelated Director Quorum" means at least sixty
percent (60%) of the number of Unrelated Directors capable of
exercising the powers conferred upon them under these Articles
of Incorporation or Regulations of the Corporation or by law,
but in any case not less than five Unrelated Directors.
(9) The term "Exchange Act" shall have the meaning specified in
paragraph (C)(2) of this Article TENTH.
(10) The term "Fair Consideration to Shareholders" shall, with
respect to any particular Business Combination, mean that the
terms of such Business Combination satisfy all of the following
conditions of this paragraph (C)(10).
(a) The aggregate amount of cash and the Fair Market Value
of consideration other than cash to be received per
share by holders of Common Stock in such Business
Combination as of the date of the consummation of the
Business Combination shall be at least equal to the
highest amount determined under the following clauses
(i), (ii) and (iii) of this paragraph (C)(10)(a):
(i) the highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on behalf
of the Acquirer, if any, for any share of
Common Stock in connection with the acquisition
by the Acquirer of beneficial ownership of such
share (x) within the two-year period
immediately prior to the first public
announcement of the proposal of the Business
Combination (the "Announcement Date") or (y) in
the transaction in which it became an Acquirer,
whichever is higher;
(ii) the Fair Market Value per share of the Common
Stock on the Announcement Date or on the date
on which the Acquirer became an Acquirer,
whichever is higher; and
(iii) the price per share equal to the Fair Market
Value per share of the Common Stock determined
pursuant to clause (ii) of this paragraph
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(C)(10)(a) multiplied by the ratio of (x) the
highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees), if any, as
determined pursuant to clause (i) of this
paragraph (C)(10)(a), to (y) the Fair Market
Value per share of the Common Stock on the
first day of the two-year period immediately
prior to the Announcement Date on which the
Acquirer acquired beneficial ownership of any
share of Common Stock.
(b) The aggregate amount of cash and the Fair Market Value
as of the date of the consummation of the Business
Combination of consideration other than cash to be
received per share by holders of Preferred Stock in such
Business Combination shall:
(i) in the case of any class or classes or series
of Preferred Stock which is, by its terms, then
convertible into Common Stock, be equal to the
consideration per share which would be received
if such Preferred Stock were converted into
Common Stock immediately prior to the
consummation of the Business Combination at the
then applicable conversion rate; and
(ii) in the case of any class or classes or series
of Preferred Stock other than those referred to
in clause (i) of this paragraph (C)(10)(b),
either (x) the highest preferential amount to
which the holders of shares of such class or
classes or series of Preferred Stock would be
entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding
up of the affairs of the Corporation as of the
date of the consummation of such Business
Combination, regardless of whether the Business
Combination to be consummated constitutes such
an event, or (y) the highest price per share,
if any, at which the Corporation is permitted,
pursuant to provisions with respect to optional
redemptions, or is required, pursuant to
provisions with respect to mandatory
redemptions, to redeem any of the shares of
such class or classes or series of Preferred
Stock as of the date of the consummation of
such Business Combination, whichever is higher.
(c) The consideration to be received by holders of a
particular class or series of outstanding Common Stock
or Preferred Stock shall be in cash or in the same form
as previously has been paid by or on behalf of the
Acquirer in connection with its direct or indirect
acquisition of beneficial ownership of shares of Common
Stock. If the consideration so paid for shares of Common
Stock varied as to form, the form of consideration for
shares of such class or series of Common Stock or
Preferred Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number of
shares of Common Stock previously acquired by the
Acquirer.
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(11) The term "Fair Market Value" means (a) in the case of stock,
the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such
stock on the Composite Tape for New York Stock Exchange-Listed
Stocks, or, if such stock is not listed on such Exchange, on
the principal United States securities exchange registered
under the Exchange Act on which such stock is listed, or, if
such stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock
during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated
Quotations System or any substantially equivalent system then
in use, or, if no such quotations are available, the Fair
Market Value on the date in question of a share of such stock
as determined by a majority of the Unrelated Directors; and (b)
in the case of property other than cash or stock, the Fair
Market Value of such property on the date in question as
determined by a majority of the Unrelated Directors. Any such
determination by the Unrelated Directors shall only be
effective if made at a meeting at which an Unrelated Director
Quorum is present.
In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash
to be received" as used in conjunction with the term Fair
Market Value in para- graph (C)(10) of this Article TENTH shall
include the shares of Common Stock or the shares of any other
class of Voting Stock to be retained by the holders of such
shares.
(12) The term "person" shall mean any individual, firm, corporation
or other entity and shall include any group comprised of any
person and any other person with whom such person or any
Affiliate or Associate of such person has any agreement,
arrangement or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of
beneficial ownership of Voting Stock of the Corporation.
(13) The term "Preferred Stock" shall mean those authorized and
issued shares of capital stock of the Corporation referred to
as preferred shares or Preferred Stock in Article FOURTH of
these Articles of Incorporation.
(14) The term "Proxy Statement" means a proxy or information
statement complying with the requirements of the Exchange Act
and the rules and regulations thereunder, or any subsequent
provisions replacing such Act, rules or regulations.
(15) The term "Special Shareholder Vote" shall mean (a) the
affirmative vote of seventy-five percent (75%) of the votes
entitled to be cast by all holders of Voting Stock, voting
together as a class, and (b) the affirmative vote of
sixty-seven percent (67%) of the votes entitled to be cast by
all holders of Voting Stock other than the Acquirer and its
Affiliates or Associates, voting together as a single class;
provided, that, in the event that it is judicially determined
that the requirement for the affirmative vote provided for in
clause (b) of this paragraph (C)(15) is, for any reason,
invalid under applicable law, then the term "Special
Shareholder Vote" shall mean only the requirement for the
affirmative
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vote provided for in clause (a) of this paragraph (C)(15).
However, no Special Shareholder Vote will be effective for the
purposes of this Article TENTH unless a Proxy Statement
describing the Business Combination shall have been mailed to
all holders of Voting Stock at least 30 days prior to the date
fixed for the Special Shareholder Vote (regardless of whether
or not such Proxy Statement is required to be furnished to the
shareholders of the Corporation pursuant to the Exchange Act.
(16) The term "Subsidiary" or "Subsidiaries" shall mean any
corporation or corporations of which a majority of any class of
equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Acquirer set forth in paragraph (C)(1), the term
"Subsidiary" or "Subsidiaries" shall mean only a corporation of
which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
(17) The term "Voting Stock" shall mean all of the shares of capital
stock of the Corporation authorized to be issued from time to
time under these Articles of Incorporation and outstanding as
of any particular time which are generally entitled to vote
with respect to the election of directors.
(D) A majority of the Unrelated Directors acting at a meeting at which an
Unrelated Director Quorum is present shall have the power and duty to
determine for the purposes of this Article TENTH, on the basis of
information known to them after reasonable inquiry, (1) whether a
person is an Acquirer, (2) the number of shares of Voting Stock
beneficially owned by any person, (3) whether a person is an Affiliate
or Associate of another, and (4) whether the assets that are the
subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation
or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $10,000,000 or more. Any such determination made in
good faith shall be binding and conclusive on all parties.
(E) Nothing contained in this Article TENTH shall be construed to relieve
any Acquirer from any fiduciary obligation imposed by law.
(F) The fact that any Business Combination complies with the provisions of
paragraph (B) of this Article TENTH shall not be construed to impose
any fiduciary duty, obligation or responsibility on the Board, or any
member thereof, to approve such Business Combination or recommend its
adoption or approval to the shareholders of the Corporation, nor shall
such compliance limit, prohibit or otherwise restrict in any manner
the Board, or any member thereof, with respect to evaluation of or
actions and responses taken with respect to such Business Combination.
(G) Notwithstanding any other provisions of these Articles of
Incorporation or the Regulations of the Corporation (and
notwithstanding the fact that a lesser percentage or separate class
vote may be specified by law, these Articles of Incorporation or the
Regulations of the Corporation), the affirmative vote of the holders
of eighty-five percent (85%) or more of the
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votes entitled to be cast by all holders of Voting Stock, voting
together as a single class, shall be required to amend or repeal, or
adopt any provisions inconsistent with, this Article TENTH; provided,
that, this paragraph (G) shall not apply to, and such eighty-five
percent (85%) vote shall not be required for, any amendment, repeal or
adoption unanimously recommended by the Board of the Corporation if
all of the directors are persons who would be eligible to serve as
Unrelated Directors within the meaning of paragraph (C)(7) of this
Article TENTH.
ELEVENTH: No Person shall make a Control Share Acquisition without the prior
authorization of the Corporation's shareholders.
(A) In order to obtain authorization of a Control Share Acquisition by the
Corporation's shareholders, a Person shall deliver a notice (the
"Notice") to the Corporation at its principal place of business that
sets forth all of the following information:
(1) The identity of the Person who is giving the Notice;
(2) A statement that the Notice is given pursuant to this Article
ELEVENTH;
(3) The number and class of shares of the Corporation owned,
directly or indirectly, by the Person who gives the Notice;
(4) The range of voting power under which the proposed Control
Share Acquisition would, if consummated, fall;
(5) A description in reasonable detail of the terms of the proposed
Control Share Acquisition; and
(6) Representations, supported by reasonable evidence, that the
proposed Control Share Acquisition, if consummated, would not
be contrary to law and that the Person who is giving the Notice
has the financial capacity to make the proposed Control Share
Acquisition.
(B) The Board of Directors of the Corporation shall, within ten (10) days
after receipt by the Corporation of a Notice that complies with
paragraph (A), call a special meeting of shareholders to be held not
later than fifty (50) days after receipt of the Notice by the
Corporation, unless the Person who delivered the Notice agrees to a
later date, to consider the proposed Control Share Acquisition;
provided that the Board of Directors shall have no obligation to call
such meeting if they make a determination within ten (10) days after
receipt of the Notice (i) that the Notice was not given in good faith,
(ii) that the proposed Control Share Acquisition would not be in the
best interests of the Corporation and its shareholders or (iii) that
the Person who delivered the Notice has failed to adequately
demonstrate that such Person has the financial capacity to make the
proposed Control Share Acquisition or that the proposed Control Share
Acquisition would not be contrary to law if consummated. The Board
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of Directors may adjourn such meeting if, prior to such meeting, (i)
the Corporation has received a Notice from any other Person or (ii) a
merger, consolidation or sale of assets of the Corporation has been
approved by the Board of Directors and the Board of Directors has
determined that the Control Share Acquisition proposed by such other
Person or the merger, consolidation or sale of assets of the
Corporation should be presented to shareholders at an adjourned
meeting or at a special meeting held at a later date.
For purposes of making a determination that a special meeting of
shareholders should not be called pursuant to this paragraph (B), no
such determination shall be deemed void or voidable with respect to
the Corporation merely because one or more of its directors or
officers who participated in making such determination may be deemed
to be other than disinterested, if in any such case the material facts
of the relationship giving rise to a basis for self-interest are known
to the directors and the directors, in good faith reasonably justified
by the facts, make such determination by the affirmative vote of a
majority of the disinterested directors, even though the disinterested
directors constitute less than a quorum. For purposes of this
paragraph, "disinterested directors" shall mean directors whose
material contacts with the Corporation are limited principally to
activities as a director or shareholder. Persons who have substantial,
recurring business or professional contacts with the Corporation shall
not be deemed to be "disinterested directors" for purposes of this
provision. A director shall not be deemed to be other than a
"disinterested director" merely because he would no longer be a
director if the proposed Control Share Acquisition were approved and
consummated.
(C) The Corporation shall give notice of such special meeting to all
shareholders of record as of the record date set for such meeting as
promptly as practicable. Such notice shall include or be accompanied
by a copy of the Notice and by a statement of the Corporation,
authorized by the Board of Directors, of its position or
recommendation, or that it is taking no position or making no
recommendation, with respect to the proposed Control Share
Acquisition.
(D) The Person who delivered the Notice may make the proposed Control
Share Acquisition if both the following occur: (i) the shareholders of
the Corporation authorize such acquisition at the special meeting
called by the Board of Directors and held for that purpose, and at
which a quorum is present, by an affirmative vote of a majority of the
Voting Shares represented at such meeting in person or by proxy and by
a majority of the portion of such Voting Shares represented at such
meeting in person or by proxy excluding the votes of Interested
Shares; and (ii) such acquisition is consummated, in accordance with
the terms so authorized, not later than 360 days following such
shareholder authorization of the Control Share Acquisition.
(E) Shares issued or transferred to any Person in violation of this
Article ELEVENTH shall be valid only with respect to such amount of
shares as does not result in a violation of this Article ELEVENTH, and
such issuance or transfer shall be null and void with respect to the
remainder of such shares (any such remainder of shares being
hereinafter called "Excess Shares"). If the second clause of the
foregoing sentence is determined to be invalid by virtue of any legal
decision, statute, rule or regulation, any Person who holds Excess
Shares in violation of this Article ELEVENTH shall be conclusively
deemed to have acted as an agent on behalf of the
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Corporation in acquiring such Excess Shares and to hold such Excess
Shares on behalf of the Corporation. While held by any Person in
violation of this Article ELEVENTH, Excess Shares shall not be
entitled to any voting rights, shall not be considered to be
outstanding for quorum or voting purposes, and shall not be entitled
to receive dividends or any other distribution with respect to such
Excess Shares. Any such Person who receives dividends or any other
distribution with respect to Excess Shares shall hold the same as
agent for the Corporation and, following a permitted transfer, for the
transferee thereof. Notwithstanding the foregoing, any holder of
Excess Shares may transfer the same (together with any distributions
thereon) to any Person who, following such transfer, would not own
shares in violation of this Article ELEVENTH. Upon such permitted
transfer, the Corporation shall pay or distribute to the transferee
any dividends or other distributions on the Excess Shares not
previously paid or distributed.
(F) As used in this Article ELEVENTH:
(1) "Person" includes, without limitation, an individual, a
corporation (whether nonprofit or for profit), a partnership,
an unincorporated society or association, and two or more
persons having a joint or common interest.
(2) (a) "Control Share Acquisition" means the acquisition,
directly or indirectly, by any Person of shares of the
Corporation that, when added to all other shares of the
Corporation in respect of which such Person may exercise
or direct the exercise of voting power as provided in
this paragraph (F)(2)(a), would entitle such Person,
immediately after such acquisition, directly or
indirectly to exercise or direct the exercise of voting
power of the Corporation in the election of directors
within any of the following ranges of such voting power:
(i) One-fifth or more but less than one-third of
such voting power;
(ii) One-third or more but less than a majority of
such voting power;
(iii) A majority or more of such voting power.
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 this 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 this Article ELEVENTH. For purposes of this
Article ELEVENTH, the acquisition of securities
immediately convertible into shares of the Corporation
with voting power in the election of directors shall be
treated as an acquisition of such shares.
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<PAGE> 32
(b) The acquisition of any shares of the Corporation does
not constitute a Control Share Acquisition for the
purpose of this Article ELEVENTH if the acquisition is
consummated in any of the following circumstances.
(i) By underwriters, in good faith and not for the
purpose of circumventing this Article ELEVENTH,
in connection with an offering of the
securities of the Corporation to the public;
(ii) By bequest or inheritance, by operation of law
upon the death of any individual, or by any
other transfer without valuable consideration,
including a gift, that is made in good faith
and not for the purpose of circumventing this
Article ELEVENTH;
(iii) Pursuant to the satisfaction of a pledge or
other security interest created in good faith
and not for the purpose of circumventing this
Article ELEVENTH;
(iv) Pursuant to a merger or consolidation adopted,
or a combination or majority share acquisition
authorized, by shareholder vote in compliance
with the provisions of Article TENTH of these
Articles of Incorporation and Section 1701.78
or Section 1701.83 of the Ohio Revised Code if
the Corporation is the surviving or new
corporation in the merger or consolidation or
is the acquiring corporation in the combination
or majority share acquisition and if the vote
of shareholders of the surviving, new, or
acquiring corporation is required by the
provisions of Section 1701.78 or 1701.83 of the
Ohio Revised Code;
(v) Prior to April 18, 1989; or
(vi) Pursuant to a contract existing prior to April
18, 1989.
The acquisition by any Person of shares of the
Corporation in a manner described under this paragraph
(F)(2)(b) shall be deemed to be a Control Share
Acquisition authorized pursuant to this Article ELEVENTH
within the range of voting power under paragraph
(F)(2)(a)(i), (ii) or (iii) of this Article ELEVENTH
that such Person is entitled to exercise after such
acquisition, provided that, in the case of an
acquisition in a manner described under paragraph
(F)(2)(b)(ii) or (iii), the transferor of such shares to
such Person had previously obtained any authorization of
shareholders required under this Article ELEVENTH in
connection with such transferor's acquisition of shares
of the Corporation.
(c) The acquisition of shares of the Corporation in good
faith and not for the purpose of circumventing this
Article ELEVENTH, the acquisition of which (i) had
previously been authorized by shareholders in compliance
with this Article
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<PAGE> 33
ELEVENTH or (ii) would have constituted a Control Share
Acquisition but for paragraph (F)(2)(b), does not
constitute a Control Share Acquisition for the purpose
of this Article ELEVENTH unless such acquisition
entitles any Person, directly or indirectly, to exercise
or direct the exercise of voting power of the
Corporation in the election of directors in excess of
the range of such voting power authorized pursuant to
this Article ELEVENTH, or deemed to be so authorized
under paragraph (F)(2)(b).
(3) "Interested Shares" means Voting Shares with respect to which
any of the following Persons may exercise or direct the
exercise of the voting power:
(a) any Person whose Notice prompted the calling of the
meeting of shareholders;
(b) any officer of the Corporation elected or appointed by
the directors of the Corporation; and
(c) any employee of the Corporation who is also a director
of the Corporation.
(G) No proxy appointed for or in connection with the shareholder
authorization of a Control Share Acquisition pursuant to this Article
ELEVENTH is valid if it provides that it is irrevocable. No such proxy
is valid unless it is sought, appointed, and received both:
(1) In accordance with all applicable requirements of law; and
(2) Separate and apart from the sale or purchase, contract or
tender for sale or purchase, or request or invitation for
tender for sale or purchase, of shares of the Corporation.
(H) Proxies appointed for or in connection with the shareholder
authorization of a Control Share Acquisition pursuant to this Article
ELEVENTH shall be revocable at all times prior to the obtaining of
such shareholder authorization, whether or not coupled with an
interest.
(I) Notwithstanding any other provisions of these Articles of
Incorporation or the Regulations of the Corporation, as the same may
be in effect from time to time, or any provision of law that might
otherwise permit a lesser vote of the directors or shareholders, but
in addition to any affirmative vote of the directors or the holders of
any particular class or series of shares required by law, the Articles
of Incorporation or the Regulations of the Corporation, as the same
may be in effect from time to time, the affirmative vote of at least
eighty-five percent (85%) of the Voting Shares shall be required to
alter, amend or repeal this Article ELEVENTH or adopt any provisions
in the Articles of Incorporation or Regulations of the Corporation, as
the same may be in effect from time to time, that are inconsistent
with the provisions of this Article ELEVENTH.
(J) Each certificate representing shares of the Corporation's capital
stock shall contain the following legend:
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<PAGE> 34
"Transfer of the shares represented by this Certificate is
subject to the provisions of Article ELEVENTH of the Corpora-
tion's Articles of Incorporation as the same may be in effect
from time to time. Upon written request delivered to the
Secretary of the Corporation at its principal place of business,
the Corporation will mail to the holder of this Certificate a
copy of such provisions without charge within five (5) days after
receipt of written request therefor. By accepting this
Certificate the holder hereof acknowledges that it is accepting
same subject to the provisions of said Article ELEVENTH as the
same may be in effect from time to time and covenants with the
Corporation and each shareholder thereof from time to time to
comply with the provisions of said Article ELEVENTH as the same
may be in effect from time to time."
TWELFTH: The provisions of Section 1701.831 of the Ohio Revised Code, as
amended from time to time, or any successor provision or provisions to said
section, shall only apply to this Corporation with respect to any particular
Control Share Acquisition attempt, as such is defined in Section 1701.831 of
the Ohio Revised Code, in the event that there is a determination by a court of
competent jurisdiction with respect to which no appeal is pending that the
provisions of Article ELEVENTH of these Articles of Incorporation shall not be
applicable to a particular Control Share Acquisition attempt or in the event
that Article ELEVENTH of these Articles of Incorporation, as such Articles of
Incorporation may be amended from time to time, ceases to be an Article of
these Articles of Incorporation, disregarding any renumbering of such Article
ELEVENTH resulting from any amendment of these Articles of Incorporation.
Effective May 1, 1989
Amended (Paragraph (D1) of Article Fourth) - 3/21/91
Amended (First Paragraph of Article Fourth) - 4/21/92
Amended (First Paragraph of Article Fourth) - 6/26/97
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<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Amendment No. 1 on Form S-8
to the Registration Statement of BANC ONE CORPORATION on Form S-4 (File No.
333-26929) of our report dated February 21, 1997 on our audits of the
consolidated financial statements of BANC ONE CORPORATION as of December 31,
1996 and 1995, and for the years ended December 31, 1996, 1995, and 1994,
incorporated by reference in BANC ONE CORPORATION's Annual Report on Form 10-K
for the year ended December 31, 1996, as amended by Form 10-K/A filed on March
21, 1997.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Columbus, Ohio
June 30, 1997
