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FORM 8-K
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF L934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) February 11, 1994
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First Chicago Corporation
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 1-6052 36-2669970
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(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
One First National Plaza, Chicago, IL 60670
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE 312-732-4000
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(c) Exhibits.
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The Exhibits listed below and attached hereto are hereby filed in connection
with the Registrant's Registration Statement on Form S-3 (File No. 33-65904).
Exhibit Description of
Number Exhibit
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1(e) Form of Underwriting Agreement for Debt Exchangeable for
Common Stock/SM/ (DECS/SM/)
4(c)(2) Form of First Supplemental Indenture dated as of February 1,
1994, between the Registrant and Norwest Bank Minnesota,
National Association, as Trustee
4(f)(7) Form of 5 1/2% Exchangeable Notes Due February 15, 1997
(each a "DECS/SM/")
Pursuant to the requirements of the Securities Exchange Act of l934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
First Chicago Corporation
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(REGISTRANT)
Date: February 11, 1994 By /s/ David P. Bolger
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Title: Senior Vice President and
Treasurer
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EXHIBIT 1(e)
EXECUTION COPY
FIRST CHICAGO CORPORATION
Underwriting Agreement
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New York, New York
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
First Chicago Corporation, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), (1) the
principal amount of its debt securities, if any, identified in Schedule I hereto
(the "Debt Securities"), to be issued under an indenture (the "Indenture") dated
as of May 1, 1990, as amended by the First Supplemental Indenture, dated as of
February 1, 1994, between the Company and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee"), and/or (2) the warrants, if any,
indicated in Schedule I hereto (the "Warrants") to purchase the aggregate
principal amount listed in Schedule I hereto of the debt securities listed in
Schedule I hereto (the "Warrant Securities"), to be issued pursuant to the
Warrant Agreement listed in Schedule I hereto (the "Warrant Agreement") between
the Company and the Warrant Agent listed in Schedule I hereto (the "Warrant
Agent") and/or (3) the foreign currency warrants, if any, indicated in Schedule
I hereto (the "Currency Warrants") described in Schedule I hereto to be issued
pursuant to the Currency Warrant Agreement listed in Schedule I hereto (the
"Currency Warrant Agreement") between the Company and the Currency Warrant Agent
listed in Schedule I hereto (the "Currency Warrant Agent") and/or (4) the stock-
index warrants, if any, indicated in Schedule I hereto (the "Stock-Index
Warrants") described in Schedule I hereto to be issued pursuant to the Stock-
Index Warrant Agreement listed in Schedule I hereto (the "Stock-Index Warrant
Agreement") between the Company and the Stock-Index Warrant Agent listed in
Schedule I hereto (the "Stock-Index Warrant Agent") and/or (5) the common stock
warrants, if any, indicated in Schedule I hereto (the "Common Stock Warrants")
described in Schedule I hereto to be issued
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2
pursuant to the Common Stock Warrant Agreement listed in Schedule I hereto (the
"Common Stock Warrant Agreement") between the Company and the Common Stock
Warrant Agent listed in Schedule I hereto (the "Common Stock Warrant Agent").
The Company also proposes to grant to the Underwriters an option to purchase up
to such additional number of Debt Securities, if any, as is specified in
Schedule I hereto (the "Option Securities") to cover over-allotments. The Debt
Securities, if any, the Option Securities, if any, the Warrants, if any, the
Warrant Securities, if any, the Currency Warrants, if any, the Stock-Index
Warrants, if any, and the Common Stock Warrants, if any, are hereinafter
referred to as the "Securities". If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives", as used herein, shall each be deemed
to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
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to, and agrees with, each Under-writer as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, and may have used a Preliminary
Final Prospectus, each of which has previously been furnished to you.
Such registra-tion statement, as so amended, has become effec-tive.
The offering of the Securities is a Delayed Offering and, accordingly,
it is not necessary that any further information with respect to the
Securities and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus be included in an
amendment to such registration statement prior to the
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3
Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospec-tus included in such registration statement relating
to the Securities and the offering thereof. As filed, such final
prospectus supple-ment shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Pro-spectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospec-tus, for registration under
the Act of the offer-ing and sale of the Securities. The Company may
have filed one or more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished to you.
The Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4), or (y) prior to the effective-ness of
such registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In the
case of clause (x), the Company has included in such registration
statement, as amended at the Effec-tive Date, all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final prospectus
supple-ment or such amendment and form of final prospec-tus supplement
shall contain all Rule 430A Infor-mation, together with all other such
required information, with respect to the Securities and the offering
thereof and, except to the extent the
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4
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execu-tion Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospec-tus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the Indenture did
or will comply in all material respects with the requirements of the Trust
Indenture Act of 1939 (the "Trust Inden-ture Act") and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a mater-ial fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
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Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
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5
Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred to
in paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean
any preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus,
included in the Regis-tration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to
in paragraph (a) above, including incorpo-rated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement as so amended. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means informa-tion with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which
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6
were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Regis-tration Statement, the Basic Prospectus, any
Prelimi-nary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect to
the secu-rities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration state-ment at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a Non-
Delayed Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
(d) The statements contained in the certificates delivered by the
Company and First Capital Corporation of Chicago ("FCC"), and attached to
the opinions of Kirkland & Ellis, special counsel for the Company, dated
January 31, 1994, and the Closing Date, are true and correct.
(e) The Company is not aware, without having made any independent
investigation, of any material misstatements or material omissions
contained in the registration statements, periodic reports and other
documents which have been filed by NEXTEL under the Act and the Exchange
Act.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
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7
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities and Securities to be purchased pursuant to Delayed Delivery Contracts
as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Under-writers are authorized
to solicit offers to purchase Sec-urities from the Company pursuant to delayed
delivery con-tracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Con-tracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Sec-urities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the
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8
Company in writing; provided, however, that the total prin-cipal amount of
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Securities to be purchased by all Under-writers shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate principal amount of
Contract Securities.
(b) Subject to the terms and conditions herein set forth, the Company
hereby grants an option to the several Underwriters to purchase, severally and
not jointly, the Option Securities at the same purchase price for each of the
Option Securities as the Underwriters shall pay for each of the Underwriters'
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwriters' Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Final Prospectus upon written or telegraphic
notice by the Representatives to the Company setting forth the number of Option
Securities as to which the several Underwriters are exercising the option and
the settlement date. Delivery of certificates for the Option Securities, and
payment therefore, shall be made as provided in Section 3 hereof. The number of
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwriters'
Securities, subject to such adjustments as you in you absolute discretion shall
make to eliminate any fractional Debt Securities.
3. Delivery and Payment. Delivery of and payment for the
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Underwriters' Securities and the Option Securities (if the option provided for
in Section 2(b) hereof shall have been exercised on or before the third business
day prior to the Closing Date) shall be made at the office, on the date and at
the time specified in Schedule I hereto (or such later date not later than five
business days after such specified date as the Representatives shall designate),
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 8 hereof (such date and time of
delivery and payment for the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
payable in Federal (same-day) funds, or by wire transfer in Federal (same-day)
funds or by same-day
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9
transfer of funds on the books of the First National Bank of Chicago. Delivery
of the Underwriters' Securities and the Option Securities shall be made at such
location as the Representatives shall reasonably designate at least one business
day in advance of the Closing Date and payment for the Securities shall be made
at the office specified in Schedule I hereto. Certificates for the Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date. The Currency Warrants, the Stock-Index Warrants and the
Common Stock Warrants shall be issued as provided in their respective Warrant
Agreements.
The Company agrees to have the Securities (other than the Currency
Warrants, the Stock-Index Warrants and the Common Stock Warrants, if any)
available for inspection, checking and packaging by the representatives in New
York, New York, not later than 1:00 P.M. on the business day prior to the
Closing Date.
If the option provided for in Section 2(b) hereof is exercised after
the third business day prior to the Closing Date, the Company will deliver (at
the expense of the Company) to the Representatives, on the date specified by the
Representatives (which shall be within three business days after exercise of
said option), certificates for the Option Securities registered in such names
and in such denominations as the Representatives shall have requested against
payment of the purchase price thereof to or upon the order of the Company by
certified or official bank check or checks payable in Federal (same-day) funds,
by wire transfer in Federal (same-day) funds or by same-day transfer of funds on
the books of The First National Bank of Chicago. If settlement for the Option
Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 5 hereof.
4. Agreements. The Company agrees with the several Underwriters
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that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at
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10
the Execution Time, and any amendment thereto, to become effective. Prior
to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supple-ment (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus (other than a supplement to the Basic Prospectus that relates to
securities other than the Securities) unless the Company has furnished you
a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus, properly
completed, and any supple-ment thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives of
such timely filing. The Company will promptly advise the Repre-sentatives
(i) when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when the
Final Prospectus, and any supplement thereto, shall have been filed with
the Commission pursuant to Rule 424(b), (iii) when, prior to termination of
the offering of the Securities, any amendment to the Registration Statement
relating to the Securities shall have become effective, (iv) of any request
by the Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information, (v)
of the issuance by the Commission of any stop order suspending the
effective-ness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which
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11
they were made not misleading, or if it shall be neces-sary to amend the
Registration Statement or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the second
sentence of para-graph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives a consolidated earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representa-tives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto), so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act, as many copies of
any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reason-ably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualifica-tion of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, any debt securities (if the
Securities include Debt Securities or Warrants) or any currency warrants in
the same currencies as the Cur-rency Warrants (if the Securities include
Currency Warrants) covered by the Registration Statement or any other
registration statement filed under the Act.
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section
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12
1 of Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of
--------------------------------
doing Business with Cuba, and the Company further agrees that if it
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commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Securities and Exchange
Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in
the Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(h) During the period of 90 days after the Execution Date, neither
the Company nor any of its affiliates (including FCC) will offer for sale,
sell or otherwise dispose of any shares of NEXTEL Common Stock or any
securities convertible into or exchangeable for, or warrants to acquire,
NEXTEL Common Stock except (i) in connection with exchanges of the
Securities for shares of NEXTEL Common Stock in accordance with the terms
of the Indenture, (ii) in connection with the offer and sale of shares of
NEXTEL Common Stock in certain transactions exempt from registration under
the Securities Act or (iii) to an affiliate of the Company if such
affiliate shall have executed an appropriate document in form and substance
satisfactory to the Representatives to the effect that such affiliate will
be subject to the same restrictions as are imposed upon the Company
pursuant to this subsection (h), without the prior written consent of the
Representatives.
(i) At maturity (including as a result of acceleration or otherwise)
of the Securities, if the Company chooses to deliver to the holders of the
Securities shares of NEXTEL Common Stock rather than cash in an amount
equal to the value of such shares of NEXTEL Common Stock, the shares of
NEXTEL Common Stock which are delivered by the Company to the holders of
the Securities shall be free of any transfer restrictions (other than such
as are solely attributable to any holder's status as an affiliate of
NEXTEL).
5. Conditions to the Obligations of the Under-writers. The
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obligations of the Underwriters to purchase
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13
the Underwriters' Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, the Closing Date
and any settlement date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 P.M. New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 P.M. New
York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 P.M. New York City time on such
date; if filing of the Final Prospectus, or any sup-plement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Sherman I. Goldberg, Esq., Executive Vice President, Secretary
and General Counsel of the Company, dated the Closing Date, to the effect
that:
(i) each of the Company and The First National Bank of Chicago
(the "Bank"), American National Corporation and FCC National Bank and
each other subsidiary of the Company with assets having a book value
equal to or greater than 5% of the total book value of all assets of
the Company as of the date of its most recent financial state-ments
contained in a report filed with the Com- mission pursuant to the
Exchange Act (collec-tively, the "Subsidiaries") has been duly
incor-porated or organized and is validly existing as a corporation or
national banking association, as the case may be, in good standing
under the laws
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14
of the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus, and is duly qualified
to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material
business and the Company is duly organized as a bank holding company
under the Bank Holding Company Act of 1956, as amended;
(ii) all the outstanding shares of capital stock of the
Subsidiaries have been duly and validly authorized and issued and are
fully paid and (except as provided in 12 U.S.C. (S) 55) non-
assessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of the Bank are
owned by the Company either directly or through wholly owned subsidi-
aries free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth or incorporated in the Final Prospectus; the Securities conform
to the description thereof contained in the Final Prospectus; and, if
the Securities are to be listed on any stock exchange, authorization
therefor has been given, subject to official notice of issuance and
evidence of satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting documents
with respect to the Securities with such stock exchange, as the case
may be, and such counsel has no reason to believe that the Securities
will not be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution (except that in the
case of Currency Warrants, if any, Stock-Index Warrants, if any, or
Common Stock Warrants, if any, the opinion shall state the Currency
Warrants, Stock-Index Warrants or Common Stock Warrants have been
approved for listing subject to official notice of issuance);
<PAGE>
15
(iv) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect); and the Debt Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities and the Option Securities, as the case may
be, or by the purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries, of a character required to be disclosed in
the Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other
document of a char-acter required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit, which is
not described or filed as required; and the statements included or
incorpo-rated in the Final Prospectus describing any legal proceedings
or material contracts or agreements relating to the Company fairly
summarize such matters as of the date thereof;
(vi) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the effec- tiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been
<PAGE>
16
instituted or threatened, and the Registration Statement and the Final
Prospectus (other than the financial statements and other financial
and statistical information contained therein as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder; and such counsel has no reason to
believe that at the Effective Date and at the date of this Agreement,
the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus includes any untrue statement
of a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(vii) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
trans-actions contemplated herein or in any Delayed Delivery Contracts
or the delivery of shares of NEXTEL Common Stock upon the exchange of
the Securities, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated, nor
the fulfillment of the terms hereof or of any Delayed Delivery
Contracts, nor the delivery of shares of NEXTEL Common Stock upon the
exchange of the Securities will conflict with, result in a breach of,
or constitute a default under the charter or by-laws of the Company or
the terms of any indenture or other agreement or instrument known
<PAGE>
17
to such counsel and to which the Company or any of its subsidiaries is
a party or bound, or any order or regulation known to such counsel to
be applicable to the Company or any of its sub-sidiaries of any court,
regulatory body, adminis-trative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries; and
(x) each of the Warrant Agreement, if any, the Currency Warrant
Agreement, if any, the Stock-Index Warrant Agreement, if any, and the
Common Stock Warrant Agreement, if any, has been duly authorized,
executed and delivered, and consti-tutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insol-vency, moratorium or other laws
affecting credi-tors' rights generally from time to time in effect);
and the Warrants, if any, the Currency Warrants, if any, the Stock-
Index Warrants, if any, and the Common Stock Warrants, if any, have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Warrant Agreement, the Currency
Warrant Agreement, the Stock-Index Warrant Agreement or the Common
Stock Warrant Agreement, as the case may be, and delivered to and paid
for by the Underwriters pursuant to this Agreement, or by the
purchasers thereof, pursuant to Delayed Delivery contracts, in the
case of any Contract Securities, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Warrant Agreement, the Currency Warrant Agreement, the Stock-Index
Warrant Agreement or the Common Stock Warrant Agreement, as the case
may be; and
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware or the United States, to the extent deemed proper and speci-
fied in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are
<PAGE>
18
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and public officials.
References to the Final Prospectus in this para-graph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, if any, the Warrant Agreement, if any, the Currency Warrant
Agreement, if any, the Stock-Index Warrant Agreement, if any, the Common
Stock Warrant Agreement, if any, the Delayed Delivery Contracts, if any,
the Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the
President, the Vice Chairman of the Board or the Treasurer and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any Supplement
to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effective-ness of the
Registration Statement, as amended, has been issued and no proceedings
for that purpose have been instituted or, to the Company's knowledge,
threatened; and
<PAGE>
19
(iii) since the date of the most recent financial statements included or
incorporated in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Arthur Andersen & Co., certified public
accountants, shall have furnished to the Representatives a letter or
letters (which may refer to letters previously delivered to one or more of
the Representatives), dated as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and pro forma financial statements, if
any, included or incorporated in the Registration Statement and the
Final Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the amounts included or
incorporated in the Registration Statement and the Final Prospectus in
response to Item 301 of Regulation S-K and of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examina-tion in accordance with generally accepted audit-ing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
executive committees of the Company and the Bank; and inquiries of
certain officials of the Company who have responsibility for finan-
cial and accounting matters of the Company and its
<PAGE>
20
subsidiaries as to transactions and events sub-sequent to the date of
the most recent audited financial statements in or incorporated in the
Final Prospectus, nothing came to their attention which caused them to
believe that:
(1) the amounts in the unaudited "Summary Consolidated
Financial Data", if any, included in the Final Prospectus, and
the amounts in the "Selected Financial Data" included or
incorporated in the Registration Statement and the Final
Prospectus, do not agree with the corresponding amounts in the
audited financial statements from which such amounts were
derived;
(2) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects with
applicable accounting requirements and with the published rules
and regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with gener-ally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; or
(3) with respect to the period subse-quent to the date of
the most recent finan-cial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the capital stock or long-
term debt (other than scheduled repayments of such debt or
changes resulting from foreign currency translation rate
fluctuations) or any decrease in total capital of the Company,
the Company and its subsidiaries or the Bank, as compared with
the amounts shown on the most recent consolidated balance sheet
<PAGE>
21
included or incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of the most
recent financial statements included or incorporated in the
Registration Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the corre-
sponding period in the preceding year in net interest income or
income before income taxes of the Company and its subsidiaries,
net interest income or income before income taxes of the Bank, or
net income of the Company and its subsidiaries except in all
instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives;
(4) the amount included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included or incorporated in the Registration
Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in any of the Company's quarterly
reports on Form 10-
<PAGE>
22
Q incorporated in the Registration Statement and the Final Prospectus,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Final Prospectus,
on the basis of a reading of the unaudited pro forma financial
statements, carrying out certain specified proce-dures, inquiries of
certain officials of the Company and the acquired company who have
respon-sibility for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing
came to their attention which caused them to believe that the pro
forma financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.
References to the Final Prospectus in this para-graph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Arthur Anderson & Co. shall have furnished to the Representatives a letter
or letters, dated as of the Execution Time, in form and substance satisfactory
to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries or
of NEXTEL and its subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in
<PAGE>
23
the judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the delivery of
the Securities as contemplated by the Registration State-ment (exclusive of
any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's or NEXTEL's debt securities
by Moody's Investors Service, Inc. or Standard & Poor's Corporation, or any
notice given of any intended or potential decrease in any such ratings or
of a possible change in any such ratings that does not indicate the
direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Repre-sentatives may reasonably request.
(i) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
(j) The Representatives shall have received from Kirkland & Ellis,
special counsel for the Company, an opinion, dated the Closing Date, in the
form of Schedule IV hereto.
If any of the conditions specified in this Sec-tion 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or else-where in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not con-summated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal, inability or failure on the part
<PAGE>
24
of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all reasonable out-of-
pocket expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Under-writer and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any failure to register the NEXTEL
Common Stock under the Act in connection with the initial offering of the
Securities or the exchange of the Securities for NEXTEL Common Stock pursuant to
the terms of the Securities or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and in each case
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
-------- -------
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connec-tion with the preparation thereof, and (ii) such
indemnity with respect to the Basic Prospectus or any Preliminary Final
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which are the subject
<PAGE>
25
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in the Basic
Prospec-tus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indem-nify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Under-writer, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page, under the
heading "Underwriting" or "Plan of Distribution" and, if Schedule I hereto
provides for sales of Securities pursuant to delayed delivery arrangements, in
the last sentence under the heading "Delayed Delivery Arrangements" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnity, and you, as
the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writ-ing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party other-wise than
under this Section 7. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indem-nifying party will be entitled to appoint counsel satisfac-
<PAGE>
26
tory to such indemnified party to represent the indemnified party in such
action; provided, however, that if the defen-dants in any such action include
-------- -------
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to appoint counsel to defend
such action and approval by the indemnified party of such counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accord-ance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel, approved
by the Representatives in the case of paragraph (a) of this Section 7,
representing the indemni-fied parties under such paragraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applica-ble, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraphs (a) or (b)
of this Section 7 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company on grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company and one or more of the Underwriters may be subject in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such discount and
the purchase price of the Securities specified
<PAGE>
27
in Schedule I hereto and the Company is responsible for the balance; provided,
--------
however, that (y) in no case shall any Underwriter (except as may be provided in
- -------
any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount applicable to
the Securities purchased by such Underwriter hereunder and (z) no person guilty
of fraudulent misrepresentation (within the meaning of Sec-tion 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of the Act shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registra-tion Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (y) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contri-bution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other obliga-
tion it or they may have hereunder or otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
-------- -------
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if
<PAGE>
28
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Represen-tatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's common stock or preferred stock shall have been
suspended by the Commission or the New York Stock Exchange, trading in NEXTEL
Common Stock shall has been suspended by the Commission or the National
Association of Securities Dealers Automated Quotation National Market System or
trading in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers Automated Quotation National Market System
shall have been suspended or limited or minimum prices shall have been
established on either of such Exchange, (ii) a banking moratorium shall have
been declared either by Federal or New York State or Illinois State authorities
or (iii) there shall have occurred any outbreak or escalation of hostili-ties,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of the Securities. The provisions of Sections 6 and 7
hereof shall survive the termination or cancellation of this Agreement.
<PAGE>
29
11. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or tele-graphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at One First National Plaza, Suite 0460,
Chicago, Illinois 60670, attention of the Treasurer.
12. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York.
If the foregoing is in accordance with your under-standing of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
FIRST CHICAGO CORPORATION
By:
____________________________
Name:
Title:
<PAGE>
30
The foregoing Agreement
is hereby confirmed and
accepted as of the date
specified in Schedule I
hereto.
SALOMON BROTHERS INC
MERRILL LYNCH & CO.
By:
_________________________
Authorized Representative
For themselves
and the other several
Underwriters, if any,
named in Schedule II
to the foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated: February 8, 1994
Registration Statement No. 33-65904
Representatives: Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Merrill Lynch & Co.
World Financial Center
North Tower
New York, NY 10281
Title, Purchase Price and Description
of the Debt Securities:
Title: 5 1/2% Exchangeable Notes Due February 15, 1997
(the "DECS")
Principal amount: 6,500,000 DECS
Purchase price (include accrued
interest or amortization, if
any): $36.25 per DECS
Interest payment dates: Every February 15, May 15,
August 15 and November 15, commencing May 15, 1994
Type of Offering: Delayed Offering
Sinking fund provisions: None
Redemption provisions: The DECS are not subject to
redemption prior to maturity
Over-allotment option: up to 975,000 DECS
Other provisions:
1. The DECS will be listed on the New York Stock Exchange.
2. At maturity (including as a result of acceleration or otherwise), the
principal amount of each DECS will be mandatorily exchanged by
<PAGE>
2
the Company into a number of shares of NEXTEL Common Stock (or, at
the Company's option, cash with an equal value) at the Exchange Rate
(as defined in the Indenture).
Description of Warrants: None
Title of Warrants: N/A
Warrant Agent: N/A
Warrant exercise price, currency and date: N/A
Principal amount and currency of Warrant Securities
issuable upon exercise of one Warrant: N/A
Date after which Warrants may be exercised: N/A
Expiration date: N/A
Detachable date: N/A
Description of Warrant Securities: None
Title: Principal amount and currency: N/A
Purchase price and currency: N/A
Sinking fund provisions: N/A
Redemption provisions: N/A
Other provisions: N/A
Description of Currency Warrants: None
Title of Currency Warrants: N/A
Number of Currency Warrants: N/A
Principal Amount of Each Currency Warrant: N/A
Currency: N/A
Price to Public of Currency Warrants: N/A
<PAGE>
3
Underwriting Discount: N/A
Purchase Price of Currency Warrants: N/A
Currency Warrants Exercise Price and date: N/A
Expiration Date: N/A
Currency Warrant Agent: N/A
Closing Date, Time and Location: 10:00 A.M., New York
time, February 15, 1994;
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Delayed Delivery Arrangements: None
Fee: N/A
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all
contracts: N/A
Modification of items to be covered by the letter from Arthur Andersen & Co.
delivered pursuant to Section 5(e) at the Execution Time: None
<PAGE>
SCHEDULE II
Principal Amount
of Securities
Underwriters to be Purchased
- ------------ ----------------
Salomon Brothers Inc ............................ 3,250,000
Merrill Lynch, Pierce, Fenner &
Smith Incorporated ............................ 3,250,000
________________
Total ............................... 6,500,000
________________
________________
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from First Chicago Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on ,
19 , (the "Delivery Date"), $ principal amount of the Company's
(the "Securities") offered by the Company's Prospectus dated
, 19 , and related Prospectus Supplement dated , 19 , receipt of a
copy of which is hereby acknowledged, at a purchase price of
% of the principal amount thereof, plus [accrued interest or amortization of
original issue discount], if any, thereon from , 19 , to the date of
payment and delivery, and on the further terms and conditions set forth in this
contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to or upon
the order of the Company in funds, at your office or at
such other place as shall be agreed between the Company and the undersigned,
upon delivery to the undersigned of the Securities in definitive fully
registered form and in such authorized denominations and registered in such
names as the undersigned may request by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date. If no request is received, the Securities will be registered in
the name of the undersigned and issued in a denomination equal to the aggregate
principal amount of Securities to be purchased by the undersigned on the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to
<PAGE>
2
be made by the undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be prohibited
under the laws of the jurisdiction to which the undersigned is subject, and (2)
the Company, on or before the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such principal amount of the Securities as is
to be sold to them pursuant to the Underwriting Agreement referred to in the
Prospectus and Prospectus Supplement mentioned above. Promptly after completion
of such sale to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied by
a copy of the opinion of counsel for the Company delivered to the Underwriters
in connection therewith. The obligation of the undersigned to take delivery of
and make payment for the Securities, and the obligation of the Company to cause
the Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective succes-sors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
______________________________
(Name of Purchaser)
<PAGE>
3
By
_________________________
(Title)
_________________________
(Address)
Accepted:
FIRST CHICAGO CORPORATION
By
......................
(Authorized Signature)
<PAGE>
SCHEDULE IV
Form of Kirkland & Ellis Opinion
[To Come]
<PAGE>
EXHIBIT 4(c)(2)
================================================================================
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
================================================================================
<PAGE>
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 "5
1/2% Exchangeable Notes Due February 15, 1997" representing up to 7,475,000
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:
<PAGE>
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.
----------------
2
<PAGE>
"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
----------------
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 $43.50 per share
of NEXTEL Common Stock (the "Threshold Appreciation Price"), .8333 shares of
NEXTEL Common Stock per DECS, (b) if the Maturity Price is less than the
Threshold Appreciation Price but is greater than $36.25 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 at Maturity as
provided in Section 15.02. Notwithstanding the foregoing, the Company may, at
its option in lieu of
3
<PAGE>
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 may be, shall be computed on the basis of the
aggregate number of DECS so surrendered at Maturity. Instead of any
4
<PAGE>
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 distribution and
shall become effective immediately after the effective date in the case of
a subdivision,
5
<PAGE>
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 NEXTEL Common
Stock actually delivered. Each such adjustment shall be made successively.
6
<PAGE>
(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 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
7
<PAGE>
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, 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
8
<PAGE>
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, .8333 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 adjustment is based, which certificate shall be conclusive,
final and binding evidence of the correctness of the adjustment, and file
such
9
<PAGE>
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 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
10
<PAGE>
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 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,
11
<PAGE>
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 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."
12
<PAGE>
(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.
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
13
<PAGE>
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:
14
<PAGE>
STATE OF ILLINOIS)
) ss.:
COUNTY OF COOK )
On the day of February __, 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 ______________
<PAGE>
STATE OF MINNESOTA)
) ss.:
COUNTY OF HENNEPIN)
On the day of February ___, 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 _____________
<PAGE>
EXHIBIT 4(f)(7)
REGISTERED
No. ________ CUSIP NO. 319455 85 3
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/)
5 1/2% Exchangeable Note Due February 15, 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
___________________ or registered assigns, the principal sum of
____________________ Dollars (or $36.25 per Debt Exchangeable for Common
Stock/SM/ (each a "DECS")) on February 15, 1997 (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
February 15, May 15, August 15 and November 15 in each year (individually
referred to as an "Interest Payment Date" and collectively as the "Interest
Payment Dates"), commencing May 15, 1994, and at Maturity, at the rate per annum
specified in the title of this note from February 15, 1994, 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. 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 January
31, April 30, July 31 or October 31, 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
<PAGE>
2
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 $43.50 per share of NEXTEL Common Stock
(the "Threshold Appreciation Price"), .8333 shares of NEXTEL Common Stock per
DECS, (b) if the Maturity Price is less than the Threshold Appreciation Price
but is greater than $36.25 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 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.
<PAGE>
3
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, 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.
ADDITIONAL PROVISIONS OF THIS DECS ARE CONTAINED ON THE REVERSE HEREOF AND
SUCH PROVISIONS SHALL HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS
PLACE.
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>
4
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 THE FIRST NATIONAL BANK
OF CHICAGO,
Authorized Officer as Authenticating Agent
By _________________________
Authorized Officer
<PAGE>
5
[Form of Reverse of DECS]
FIRST CHICAGO CORPORATION
5 1/2% Exchangeable Note Due February 15, 1997
(Subject to Exchange at Maturity into Shares of
Class A Common Stock, Par Value $.001 Per Share,
of NEXTEL Communications, Inc.)
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 7,475,000 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 5 1/2% Exchangeable Notes
Due February 15, 1997 (referred to herein as the "DECS").
The DECS may not be redeemed prior to Maturity.
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,
<PAGE>
6
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 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.
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.
<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.
