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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FIRST CHICAGO CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 36-2669970
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(State of incorporation or organization) (I.R.S. employer
identification no.)
One First National Plaza
Chicago, Illinois 60670
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(Address of principal executive offices) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class
to be so registered is to be registered
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% Exchangeable Notes New York Stock Exchange, Inc.
Due February __, 1997
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Securities to be registered pursuant to Section 12(g) of the Act: None
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Item 1. Description of Registrant's Securities to be Registered
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A description of the Registrant's ______% Exchangeable Notes Due
February __, 1997 to be registered hereby is contained under the
caption "Description of the DECS" set forth in the Registrant's
Preliminary Prospectus Supplement dated February 1, 1994, to a
Prospectus dated November 4, 1993, filed as part of the Registrant's
Registration Statement on Form S-3 (Registration No. 33-65904), which
description is incorporated herein by reference. The definitive
description of such securities will be contained in the definitive
Prospectus Supplement which will be filed pursuant to Rule 424(b) under
the Securities Act, as amended, and which shall be deemed to be
incorporated by reference herein.
Item 2. Exhibits
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(1) Form of Indenture dated as of May 1, 1990, between the Company and
Norwest Bank Minnesota, National Association, as trustee
(incorporated by reference to Exhibit 4(c) to the Company's
Registration Statement on Form S-3 (No. 33-34988)).
(2) Form of First Supplemental Indenture, dated as of February 1,
1994, between the Company and Norwest Bank Minnesota, National
Association, as trustee.
(3) Form of _____% Exchangeable Note Due February __, 1997.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
FIRST CHICAGO CORPORATION
By: /s/ David P. Bolger
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David P. Bolger
Senior Vice President and
Treasurer
Date: February 2, 1994
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EXHIBIT INDEX
Exhibit Number Description Page
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2 Form of First Supplemental Indenture, dated as of
February 1, 1994, between the Company and Norwest
Bank Minnesota, National Association
3 Form of _____% Exchange Note Due February __, 1997.
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EXHIBIT 2
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FIRST CHICAGO CORPORATION
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
____________
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 1, 1994
____________
SENIOR DEBT SECURITIES
Supplemental to Indenture dated as of May 1, 1990
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FIRST SUPPLEMENTAL INDENTURE dated as of February 1, 1994 (this
"Supplemental Indenture"), made and entered into by and between FIRST CHICAGO
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware having its principal office at One First National Plaza, Chicago,
Illinois 60670(the "Company"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
a national banking association having its principal corporate trust office at
Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479, as trustee (the
"Trustee").
WHEREAS the Company entered into an Indenture dated as of May 1, 1990 (the
"Basic Indenture") with the Trustee, for the purposes of issuing its unsecured
notes to be issued in one or more series (the "Notes"), in such principal amount
or amounts as may from time to time be authorized by or pursuant to the
authority granted in one or more resolutions of the Board of Directors of the
Company; and
WHEREAS the Company proposes to issue a series of Notes denominated its
"_______% Exchangeable Notes due February __, 1997" representing ____________
of its "Debt Exchangeable for Common Stock(SM)" (such Securities being referred
to herein as the "DECS(SM)"), the principal amount at Maturity of which is
mandatorily exchangeable into shares of Class A Common Stock, par value $.001
per share ("NEXTEL Common Stock"), of NEXTEL Communications, Inc.("NEXTEL"), or,
at the option of the Company, cash, in either case at the Exchange Rate as
described herein; and
WHEREAS Sections 9.01(iv) and (viii) of the Basic Indenture provide that
without the consent of the Holders of Notes, the Company, when authorized by
Board Resolution, and the Trustee may enter into one or more indentures
supplemental to the Basic Indenture (a) to establish the form or terms of Notes
of any series as permitted by Sections 2.01 and 3.01 thereof, and (b) to cure
any ambiguity, to correct or supplement any provision in the Basic Indenture
which may be inconsistent with any other provision of the Basic Indenture or to
make any other provisions with respect to matters or questions arising under the
Basic Indenture, provided that such action shall not adversely affect the
interests of the Holders of Notes of any series or any related coupons in any
material respect; and
WHEREAS the entry into this Supplemental Indenture by the parties hereto is
in all respects authorized by the provisions of the Basic Indenture; and
WHEREAS all things necessary to make this Supplemental Indenture a valid
agreement of the Company in accordance with its terms have been done:
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NOW, THEREFORE:
For and in consideration of the premises and purchase of the Notes by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, without preference, priority or
distinction of any of the Notes over any of the others by reason of difference
in series or priority in time of issuance, negotiation or maturity thereof, or
otherwise except as otherwise provided in the Basic Indenture or this
Supplemental Indenture, as follows:
SECTION 1. The Basic Indenture is hereby amended by amending Section 3.01
of the Basic Indenture by (i) adding as a new subsection (xvi) the following:
"(xvi) the obligation, if any, of the Company to permit the conversion or
exchange of the Notes of such series into other securities (whether or not
issued by, or the obligation of, the Company), and the terms and conditions upon
which such conversion or exchange shall be effected (including, without
limitation, the initial conversion or exchange price or rate, the conversion or
exchange period and any other provision in addition to or in lieu of those set
forth in this Indenture relative to such obligation; and"; and by (ii)
renumbering current subsection (xvi) of Section 3.01 to subsection (xvii).
SECTION 2. The Basic Indenture is hereby amended, solely with respect to a
series of Notes that consists of DECS, as follows:
(a) By amending Section 1.01 to add new definitions thereto, in the
appropriate alphabetical sequence, as follows:
"Closing Price" has the meaning specified in Section 15.01.
"Extraordinary Cash Dividend" has the meaning specified in Section 15.03.
"Initial Price" has the meaning specified in Section 15.01.
"Maturity Price" has the meaning specified in Section 15.01.
"NEXTEL" has the meaning specified in Section 15.01.
"NEXTEL Common Stock" has the meaning specified in Section 15.01.
"NEXTEL Successor" has the meaning specified in Section 15.03.
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"NYSE" has the meaning specified in Section 15.01.
"Reorganization Event" has the meaning specified in Section 15.03.
"Threshold Appreciation Price" has the meaning specified in Section 15.01.
"Trading Day" has the meaning specified in Section 15.01.
"Transaction Value" has the meaning specified in Section 15.03.
(b) By amending Section 9.02(i) of the Basic Indenture by adding to the
end thereof the following: "or change the terms under which the DECS are
exchangeable as set forth in Article Fifteen".
(c) By adding the following Article Fifteen:
"ARTICLE FIFTEEN
EXCHANGE OF DECS
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SECTION 15.01. Exchange at Maturity. At Maturity, the principal
amount payable with respect to each DECS shall be automatically and
mandatorily exchanged into a number of shares of Class A Common Stock, par
value $.001 ("NEXTEL Common Stock"), of NEXTEL Communications, Inc.
("NEXTEL") at the Exchange Rate (as defined below). As a result, Holders
of the DECS may not receive a payment representing the principal amount of
such DECS. The "Exchange Rate" is equal to, subject to adjustment as a
result of certain dilution events relating to the NEXTEL Common Stock as
provided for in Section 15.03, (a) if the Maturity Price (as defined below)
is greater than or equal to $_________ per share of NEXTEL Common Stock
(the "Threshold Appreciation Price"), _______ shares of NEXTEL Common Stock
per DECS, (b) if the Maturity Price is less than the Threshold Appreciation
Price but is greater than $_________ per share of NEXTEL Common Stock (the
"Initial Price"), a fractional share of NEXTEL Common Stock per DECS so
that the value thereof (determined at the Maturity Price) is equal to the
Initial Price (such fractional share being calculated to the nearest
1/10,000th of a share or, if there is not a nearest 1/10,000th of a share,
to the next highest 1/10,000th of a share) and (c) if the Maturity Price
is less than or equal to the Initial Price, one share of NEXTEL Common
Stock per DECS. No fractional shares of NEXTEL Common Stock will be issued
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at Maturity as provided in Section 15.02. Notwithstanding the foregoing,
the Company may, at its option in lieu of delivering shares of NEXTEL
Common Stock, deliver cash in an amount (calculated to the nearest 1/100th
of a dollar per DECS or, if there is not a nearest 1/100th of a dollar,
then to the next higher 1/100th of a dollar) equal to the value of such
number of shares of NEXTEL Common Stock at the Maturity Price. In
determining the amount of cash deliverable in exchange for the DECS in lieu
of shares of NEXTEL Common Stock pursuant to the prior sentence hereof, if
more than one DECS shall be surrendered for exchange at one time by the
same Holder, the amount of cash which shall be delivered upon exchange
shall be computed on the basis of the aggregate number of DECS so
surrendered at Maturity.
The "Maturity Price" is defined as the average Closing Price per share
of NEXTEL Common Stock on the 20 Trading Days immediately prior to, but not
including, the Maturity date. The "Closing Price" of any security on any
date of determination means the closing sale price (or, if no closing price
is reported, the last reported sale price) of such security on the New York
Stock Exchange (the "NYSE") on such date or, if such security is not listed
for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which
such security is so listed, or if such security is not so listed on a
United States national or regional securities exchange, as reported by the
National Association of Securities Dealers, Inc. Automated Quotation
System, or, if such security is not so reported, the last quoted bid price
for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization, or, if such bid price is
not available, the market value of such security on such date as determined
by a nationally recognized independent investment banking firm retained for
this purpose by the Company. A "Trading Day" is defined as a day on which
the security the Closing Price of which is being determined (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of such security.
SECTION 15.02. No Fractional Shares. No fractional shares or script
representing fractional shares of NEXTEL Common Stock shall be issued or
delivered upon the exchange at Maturity of any DECS. If more than one DECS
shall be surrendered for exchange at one time by the same Holder, the
number of full shares of NEXTEL Common Stock which shall be delivered upon
exchange, in whole or in part, as the case
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may be, shall be computed on the basis of the aggregate number of DECS so
surrendered at Maturity. Instead of any fractional share of NEXTEL Common
Stock which would otherwise be deliverable upon exchange of any DECS at
Maturity, the Company, through any applicable Paying Agent, shall make a
cash payment in respect of such fractional interest in an amount equal to
the value of such fractional shares at the Maturity Price. The Company
shall, upon exchange of any DECS, provide cash to any applicable Paying
Agent in an amount equal to the cash payable with respect to any fractional
shares of NEXTEL Common Stock deliverable upon exchange of such DECS, and
the Company shall retain such fractional shares of NEXTEL Common Stock.
SECTION 15.03. Adjustment of Exchange Rate. (a) Adjustment for
Distributions, Reclassifications, etc. The Exchange Rate shall be subject
to adjustment from time to time as follows:
(i) If NEXTEL shall:
(A) pay a dividend or make a distribution with respect to
the NEXTEL Common Stock in shares of such stock;
(B) subdivide or split the outstanding shares of NEXTEL
Common Stock into a greater number of shares;
(C) combine the outstanding shares of NEXTEL Common Stock
into a smaller number of shares; or
(D) issue by reclassification of shares of NEXTEL Common
Stock any shares of common stock of NEXTEL;
then, in any such event, the Exchange Rate in effect immediately prior
to such event shall each be adjusted so that the holder of any DECS
shall thereafter be entitled to receive, upon mandatory exchange of
the principal amount of such DECS at Maturity, as set forth in Section
15.01, the number of shares of NEXTEL Common Stock which such holder
would have owned or been entitled to receive immediately following any
event described above had such DECS been exchanged immediately prior
to such event or any record date with respect thereto. Each such
adjustment shall become effective at the opening of business on the
Business Day next following the record date for determination of
holders of NEXTEL Common Stock entitled to receive such dividend or
distribution in the case of a dividend or
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distribution and shall become effective immediately after the
effective date in the case of a subdivision, split, combination or
reclassification. Each such adjustment shall be made successively.
(ii) If NEXTEL shall, after the date hereof, issue rights or
warrants to all holders of NEXTEL Common Stock entitling them to
subscribe for or purchase shares of NEXTEL Common Stock (other than
rights to purchase NEXTEL Common Stock pursuant to a plan for the
reinvestment of dividends or interest) at a price per share less than
the current market price of NEXTEL Common Stock (determined for
purposes of this clause (ii) as the average Closing Price per share of
NEXTEL Common Stock on the 20 Trading Days immediately prior to the
date such rights or warrants are issued), then in each case the
Exchange Rate shall be adjusted by multiplying the Exchange Rate in
effect immediately prior to the date of issuance of such rights or
warrants, by a fraction, of which the numerator shall be the number of
shares of NEXTEL Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such issuance, plus the
number of additional shares of NEXTEL Common Stock offered for
subscription or purchase pursuant to such rights or warrants, and of
which the denominator shall be the number of shares of NEXTEL Common
Stock outstanding on the date of issuance of such rights or warrants,
immediately prior to such issuance, plus the number of additional
shares of NEXTEL Common Stock which the aggregate offering price of
the total number of shares of NEXTEL Common Stock so offered for
subscription or purchase pursuant to such rights or warrants would
purchase at such current market price (calculated as the average
Closing Price per share of NEXTEL Common Stock on the 20 Trading Days
immediately prior to the date such rights or warrants are issued),
which shall be determined by multiplying such total number of shares
by the exercise price of such rights or warrants and dividing the
product so obtained by such current market price. Such adjustment
shall become effective at the opening of business on the Business Day
next following the record date for the determination of stockholders
entitled to receive such rights or warrants. To the extent that
shares of NEXTEL Common Stock are not delivered after the expiration
of such rights or warrants, the Exchange Rate shall be readjusted to
the Exchange Rate which would then be in effect had such adjustments
for the issuance of such rights or warrants been made upon the basis
of delivery of only the number of shares of
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NEXTEL Common Stock actually delivered. Each such adjustment shall be
made successively.
(iii) If NEXTEL shall pay a dividend or make a distribution to
all holders of NEXTEL Common Stock of evidences of its indebtedness or
other assets (excluding any dividends or distributions referred to in
subparagraph (i) above or any ordinary periodic cash dividends that do
not constitute Extraordinary Cash Dividends (as defined in clause (vi)
below)) or shall issue to all holders of NEXTEL Common Stock rights or
warrants to subscribe for or purchase any of its securities (other
than those referred to in subparagraph (ii) above), then in each such
case, the Exchange Rate shall be adjusted by multiplying the Exchange
Rate in effect on the record date mentioned below, by a fraction of
which the numerator shall be the current market price per share of the
NEXTEL Common Stock on the record date for the determination of
stockholders entitled to receive such dividend or distribution (such
current market price being determined for purposes of this clause
(iii) as the average Closing Price per share of NEXTEL Common Stock on
the 20 Trading Days immediately prior to such record date), and of
which the denominator shall be such current market price per share of
NEXTEL Common Stock less the fair market value (as determined by the
Board of Directors of the Company, whose determination shall be
conclusive, and described in a resolution adopted with respect
thereto) as of such record date of the portion of the assets or
evidences of indebtedness so distributed or of such subscription
rights or warrants applicable to one share of NEXTEL Common Stock.
Each such adjustment shall become effective on the opening of business
on the Business Day next following the record date for the
determination of stockholders entitled to receive such dividend or
distribution. Each such adjustment shall be made successively.
(iv) Any shares of NEXTEL Common Stock issuable in payment of a
dividend shall be deemed to have been issued immediately prior to the
close of business on the record date for such dividend for purposes of
calculating the number of outstanding shares of NEXTEL Common Stock
under subparagraph (ii) above.
(v) All adjustments to the Exchange Rate shall be calculated to
the nearest 1/10,000th of a share of NEXTEL Common Stock (or if there
is not a nearest 1/10,000th of a share to the next lower 1/10,000th of
a share). No adjustment in the Exchange Rate shall be required unless
such adjustment would require an
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increase or decrease of at least one percent therein; provided,
however, that any adjustments which by reason of this subparagraph are
not required to be made shall be carried forward and taken into
account in any subsequent adjustment. If an adjustment is made to the
Exchange Rate pursuant to subparagraph (i), (ii) or (iii) of this
Section 15.03(a), an adjustment shall also be made to the Maturity
Price solely to determine which of paragraphs (a), (b) or (c) of the
definition of Exchange Rate in Section 15.01 will apply at Maturity.
The required adjustment shall be determined by multiplying the
Maturity Price by the number determined under subparagraph (i), (ii)
or (iii) by which the then existing Exchange Rate was multiplied to
adjust such rate. This subparagraph (v) shall be so used to adjust
the definition of Maturity Price only as such term is used for the
first time in each of subparagraphs (a), (b) and (c) of the definition
of Exchange Rate.
(vi) For purposes of the foregoing, the term "Extraordinary Cash
Dividend" shall mean, with respect to any consecutive 365-day period,
any cash dividend with respect to NEXTEL Common Stock the amount of
which, together with the aggregate amount of all other such cash
dividends on the NEXTEL Common Stock occurring in such 365-day period,
exceeds on a per share basis 10% of the average of the Closing Prices
per share of the NEXTEL Common Stock over such 365-day period, and for
purposes of applying the formula set forth in clause (iii) above, the
fair market value of such dividends being calculated pursuant to such
clause (iii) shall be equal to (x) the aggregate amount of such cash
dividend together with the amounts of such other cash dividends
occurring in such period minus (y) the aggregate amount of such other
cash dividends occurring in such period for which a prior adjustment
in the Exchange Rate was previously made under this Section 15.03(a).
In making the determinations required by the foregoing sentence, the
amount of cash dividends paid on a per share basis shall be
appropriately adjusted to reflect the occurrence during such period of
any event described in Section 15.03(a).
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event. In the event of (i) any consolidation or merger of NEXTEL, or any
surviving entity or subsequent surviving entity of NEXTEL (a "NEXTEL
Successor"), with or into another entity (other than a merger or
consolidation in which NEXTEL is the continuing corporation and in which
the NEXTEL Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash,
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securities or other property of NEXTEL or another corporation), (ii) any
sale, transfer, lease or conveyance to another corporation of the property
of NEXTEL or any NEXTEL Successor as an entirety or substantially as an
entirety, (iii) any statutory exchange of securities of NEXTEL or any
NEXTEL Successor with another corporation (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up
of NEXTEL or any NEXTEL Successor (any such event, a "Reorganization
Event"), the Exchange Rate used to determine the amount payable upon
exchange at Maturity for each DECS will be adjusted to provide that each
holder of DECS will receive at Maturity cash in an amount equal to (a) if
the Transaction Value (as defined below) is greater than or equal to the
Threshold Appreciation Price, _______ multiplied by the Transaction Value,
(b) if the Transaction Value is less than the Threshold Appreciation Price
but greater than the Initial Price, the Initial Price and (c) if the
Transaction Value is less than or equal to the Initial Price, the
Transaction Value. "Transaction Value" means (x) for any cash received in
any such Reorganization Event, the amount of cash received per share of
NEXTEL Common Stock, (y) for any property other than cash or securities
received in any such Reorganization Event, an amount equal to the market
value at Maturity of such property received per share of NEXTEL Common
Stock as determined by a nationally recognized independent investment
banking firm retained for this purpose by the Company and (z) for any
securities received in any such Reorganization Event, an amount equal to
the average Closing Price per share of such securities on the 20 Trading
Days immediately prior to Maturity, multiplied by the number of such
securities received for each share of NEXTEL Common Stock. Notwithstanding
the foregoing, in lieu of delivering cash as provided above, the Company
may at its option deliver an equivalent value of securities or other
property received in such Reorganization Event, determined in accordance
with clause (y) or (z) above, as applicable. The kind and amount of
securities into which the DECS shall be exchangeable after consummation of
such transaction shall be subject to adjustment as described in paragraph
(a) above following the date of consummation of such transaction.
SECTION 15.04. Notice of Adjustments and Certain Other Events. (a)
Whenever the Exchange Rate is adjusted as herein provided, the Company
shall:
(i) forthwith compute the adjusted Exchange Rate in accordance
with Section 15.03 and prepare a certificate signed by an officer of
the Company setting forth the adjusted Exchange Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such
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adjustment is based, which certificate shall be conclusive, final and
binding evidence of the correctness of the adjustment, and file such
certificate forthwith with the Trustee for the DECS; and
(ii) within 10 Business Days following the occurrence of an event
that permits or requires an adjustment to the Exchange Rate pursuant
to Section 15.03 (or if the Company is not aware of such occurrence,
as soon as practicable after becoming so aware), provide written
notice to the Trustee and to the Holders of the Outstanding DECS of
the occurrence of such event and a statement in reasonable detail
setting forth the method by which the adjustment to the Exchange Rate
was determined and setting forth the revised Exchange Rate per DECS.
(b) In case at any time while any of the DECS are outstanding the
Company receives notice that:
(i) NEXTEL shall declare a dividend (or any other distribution)
on or in respect of the NEXTEL Common Stock to which Section
15.03(a)(i) or (ii) shall apply (other than any cash dividends and
distributions, if any, paid from time to time by NEXTEL that do not
constitute Extraordinary Cash Dividends);
(ii) NEXTEL shall authorize the issuance to all holders of NEXTEL
Common Stock of rights or warrants to subscribe for or purchase shares
of NEXTEL Common Stock or of any other subscription rights or
warrants;
(iii) there shall occur any conversion or reclassification of
NEXTEL Common Stock (other than a subdivision or combination of
outstanding shares of such NEXTEL Common Stock) or any consolidation,
merger or reorganization to which NEXTEL is a party and for which
approval of any stockholders of NEXTEL is required, or the sale or
transfer of all or substantially all of the assets of NEXTEL; or
(iv) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of NEXTEL;
then the Company shall promptly cause to be delivered to the Trustee and
any applicable Paying Agent and filed at the office or agency maintained
for the purpose of exchange of DECS at Maturity in the Borough of
Manhattan, in The City of New York by the Trustee (or any applicable Paying
Agent), and shall promptly cause to be mailed to the Holders of DECS at
their last addresses as they shall appear upon the
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registration books of the Note Registrar, at least 10 days before the date
hereinafter specified (or the earlier of the dates hereinafter specified,
in the event that more than one is specified), a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or grant of rights or warrants, or, if a record is not to be
taken, the date as of which the holders of NEXTEL Common Stock of record to
be entitled to such dividend, distribution or grant of rights or warrants
are to be determined, or (y) the date, if known by the Company, on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective.
(c) On or prior to seven Business Days preceding the Stated Maturity
of the DECS, the Company will provide notice to the Holders of record of
the DECS and to the Trustee and will publish a notice in a daily newspaper
of national circulation stating whether the Company has irrevocably elected
to deliver NEXTEL Common Stock or cash (or any other property or securities
that may be delivered pursuant to Section 15.03(b)) upon the mandatory
exchange of the principal amount of the DECS in accordance with Section
15.01.
SECTION 15.05. Taxes. (a) The Company will pay any and all
documentary, stamp, transfer or similar taxes that may be payable in
respect of the transfer and delivery of NEXTEL Common Stock pursuant
hereto; provided, however, that the Company shall not be required to pay
any such tax which may be payable in respect of any transfer involved in
the delivery of NEXTEL Common Stock in a name other than that in which the
DECS so exchanged were registered, and no such transfer or delivery shall
be made unless and until the Person requesting such transfer has paid to
the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
(b) The parties hereto hereby agree, and each Holder of a DECS by its
purchase of a DECS hereby agrees:
(i) to treat, for U.S. federal income tax purposes, each DECS as
a unit (the "unit characterization") consisting of (A) a debt
obligation (the "Exchange Note") with a fixed principal amount and
issue price equal to the principal amount of the DECS, bearing
interest at the stated interest rate, and with the principal amount
unconditionally payable at Maturity, and (B) a purchase contract (the
"Purchase Contract") pursuant to which the Holder agrees to use the
principal payment due on the Exchange Note to purchase, at Maturity,
the NEXTEL Common Stock to which
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the Holder is entitled to receive at that time (subject to the
Company's right to deliver cash in lieu of such NEXTEL Common Stock),
which treatment will require, among other things, the Holder to
include in income as interest, in accordance with its method of
accounting, payments made with respect to the DECS that are
denominated as interest;
(ii) in the case of an initial purchase, to allocate the entire
purchase price of a DECS to the Exchange Note and to allocate no part
thereof to the Purchase Contract; and
(iii) to file all U.S. federal, state and local income and
franchise tax returns consistent with the unit characterization
(unless required otherwise by an applicable taxing authority).
SECTION 15.06. Shares Free and Clear. The Company hereby warrants
that upon exchange of a DECS at Maturity pursuant to this Indenture, the
Holder of a DECS shall receive all rights held by the Company in the NEXTEL
Common Stock for which such DECS is at such time exchangeable pursuant to
this Indenture, free and clear of any and all liens, claims, charges and
encumbrances other than any liens, claims, charges and encumbrances which
may have been placed on any NEXTEL Common Stock by the prior owner thereof,
prior to the time such NEXTEL Common Stock was acquired by the Company.
Except as provided in Section 15.05(a), the Company will pay all taxes and
charges with respect to the delivery of NEXTEL Common Stock delivered in
exchange for DECS hereunder. In addition, the Company further warrants
that any NEXTEL Common Stock so delivered in exchange for DECS hereunder
shall be free of any transfer restrictions (other than such as are solely
attributable to any Holder's status as an affiliate of NEXTEL).
SECTION 15.07. Cancellation of Security. Upon receipt by the Trustee
of DECS delivered to it for exchange under this Article Fifteen, the
Trustee shall cancel and dispose of the same as provided in Section 3.09.
SECTION 15.08. Limitations on Trading During Certain Days. The
Company hereby agrees that it will not, and it will cause each of its
Majority-Owned Subsidiaries (as defined below) not to, buy or sell shares
of NEXTEL Common Stock for their own account during the 20 Trading Days
prior to Stated Maturity of the DECS. For purposes hereof, "Majority-Owned
Subsidiary" with respect to the Company means a subsidiary more than 50% of
whose outstanding securities representing the right, other than as affected
by
13
<PAGE>
events of default, to vote for the election of directors, is owned by the
Company and/or one or more of the Company's other Majority-Owned
Subsidiaries."
(d) By amending the table of contents of the Basic Indenture to
reflect the additions described in subsections (a) and (c) of this Section 1.
SECTION 3. The Basic Indenture, as supplemented and amended by this
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Basic Indenture, this Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 4. If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Supplemental Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 5. All covenants and agreements in this Supplemental
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 6. In case any provision in this Supplemental Indenture or in
the Notes of any series shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions (or of the
other series of Securities) shall not in any way be affected or impaired
thereby.
SECTION 7. Nothing in this Supplemental Indenture, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders of each series of Notes any benefit or any
legal or equitable right, remedy or claim under this Supplemental Indenture.
SECTION 8. This Supplemental Indenture and each Note of any series
shall be deemed to be a contract made under the laws of the State of New York
and this Supplemental Indenture and each such Note shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. All terms used in this Supplemental Indenture not
otherwise defined herein that are defined in the Basic Indenture shall have the
meanings set forth therein.
SECTION 10. This Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
14
<PAGE>
SECTION 11. The recitals contained herein and in the Notes, except
the certificate of authentication of the Trustee thereon, shall be taken as
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of the Basic Indenture, this Supplemental Indenture or of the
Securities and shall not be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
FIRST CHICAGO CORPORATION
By: _______________________
David P. Bolger
Senior Vice President
and Treasurer
[Seal]
Attest:
__________________________
Assistant Secretary
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee,
By: ______________________
Name:
Title:
[Seal]
Attest:
__________________________
Name:
Title:
15
<PAGE>
STATE OF ILLINOIS)
) ss.:
COUNTY OF COOK )
On the day of _______________, 1994, before me personally
came David P. Bolger, to me known, who being by me duly sworn, did depose
and say that such person resides in Chicago, Illinois; that such person is
Senior Vice President and Treasurer of FIRST CHICAGO CORPORATION, one of
the corporations described in and which executed the above instrument; that
such person knows the corporate seal of said corporation; that one of the
seals affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and
that such person signed his or her name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[Notarial Seal]
Commission expires ______________
16
<PAGE>
STATE OF MINNESOTA)
) ss.:
COUNTY OF HENNEPIN)
On the day of ______________, 1994, before me personally
came , to me known, who being by me duly sworn, did depose
and say that such person resides in ______________, Minnesota; that such
person is of NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, one of the parties described in and which executed the above
instrument; that such person knows the corporate seal of said association;
that one of the seals affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
association, and that such person signed his or her name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[Notarial Seal]
Commission expires _____________
17
<PAGE>
EXHIBIT 3
REGISTERED
No. ________ CUSIP NO. _______________
Unless this note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS NOTE IS NOT A SAVINGS OR DEPOSIT ACCOUNT OR OTHER OBLIGATION OF A BANK
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
FIRST CHICAGO CORPORATION
_______ DECS(SM)
(Debt Exchangeable for Common Stock(SM))
% Exchangeable Note Due February __, 1997
(Subject to Exchange at Maturity into Shares of
Class A Common Stock, Par Value $.001 Per Share,
of NEXTEL Communications, Inc.)
FIRST CHICAGO CORPORATION, a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO. or registered assigns, the principal sum of ____________________ Dollars per
DECS (or __________ Dollars) on ________________, 199_ (subject to the mandatory
exchange provisions at maturity discussed below), and to pay interest (computed
on the basis of a 360-day year of twelve 30-day months) thereon quarterly on
______________, ______________, _______________ and _______________ in each
year (individually referred to as an "Interest Payment Date" and collectively
as the "Interest Payment Dates"), commencing ____________, 1994, and at
Maturity, at the rate per annum specified in the title of this note (referred
to herein as this "DECS") from ___________________, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
until the principal hereof is paid or made available for payment [(and, in the
case of a default in the payment of principal or interest, at the rate of
______% per annum on such overdue principal and (to the extent that the
payment of such interest shall be legally enforceable) on such overdue
interest which shall accrue from the date of such default to the date payment
of such principal or interest has been made or
<PAGE>
2
duly provided for)]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in said Indenture,
be paid to the Person in whose name this DECS (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date for such
interest, which shall be ____________, ____________, __________ or
_____________, as the case may be, next preceding such Interest Payment Date,
provided that interest payable at Maturity shall be payable to the person to
whom the principal hereof is payable. In any case where such Interest Payment
Date shall not be a Business Day, then (notwithstanding any other provision of
said Indenture or the DECS) payment of such interest need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on such date, and, if such payment is so made, no interest
shall accrue for the period from and after such date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holder on such Regular Record Date, and may either be paid to the
Person in whose name this DECS (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee for the DECS, notice whereof shall
be given to Holders of Notes not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the DECS may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
At Maturity, the foregoing principal amount of this DECS will be
mandatorily exchanged into a number of shares of Class A Common Stock, par value
$.001 per share ("NEXTEL Common Stock"), of NEXTEL Communications, Inc. at the
Exchange Rate (as defined below) and, as a result, the Holder of this DECS will
not necessarily receive an amount equal to the principal amount hereof. The
"Exchange Rate" is equal to, subject to adjustment as a result of certain
dilution events relating to the NEXTEL Common Stock as provided for in the
Indenture, (a) if the Maturity Price (as defined below) per share of NEXTEL
Common Stock is greater than or equal to $_____ per share of NEXTEL Common Stock
(the "Threshold Appreciation Price"), _____ shares of NEXTEL Common Stock per
DECS, (b) if the Maturity Price is less than the Threshold Appreciation Price
but is greater than $_____ per share of NEXTEL Common Stock (the "Initial
Price"), a fractional share of NEXTEL Common Stock per DECS so that the value
thereof (determined at the Maturity Price) is equal to the Initial Price and (c)
if the Maturity Price is less than or equal to the Initial Price, one share of
NEXTEL Common Stock per DECS. No fractional shares of NEXTEL Common Stock will
be issued at Maturity as provided in the Indenture. Notwithstanding the
foregoing, the Company may, at its option in lieu of delivering shares of NEXTEL
Common Stock, deliver cash in an amount equal to the value of such number of
shares of NEXTEL Common Stock at the Maturity Price.
The "Maturity Price" of the NEXTEL Common Stock is defined as the average
Closing Price per share of NEXTEL Common Stock on the 20 Trading Days
immediately prior to, but not including, Maturity. The "Closing Price" of any
security on any date of determination means the closing sale price (or, if no
closing price is reported, the last reported sale price) of such security on the
New York Stock Exchange (the "NYSE") on such date or, if such security is not
listed for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which
<PAGE>
3
such security is so listed, or if such security is not so listed on a United
States national or regional securities exchange, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System, or, if such
security is not so reported, the last quoted bid price for such security in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of such
security on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" is defined as a day on which the security the Closing Price of which is
being determined (A) is not suspended from trading on any national or regional
securities exchange or association or over-the-counter market at the close of
business and (B) has traded at least once on the national or regional securities
exchange or association or over-the-counter market that is the primary market
for the trading of such security. "Business Day" means any day, other than a
Saturday or Sunday, on which banking institutions in the City of Chicago and the
City of New York are open for business.
Interest on this DECS will be payable, and delivery of NEXTEL Common Stock
(or, at the Company's option, cash in an amount equal to the value of such
NEXTEL Common Stock) in exchange for the principal amount of this DECS at
Maturity will be made upon surrender of this DECS, at the office or agency of
the Company maintained for that purpose in the City of New York, New York, [or,
at the option of the Holder, at the office or agency of the Company maintained
for that purpose in Chicago, Illinois,] and payment of interest on (and, if the
Company elects not to deliver NEXTEL Common Stock upon exchange at Maturity, the
cash equivalent thereof payable upon exchange for the principal amount of) this
DECS will be made in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Note Register at the close of business on the
Regular Record Date.
This note is one of a duly authorized issue of senior notes of the series
above (hereinafter called the "Notes") of the Company, which series is limited
to ____________ DECS, all such Notes issued and to be issued under an indenture
dated as of May 1, 1990, between the Company and Norwest Bank Minnesota,
National Association, as Trustee, (as supplemented by a First Supplemental
Indenture, dated as of February 1, 1994) (herein collectively the
"Indenture"), to which Indenture and all other indentures supplemental thereto
reference is hereby made for a statement of the rights and limitation of rights
thereunder of the Holders of the Notes and of the rights, obligations, duties
and immunities of the Trustee for each series of Notes and of the Company, and
the terms upon which the Notes are and are to be authenticated and delivered.
This note is one of a series of the Notes designated ___% Exchangeable Notes due
February __, 1997 (referred to herein as the "DECS").
The DECS may not be redeemed prior to Maturity.
<PAGE>
4
If an Event of Default with respect to the DECS, as defined in the
Indenture, shall occur and be continuing, the principal of all the DECS may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series under the
Indenture to be affected at any time by the Company with the consent of the
Holders of a majority in principal amount of the Notes at the time Outstanding
of each series to be affected. The Indenture also contains provisions
permitting the Holders of a majority in principal amount of the Notes of each
series at the time Outstanding on behalf of the Holders of all the Notes of such
series, to waive certain past defaults under the Indenture and their
consequences with respect to such series. Any such consent or waiver by the
Holder of this DECS shall be conclusive and binding upon such Holder and upon
all future Holders of this DECS and of any DECS issued upon the transfer hereof
or in exchange here for or in lieu hereof whether or not notation of such
consent or waiver is made upon this DECS.
No reference herein to the Indenture and no provision of this DECS or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this DECS at
the times, place and rate, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, this DECS is transferable on the Note Register of the Company, upon
surrender of this DECS for registration of transfer at the office or agency of
the Company to be maintained for that purpose in the City of New York, [or, at
the option of the Holder, at the office or agency of the Company to be
maintained for that purpose in Chicago, Illinois,] or at any other office or
agency of the Company maintained for that purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new DECS, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made for any such transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the registration of such transfer
or exchange, other than certain exchanges not involving any transfer.
Certain terms used in this DECS which are defined in the Indenture have the
meanings set forth therein.
"DECS" and "Debt Exchangeable for Common Stock" are service marks of
Salomon Brothers Inc.
<PAGE>
5
This DECS shall be governed by, and construed in accordance with, the laws
of the State of New York.
The Company, the Trustee for the DECS and any agent of the Company or such
Trustee may treat the Person in whose name this DECS is registered as the owner
hereof for the purpose of receiving payment as herein provided and for all other
purposes, whether or not this DECS be overdue, and neither the Company, such
Trustee nor any such agent shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee for the DECS by manual signature, this DECS shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FIRST CHICAGO CORPORATION
By__________________________
Chairman of the Board
Attest:
_____________________________
Secretary
<PAGE>
6
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein and referred to in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA, NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, NATIONAL ASSOCIATION,
as Trustee as Trustee
or
By By FIRST CHICAGO TRUST
COMPANY OF NEW YORK,
Authorized Officer as Authenticating Agent
By: _________________________
Authorized Officer
<PAGE>
7
_______________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT ____
TEN ENT -- as tenants by the entireties Custodian ______ (minor)
JT TEN -- as joint tenants with right
of survivorship and not as Under Uniform Gifts to
tenants in common Minors Act _____ (state)
Additional abbreviations may also be used though not in the above list
____________________________
Social Security or taxpayer I.D. or
other identifying number of assignee
__________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
_________________________________________________________________________
_____________________________________________________________________________
(name and address of assignee)
the within DECS and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________, attorney, to transfer said DECS on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: ____________
__________________________*/
-
____________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within DECS in every
particular, without alteration, enlargement or any change whatever and must be
guaranteed by a commercial bank or trust company having its principal office or
a correspondent in the City of New York or by a member of the New York Stock
Exchange.
