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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 13, 1997
REGISTRATION NO. 333-20133
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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STAR BANC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
OHIO 31-0838189
(STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
STAR BANK CENTER
425 WALNUT STREET
P.O. BOX 1038
CINCINNATI, OHIO 45202
(513) 632-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JENNIE P. CARLSON, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
STAR BANK CENTER
425 WALNUT STREET
CINCINNATI, OHIO 45202
(513) 632-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Effective Date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION
DATED MARCH 13, 1997
PROSPECTUS
STAR BANC CORPORATION
DEBT SECURITIES AND DEBT WARRANTS
PREFERRED SHARES AND PREFERRED SHARE WARRANTS
COMMON STOCK AND COMMON STOCK WARRANTS
UNITS
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Star Banc Corporation (the "Corporation") intends to offer from time to
time in one or more series its unsecured debt securities, which may be senior
(the "Senior Securities") or subordinated (the "Subordinated Securities," and,
together with the Senior Securities, the "Debt Securities"), warrants to
purchase the Debt Securities ("Debt Warrants"), shares of common stock, par
value $5.00 per share ("Common Stock"), shares of preferred stock, without par
value (the "Preferred Shares"), interests in which may be represented by
depositary shares ("Depositary Shares"), warrants to purchase the Preferred
Shares or Depositary Shares ("Preferred Share Warrants") or warrants to purchase
Common Stock ("Common Stock Warrants," and, together with the Debt Warrants and
Preferred Share Warrants, the "Securities Warrants"), with an aggregate initial
public offering price (including the exercise price of any Securities Warrants)
of up to $500,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies, including European Currency Units ("ECUs"),
on terms to be determined at the time of sale. The Debt Securities, Common
Stock, Preferred Shares, Depositary Shares and Securities Warrants may be
offered separately or as a part of units consisting of one or more such
securities ("Units," and, together with the Debt Securities, Common Stock,
Preferred Shares, Depositary Shares and Securities Warrants, the "Offered
Securities"), in separate series, in amounts, at prices and on terms to be set
forth in one or more supplements to this Prospectus (a "Prospectus Supplement").
The Senior Securities will rank pari passu with all other unsecured Senior
Debt (as defined herein) of the Corporation. The Subordinated Securities will be
subordinated to all existing and future Senior Debt of the Corporation.
Specific terms of the Offered Securities, including such terms as, where
applicable, (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, currency, denominations, maturity, premium, rate and
time of payment of interest, terms for redemption at the option of the
Corporation or repayment at the option of the holder, terms for sinking fund
payments, terms for conversion into other Offered Securities and the initial
public offering price; (ii) in the case of Preferred Shares, the specific title
and stated value, aggregate number of shares or fractional interests therein,
any dividend, liquidation, redemption, conversion, voting and other rights, the
initial public offering price, and whether interests in the Preferred Shares
will be represented by Depositary Shares; (iii) in the case of Common Stock the
aggregate number of shares and the initial public offering price; and (iv) in
the case of Securities Warrants, where applicable, the duration, offering price,
exercise price and detachability, will be set forth in the accompanying
Prospectus Supplement. Units may be issued in amounts, at prices, on terms and
containing such conditions, covenants and other provisions, and consisting of
such Offered Securities, as will be set forth in a Prospectus Supplement. The
Prospectus Supplement will also contain information, where applicable, about
certain United States federal income tax considerations relating to, and any
listing on a securities exchange of, the Offered Securities covered by the
Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time, or to or through underwriters or dealers, which may include
affiliates of the Corporation. If any agents or underwriters are involved in the
sale of any of the Offered Securities, their names, and any applicable fee,
commission, purchase price or discount arrangements with them, will be set
forth, or will be calculable from the information set forth, in such Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
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THE DEBT SECURITIES ARE UNSECURED OBLIGATIONS OF THE CORPORATION AND NO OFFERED
SECURITIES ARE SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR
NONBANK SUBSIDIARY OF THE CORPORATION, AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL
AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1997.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Securities and
Exchange Commission (the "Commission") are incorporated in and made a part of
this Prospectus by reference: (i) Annual Report on Form 10-K for the year ended
December 31, 1995; (ii) Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1996, June 30, 1996 and September 30, 1996; (iii) Current Report
on Form 8-K filed March 12, 1997; (iv) Registration Statement on Form 8-A dated
May 5, 1994; and (v) Registration Statement on Form 8-A dated April 15, 1994.
All documents filed by the Corporation with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities offered
hereby shall be deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein or in the accompanying Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Corporation will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any or all of the information incorporated
herein by reference (other than exhibits, unless such exhibits are specifically
incorporated by reference in such documents). Written requests for such copies
should be directed to David M. Moffett, Chief Financial Officer, Star Banc
Corporation, Star Bank Center, 425 Walnut Street, P.O. Box 1038, Cincinnati,
Ohio 45202. Telephone requests may be directed to (513) 632-4000.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Exchange Act, and, in accordance therewith, files reports and other information
with the Commission. Such reports, proxy and information statements and other
information filed by the Corporation can be inspected and copied at the public
reference facilities of the Commission, Room 1024, 450 Fifth Street N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located at
Seven World Trade Center, Suite 1300, New York, New York 10048, and at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and
copies of such materials can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street N.W., Washington, D.C. 20549, at prescribed
rates. In addition, copies of such material can be obtained from the
Commission's Internet site (http://www.sec.gov). The Common Stock is listed on
the New York Stock Exchange, Inc. (the "NYSE"). Reports, proxy and information
statements and other information concerning the Corporation can also be
inspected at the offices of the NYSE at 20 Broad Street, New York, New York
10005.
Additional information regarding the Corporation and the Offered Securities
offered hereby is contained in the registration statement (the "Registration
Statement") and the exhibits relating thereto in respect of the Offered
Securities offered hereby, filed with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). For further information pertaining to
the Corporation and the Offered Securities offered hereby, reference is made to
the Registration Statement and the exhibits thereto, which may be inspected
without charge at the office of the Commission at 450 Fifth Street N.W.,
Washington, D.C. 20549, and copies thereof may be obtained from the Commission
at prescribed rates. As permitted by the rules and regulations of the
Commission, this Prospectus omits certain of the information contained in the
Registration Statement. Statements contained herein concerning the provisions of
any document filed as an exhibit to the Registration Statement are not
necessarily complete and reference is made to the copy of such document so
filed. Such statements are qualified in their entirety by such reference.
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Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars," or "U.S. $").
2
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THE CORPORATION
The Corporation is organized under the laws of the State of Ohio and
maintains its executive offices in Cincinnati, Ohio. The Corporation is a bank
holding company (under the Bank Holding Company Act of 1956, as amended (the
"BHCA")) registered with the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board"), and, accordingly, is subject to regulation and
examination by the Federal Reserve Board.
As a result of a 1993 and 1996 restructuring of certain of its Ohio and
Indiana banks, the Corporation presently directly holds one wholly-owned
national bank subsidiary: Star Bank, N.A. (the "Bank"). Through the Bank and its
260 banking offices, the Corporation engages in the commercial banking and trust
business and provides a full range of consumer, wholesale, commercial, trust and
investment products (including, but not limited to deposits, individual
retirement accounts ("IRAs"), and mutual funds) and investment services in Ohio,
Kentucky and Indiana. The Bank offers corporate loans, commercial leasing,
commercial and residential mortgages, real estate construction lending, and a
variety of consumer loan products (including installment loans, credit cards and
retail leasing). None of the foregoing types of loans exceeds 30% of the Bank's
diversified loan portfolio. The Bank also offers cash management and
international trade services to commercial clients.
The Corporation has expanded significantly by acquisition in the last five
years. Recently, the Corporation, in three separate transactions, purchased 24
branch offices in the Columbus, Ohio area, 47 branch offices in the Cleveland
and Akron, Ohio areas, and 28 additional branches in the Cleveland, Ohio area;
and, on July 26, 1996, the Bank acquired 5 additional branches in Indiana. Most
recently, the Bank entered into an Agreement to acquire 7 branch offices in the
Southwestern Ohio area from Amerifirst Bank, N.A. This transaction is expected
to close in the first quarter of 1997. The Corporation continues to explore
other acquisition opportunities in its market area.
The Corporation's other active subsidiaries include: Miami Valley Insurance
Company, an Arizona corporation engaged solely in the business of issuing credit
life and accident and health insurance in connection with the lending activities
of the Corporation's Ohio and Indiana branch offices; First National Cincinnati
Corporation, a subsidiary of the Bank that owns and operates the Corporation's
headquarters building; and Star Banc Finance, Inc., a consumer finance company
regulated by the Federal Reserve Board that offers a broad mix of credit
products and services, including direct and indirect auto loans, second
mortgages and personal loans.
The Corporation's principal executive offices are located at Star Bank
Center, 425 Walnut Street, Cincinnati, Ohio 45202, and its telephone number is
(513) 632-4000.
Additional information concerning the Corporation is included in the
documents incorporated by reference herein. See "INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE."
3
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CERTAIN REGULATORY MATTERS
GENERAL
As a bank holding company, the Corporation is subject to supervision and
examination by the Federal Reserve Board. Under the BHCA, a bank holding company
generally may not, directly or indirectly, acquire the ownership or control of
more than 5% of the voting securities or all or substantially all of the assets
of any company, including a bank, without the prior approval of the Federal
Reserve Board. In addition, under the BHCA a bank holding company is generally
prohibited from engaging in nonbanking activities, subject to certain
exceptions. Proposals to change the laws and regulations governing the banking
industry are frequently raised in Congress, in the state legislatures and before
the various bank regulatory agencies. The likelihood and timing of any changes
and the impact such changes might have on the Bank and its affiliates are
difficult to determine.
The Bank is subject to supervision and examination by applicable federal
and state banking agencies. The Bank is primarily regulated by the Office of the
Comptroller of the Currency (the "OCC"). The deposits of the Bank are primarily
insured by the Bank Insurance Fund (the "BIF"); and certain deposits of the Bank
are insured by the Savings Association Insurance Fund (the "SAIF"); and, for
that reason, the Bank is subject to regulation by the Federal Deposit Insurance
Corporation (the "FDIC"). The Bank is also affected by the fiscal and monetary
policies of the federal government and its agencies, including the Federal
Reserve Board. An important purpose of these policies is to curb inflation and
control recessions through control of the supply of money and credit. The
Federal Reserve Board uses its powers to establish reserve requirements of
insured depository institutions, to set the discount rate on its extensions of
credit to insured depository institutions and to conduct open market operations
in United States government securities so as to influence the supply of money
and credit. These policies have a direct effect on the amount of bank loans and
deposits and on the interest rates charged on loans and paid on deposits, with
the result that federal policies have a material effect on bank earnings. Future
policies of the Federal Reserve Board and other authorities cannot be predicted
nor can their effect on future Bank earnings be predicted.
To the extent that the following information describes statutory or
regulatory provisions, it is qualified in its entirety by reference to such
statutory or regulatory provisions.
DIVIDEND RESTRICTIONS
Federal law imposes limitations on the payment of dividends by the Bank.
The amount of dividends that may be paid by the Bank is limited to the lesser of
the amounts calculated under a "recent earnings" test and an "undivided profits"
test. Under the recent earnings test, a dividend may not be paid if the total of
all dividends declared by a bank in any calendar year is in excess of the
current year's net income combined with the retained net income of the two
preceding years, unless the bank obtains the approval of the OCC. Under the
"undivided profits" test, a dividend may not be paid in excess of a bank's
"undivided profits".
Under these provisions the Bank could have declared, as of December 31,
1996, aggregate dividends of at least $250 million, without obtaining prior
regulatory approval and without reducing the capital of the Bank below "well
capitalized" minimum regulatory levels.
If, in the opinion of the applicable regulatory authority, a bank under its
jurisdiction is engaged in or is about to engage in an unsafe or unsound
practice (which, depending on the financial condition of the bank, could include
the payment of dividends), such authority may require, after notice and hearing,
that such bank cease and desist from such practice. The Federal Reserve Board,
the OCC, and the FDIC have issued policy statements which provide that
FDIC-insured banks and bank holding companies should generally pay dividends
only out of current operating earnings.
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HOLDING COMPANY STRUCTURE
The Corporation is a legal entity separate and distinct from its banking
and nonbanking subsidiaries. Accordingly, the right of the Corporation, and thus
the rights of the Corporation's creditors, to participate in any distribution of
the assets or earnings of any subsidiary other than in the Corporation's
capacity as a bona fide creditor of the subsidiary is necessarily subject to the
prior satisfaction of claims of creditors of the subsidiary. The principal
sources of the Corporation's revenues are dividends and fees from its
subsidiaries.
The Bank is subject to restrictions under federal law which limit the
transfer of funds by the Bank to the Corporation and its nonbank subsidiaries,
whether in the form of loans, extensions of credit, investments or asset
purchases. Such transfers by the Bank to the Corporation or any nonbank
subsidiary are limited in amount to 10% of the Bank's capital and surplus, and,
with respect to the Corporation and all such nonbank subsidiaries, to an
aggregate of 20% of such bank's capital and surplus. Furthermore, such loans and
extensions of credit are required to be secured in specified amounts.
The Federal Reserve Board has a policy to the effect that a bank holding
company is expected to act as a source of financial and managerial strength to
its subsidiary banks and to commit resources to support such subsidiary banks.
This support may be required at times when the Corporation may not have the
resources to provide it. Any capital loan by the Corporation to the Bank is
subordinate in right of payment to deposits and to certain other indebtedness of
the Bank. In addition, the Crime Control Act of 1990 provides that, in the event
of a bank holding company's bankruptcy, any commitment by the bank holding
company to a federal bank regulatory agency to maintain the capital of a
subsidiary bank will be assumed by the bankruptcy trustee and entitled to a
priority of payment.
A depository institution insured by the FDIC can be held liable for any
loss incurred by, or reasonably expected to be incurred by, the FDIC in
connection with (i) the default of a commonly controlled FDIC-insured depository
institution or (ii) any assistance provided by the FDIC to a commonly controlled
FDIC-insured depository institution in danger of default. "Default" is defined
generally as the appointment of a conservator or receiver and "in danger of
default" is defined generally as the existence of certain conditions indicating
that a "default" is likely to occur in the absence of regulatory assistance.
Federal law (12 U.S.C. Section 55) permits the OCC to order the pro rata
assessment of shareholders of a national bank whose capital stock has become
impaired, by losses or otherwise, to relieve a deficiency in such national
bank's capital stock. This statute also provides for the enforcement of any such
pro rata assessment of shareholders of such national bank to cover such
impairment of capital stock by sale, to the extent necessary, of the capital
stock of any assessed shareholder failing to pay the assessment. The
Corporation, as the sole shareholder of the Bank, is subject to such provisions.
ACQUISITIONS
Effective September 29, 1995, under the provisions of the Reigle-Neal
Interstate Banking and Branching Efficiency Act of 1994 (the "Reigle-Neal Act"),
the Corporation is permitted to acquire banks located in any state. Effective
June 1, 1997, the Bank will be permitted to acquire a bank located in a state
other than the state in which the Bank is located (an "interstate merger")
through merger, consolidation or purchase of assets and assumption of
liabilities, unless the state in which either of the banks is located has opted
out of the interstate banking provisions of the Reigle-Neal Act. An interstate
merger may occur before June 1, 1997 if the states in which the merging banks
are located have enacted a law authorizing interstate bank mergers.
All of the Corporation's acquisitions of banking institutions and other
companies are subject to the prior approval of the Federal Reserve Board and any
applicable federal or state regulatory authorities. In addition, under the
provisions of the Reigle-Neal Act, bank mergers are subject to deposit
concentration limits of 10% nationwide, and 30% in any one state unless it is
the initial entry of the Corporation into the state.
5
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CAPITAL REQUIREMENTS
Under the Federal Reserve Board's risk-based capital guidelines for bank
holding companies, the minimum ratio of total capital to risk-adjusted assets
(including certain off-balance sheet items, such as stand-by letters of credit)
is 8%. At least half of the total capital is to be comprised of common
stockholders' equity, minority interests and noncumulative perpetual preferred
stock ("Tier 1 capital"). The remainder ("Tier 2 capital") may consist of hybrid
capital instruments, perpetual debt, mandatory convertible debt securities, a
limited amount of subordinated debt, other preferred stock, and a limited amount
of the allowance for credit losses. The risk-based guidelines also specify that
all intangibles, including core deposit intangibles, except for mortgage
servicing rights ("MSRs") and purchased credit card relationships ("PCCRs"), be
deducted from Tier 1 capital. The guidelines permit the nondeduction of readily
marketable MSRs and PCCRs in Tier 1 capital to the extent that (i) MSRs and
PCCRs do not collectively exceed 50% of Tier 1 capital and (ii) PCCRs do not
exceed 25% of Tier 1 capital. For such purposes, MSRs and PCCRs each are
included in Tier 1 capital only up to the lesser of (i) 90% of their fair market
value (which must be determined quarterly) and (ii) 100% of the remaining
unamortized book value of such assets. In addition, the Federal Reserve Board's
minimum "leverage ratio" (the ratio of Tier 1 capital to quarterly average total
assets) guidelines for bank holding companies provide for a minimum leverage
ratio of 3% for bank holding companies that meet certain specified criteria,
including that they have the highest regulatory rating. All other bank holding
companies are required to maintain a leverage ratio of 3% plus an additional
cushion of 1% to 2%. The guidelines also provide that banking organizations
experiencing internal growth or making acquisitions are expected to maintain
strong capital positions substantially above the minimum supervisory levels,
without significant reliance on intangible assets. Furthermore, the guidelines
indicate that the Federal Reserve Board will continue to consider a "tangible
Tier 1 leverage ratio" in evaluating proposals for expansion or new activities.
The tangible Tier 1 leverage ratio is the ratio of a banking organization's Tier
1 capital less all intangibles to total assets less all intangibles. The Bank is
also subject to capital requirements adopted by the OCC which are substantially
similar to the foregoing. At December 31, 1996, the Corporation's Tier 1 capital
and "total capital" (the sum of Tier 1 and Tier 2 capital) to risk-adjusted
assets ratios were 7.64% and 11.88%, respectively, and the Corporation's
leverage ratio was 6.53%. Neither the Corporation nor the Bank has been advised
by the appropriate federal regulatory agency of any specific leverage ratio
applicable to it.
As a result of a federal law enacted in 1991 that required each federal
banking agency to revise its risk-based capital standards to ensure that those
standards take adequate account of interest rate risk, concentration of credit
risk and the risks of nontraditional activities, each of the federal banking
agencies has revised the risk-based capital guidelines described above to take
into account concentration of credit risk and risk of nontraditional activities.
In addition, the Federal Reserve Board, the FDIC and the OCC adopted a rule that
amends, effective September 1, 1995, the capital standards to include explicitly
a bank's exposure to declines in the economic value of its capital due to
changes in interest rates as a factor to be considered in evaluating a bank's
interest rate exposure. On June 26, 1996, such agencies issued a joint policy
statement that describes the process to be used to measure and assess the
exposure of a bank's net economic value to changes in interest rates. These
agencies have indicated that they do not intend to issue a rule that would
propose to establish an explicit minimum capital charge for interest rate risk
based on the level of a bank's measured interest rate exposure. In August 1996,
the federal banking agencies adopted amendments to their risk-based capital
rules to incorporate a measure for market risk in foreign exchange and commodity
activities and in the trading of debt and equity instruments. These amendments,
which become effective at year end 1997, will require banks with relatively
large trading activities to calculate a capital charge for market risk using
their own internal value-at-risk models (subject to parameters set by the
regulators) or, alternatively, risk management techniques developed by the
regulators. As a result, in addition to existing capital requirements for credit
risk, certain institutions will be required to hold capital based on the measure
of their market risk exposure. These institutions will be able to satisfy this
additional requirement, in part, by issuing short-term subordinated debt that
qualifies as Tier 3 capital. The Corporation does not believe that these recent
proposals and revisions to the capital guidelines will materially impact its
operations.
6
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FEDERAL DEPOSIT INSURANCE CORPORATION IMPROVEMENT ACT OF 1991
In December 1991, Congress enacted the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA"), which substantially revised the
bank regulatory and funding provisions of the Federal Deposit Insurance Act (the
"FDIA") and makes revisions to several other federal banking statutes. Among
other things, FDICIA requires federal banking regulators to take "prompt
corrective action" in respect of FDIC-insured depository institutions that do
not meet minimum capital requirements. FDICIA establishes five capital tiers:
"well capitalized," "adequately capitalized," "undercapitalized," "significantly
undercapitalized" and "critically undercapitalized." Under applicable OCC
regulations, an FDIC-insured depository institution is defined to be well
capitalized if it maintains a leverage ratio of at least 5%, a risk-adjusted
Tier 1 capital ratio of at least 6% and a risk-adjusted total capital ratio of
at least 10% and is not subject to a directive, order or written agreement to
meet and maintain specific capital levels. An insured depository institution is
defined to be adequately capitalized if it meets all of its minimum capital
requirements as described above under "-- Capital Requirements". An insured
depository institution will be considered undercapitalized if it fails to meet
any minimum required measure; will be considered significantly undercapitalized
if it has a risk-adjusted total capital ratio of less than 6%, risk-adjusted
Tier 1 capital ratio of less than 3% or a leverage ratio of less than 3%; and
will be considered critically undercapitalized if it fails to maintain a level
of tangible equity equal to at least 2% of total assets. An insured depository
institution may be deemed to be in a capitalization category that is lower than
is indicated by its actual capital position if it receives an unsatisfactory
examination rating.
FDICIA generally prohibits a depository institution from making any capital
distribution (including payment of a dividend) or paying any management fee to
its holding company if the depository institution would thereafter be
undercapitalized. Undercapitalized depository institutions are subject to a wide
range of limitations on operations and activities, including growth limitations,
and are required to submit a capital restoration plan. The federal banking
agencies may not accept a capital plan without determining, among other things,
that the plan is based on realistic assumptions and is likely to succeed in
restoring the depository institution's capital. In addition, for a capital
restoration plan to be acceptable, the depository institution's parent holding
company must guarantee that the institution will comply with such capital
restoration plan. The aggregate liability of the parent holding company is
limited to the lesser of (i) an amount equal to 5% of the depository
institution's total assets at the time it became undercapitalized and (ii) the
amount which is necessary (or would have been necessary) to bring the
institution into compliance with all capital standards applicable with respect
to such institution as of the time it fails to comply with the plan. If a
depository institution fails to submit an acceptable plan, it is treated as if
it were significantly undercapitalized.
Significantly undercapitalized depository institutions may be subject to a
number of requirements and restrictions, including orders to sell sufficient
voting stock to become adequately capitalized, requirements to reduce total
assets, and cessation of receipt of deposits from correspondent banks.
Critically undercapitalized institutions may not, beginning 60 days after
becoming critically undercapitalized, make any payment of principal or interest
on their subordinated debt. In addition, critically undercapitalized
institutions are subject to the appointment of a receiver or conservator.
FDICIA directs that each federal banking agency prescribe standards, by
regulation or guideline, for depository institutions relating to internal
controls, information systems, internal audit systems, loan documentation,
credit underwriting, interest rate exposure, asset growth, compensation, asset
quality, earnings, stock valuation, and such other operational and managerial
standards as the agency deems appropriate. The FDIC, in consultation with the
other federal banking agencies has adopted a final rule and guidelines with
respect to external and internal audit procedures and internal controls in order
to implement those provisions of FDICIA intended to facilitate the early
identification of problems in financial management of depository institutions.
The federal banking agencies have published final rules implementing the safety
and soundness standards required by FDICIA, including operational and managerial
standards, asset quality and earnings standards, and compensation standards. The
Corporation does not believe these standards will have a material impact on its
operations.
7
<PAGE> 9
FDICIA also contains a variety of other provisions that may affect the
operations of the Corporation, including reporting requirements, revised
regulatory standards for real estate lending, "truth in savings" provisions, and
the requirement that a depository institution give 90 days' notice to customers
and regulatory authorities before closing any branch.
Under other regulations promulgated under FDICIA, a bank cannot accept
"brokered deposits" (that is, deposits obtained through a person engaged in the
business of placing deposits with insured depository institutions or with
interest rates significantly higher than prevailing market rates) unless (i) it
is well capitalized or (ii) it is adequately capitalized and receives a waiver
from the FDIC. A bank that cannot receive brokered deposits also cannot offer
"pass-through" insurance on certain employee benefit accounts unless it provides
certain notices to affected depositors. In addition, a bank that is adequately
capitalized and that has not received a waiver from the FDIC may not pay an
interest rate on any deposits in excess of 75 basis points over certain
prevailing market rates. There are no such restrictions on a bank that is well
capitalized. Based on the above criteria and the Bank's capital ratios as of
December 31, 1996, the Bank qualifies as "well capitalized" under FDICIA and the
OCC's prompt corrective action regulations. The terminology used in FDICIA and
the prompt corrective action regulations, as described above, should not
necessarily be viewed as describing the condition or prospects of subject
depositary institutions, including the Bank.
FDIC INSURANCE
Each BIF member institution pays FDIC insurance premiums based on the
institution's annual assessment rate assigned to it by the FDIC. The assessment
rate is based on the institution's capitalization risk category and "supervisory
subgroup." An institution's capitalization risk category is based on the FDIC's
determination of whether the institution is well capitalized, adequately
capitalized or less than adequately capitalized. An institution's supervisory
subgroup is based on the FDIC's assessment of the financial condition of the
institution and the probability that FDIC intervention or other corrective
action will be required. "Subgroup A" institutions are financially sound
institutions with few minor weaknesses; "Subgroup B" institutions are
institutions that demonstrate weaknesses which, if not corrected, could result
in significant deterioration; and "Subgroup C" institutions are institutions for
which there is a substantial probability that the FDIC will suffer a loss in
connection with the institution unless effective action is taken to correct the
areas of weakness. The FDIC assessment rate schedule for BIF insured deposits,
adopted by the FDIC in 1995, ranges from zero to 27 cents per $100 of domestic
deposits, with Subgroup A institutions assessed at a rate of zero and Subgroup C
institutions assessed at a rate of 27 cents. On September 30, 1996, the
"Economic Growth and Regulatory Paperwork Reduction Act of 1996" was enacted.
The legislation, among other things, provides for the annual assessments on both
banks and savings associations to pay interest on bonds issued by the Financing
Corporation ("FICO") in connection with the cost of savings associations
insolvencies. This legislation is expected to result in BIF insurance premiums
for the Bank's BIF insured deposits in 1997 of 1.3 cents per $100 of deposits,
substantially all related to the FICO interest obligations. The FDIC may change
the assessment rate schedule BIF insured deposits on a semiannual basis. An
increase in the rate assessed against the Bank could have a material adverse
effect on the Corporation's earnings, depending on the amount of the increase.
The FDIC is authorized to terminate a depository institution's deposit
insurance upon a finding by the FDIC that the institution's financial condition
is unsafe or unsound or that the institution has engaged in unsafe or unsound
practices or has violated any applicable rule, regulation, order or condition
enacted or imposed by the institution's regulatory agency. The termination of
deposit insurance with respect to the Bank could have a material adverse effect
on the Corporation's earnings.
The Economic Growth and Regulatory Paperwork Reduction Act of 1996 also
provided for the recapitalization of the SAIF by imposing a one-time assessment
on SAIF-insured deposits. The deposits of the Bank include SAIF-insured
deposits. The effect of the legislation was to impose a one-time charge on the
Bank of approximately $5.0 million and to reduce the premium on its SAIF-insured
deposits to the same premium as for BIF insured deposits except that the
assessment for interest on the FICO obligations for 1997
8
<PAGE> 10
will be 6.4 cents per $100 of deposits. The FDIC may change the assessment rate
for such deposits on a semiannual basis.
DEPOSITOR PREFERENCE
Under the FDICIA, claims of holders of domestic deposits and certain claims
of administrative expenses and employee compensation against an FDIC-insured
depository institution, such as the Bank, have priority over other general
unsecured claims against the institution in the "liquidation or other
resolution" of the institution by a receiver.
USE OF PROCEEDS
Unless otherwise specified in an applicable Prospectus Supplement, the net
proceeds to be received by the Corporation from the sale of the Offered
Securities offered hereby will be added to the general funds of the Corporation,
and will be available for general corporate purposes, including investments in
or advances to existing or future subsidiaries, repayment of maturing
obligations and redemption of outstanding indebtedness. Pending such use, the
Corporation may temporarily invest the net proceeds or use them to reduce
short-term indebtedness.
9
<PAGE> 11
RATIOS OF EARNINGS TO FIXED CHARGES
AND TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following are the consolidated ratios of earnings to fixed charges and
to combined fixed charges and preferred stock dividends for each of the years in
the five-year period ended December 31, 1996:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits.................... 5.17x 3.98x 4.62x 6.77x 5.50x
Including interest on deposits.................... 1.75x 1.61x 1.79x 1.77x 1.48x
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends:
Excluding interest on deposits.................... 5.17x 3.97x 4.57x 6.37x 5.15x
Including interest on deposits.................... 1.75x 1.61x 1.79x 1.76x 1.47x
</TABLE>
For purposes of computing the consolidated ratios of earnings to fixed
charges, income before income taxes plus fixed charges less capitalized interest
has been divided by fixed charges. For purposes of computing the consolidated
ratios of earnings to combined fixed charges and preferred stock dividends,
income before income taxes plus fixed charges less capitalized interest has been
divided by fixed charges and pretax earnings required to cover preferred stock
dividends. Fixed charges, excluding interest on deposits, consist of interest on
short-term borrowings and long-term debt, amortization of debt expense,
capitalized interest and one-third of net rental expense (which is deemed
representative of the interest factor). Fixed charges, including interest on
deposits, consist of the foregoing items plus interest on deposits. Pretax
earnings required to cover preferred stock dividends have been computed by
dividing preferred stock dividends by one minus the Corporation's effective
income tax rate.
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<PAGE> 12
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be described
in the Prospectus Supplement relating to such Debt Securities.
The Senior Securities are to be issued under an indenture (the "Senior
Indenture") between the Corporation and the trustee named in the applicable
Prospectus Supplement as trustee (the "Senior Trustee"). The Subordinated
Securities are to be issued under an indenture (the "Subordinated Indenture")
between the Corporation and the trustee named in the applicable Prospectus
Supplement as trustee (the "Subordinated Trustee" and, together with the Senior
Trustee, the "Trustees"). The forms of the Senior Indenture and the Subordinated
Indenture (collectively, the "Indentures") are exhibits to the Registration
Statement. The following summaries of certain provisions of the Indentures do
not purport to be complete and are qualified in their entirety by reference to
the provisions of the Indentures.
Numerical references in parentheses below are to sections of the
Indentures. Wherever particular sections or defined terms of the Indentures are
referred to, it is intended that such sections or defined terms shall be
incorporated herein by reference. Unless otherwise indicated, capitalized terms
shall have the meanings ascribed to them in the Indentures.
GENERAL
Each Indenture provides that Debt Securities in an unlimited amount may be
issued thereunder from time to time in one or more series. (SECTION 301)
The Senior Securities will be unsecured and will rank pari passu with other
unsecured indebtedness of the Corporation. The Subordinated Securities will be
unsecured and will rank pari passu with other subordinated debt of the
Corporation, and, together with such other subordinated debt, will be
subordinated and junior in right of payment to the prior payment in full of the
Senior Debt of the Corporation as described below under "-- Subordination."
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Debt Securities for the terms of such Debt Securities,
including, where applicable, (i) the designation and any limit on the aggregate
principal amount of such Debt Securities; (ii) the price (expressed as a
percentage of the aggregate principal amount thereof) at which such Debt
Securities will be issued; (iii) the date or dates on which such Debt Securities
will mature or method by which such dates can be determined and the dates on
which premiums, if any, will be payable; (iv) the currency or currencies in
which such Debt Securities are being sold and are denominated and the
circumstances, if any, under which any Debt Securities may be payable in a
currency other than the currency in which such Debt Securities are denominated
and, if so, the exchange rate, the exchange rate agent and, if the Holder of any
such Debt Securities may elect the currency in which payments thereon are to be
made, the manner of such election; (v) the denominations in which any Debt
Securities which are Registered Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof, and the denomination
or denominations in which any Debt Securities which are Bearer Securities will
be issuable, if other than the denomination of $5,000; (vi) the rate or rates
(which may be fixed or variable) at which such Debt Securities will bear
interest, which rate may be zero in the case of certain Debt Securities issued
at an issue price representing a discount from the principal amount payable at
maturity; (vii) the date from which interest on such Debt Securities will
accrue, the dates on which such interest will be payable or the method by which
such dates can be determined, the date on which payment of such interest will
commence and the circumstances, if any, in which the Corporation may defer
interest payments; (viii) the dates on which, and the price or prices at which,
such Debt Securities will, pursuant to any mandatory sinking fund provision, or
may, pursuant to any optional redemption provision, be redeemed or repaid, and
the other terms and provisions of any such optional redemption or required
repayment; (ix) the place or places where the principal (and premium if any) and
interest shall be payable; (x) in the case of the Subordinated Securities, any
terms by which such securities may be convertible into Common Stock (see
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<PAGE> 13
"DESCRIPTION OF COMMON STOCK"), Preferred Shares (see "DESCRIPTION OF PREFERRED
SHARES") or Depositary Shares (see "DESCRIPTION OF DEPOSITARY SHARES") of the
Corporation, and, in the case of Subordinated Securities convertible into
Preferred Shares or Depositary Shares, the terms of such Preferred Shares or
Depositary Shares; (xi) whether such Debt Securities are to be issuable as
Bearer Securities and/or Registered Securities, and, if issuable as Bearer
Securities, the terms upon which any Bearer Securities may be exchanged for
Registered Securities; (xii) whether such Debt Securities are to be issued in
the form of one or more temporary or permanent Global Securities, and, if so,
the identity of the depositary for such Global Security or Securities; (xiii) if
a temporary global Debt Security is to be issued with respect to such series,
the extent to which, and the manner in which, any interest thereon payable on an
interest payment date prior to the issuance of a permanent Global Security or
definitive Bearer Securities will be credited to the accounts of the persons
entitled thereto on such interest payment date; (xiv) if a temporary Global
Security is to be issued with respect to such series, the terms upon which
interests in such temporary Global Security may be exchanged for interests in a
permanent Global Security or for definitive Debt Securities of the series, and
the terms upon which interests in a permanent Global Security, if any, may be
exchanged for definitive Debt Securities of the series; (xv) any additional
restrictive covenants included for the benefit of Holders of such Debt
Securities; (xvi) any additional Events of Default provided with respect to such
Debt Securities; (xvii) information with respect to book-entry procedures, if
any; (xviii) whether the Debt Securities will be repayable at the option of the
Holder; (xix) any other terms of the Debt Securities not inconsistent with the
provisions of the applicable Indenture; (xx) the right of the Corporation to
defease the Debt Securities or certain covenants under the Indentures; (xxi) the
Person or Persons who shall be the Security Registrar; and (xxii) the terms of
any securities being offered together with or separately from the Debt
Securities. Such Prospectus Supplement will also describe any special provisions
for the payment of additional amounts with respect to the Debt Securities,
certain United States federal income tax consequences and, any risk factors or
other special considerations applicable to such series of Debt Securities. If a
Debt Security is denominated in a foreign currency, such Debt Security may not
trade on a United States national securities exchange unless and until the
Commission has approved appropriate rule changes pursuant to the Securities Act
to accommodate the trading of such Debt Security.
Neither Indenture contains any restriction on the Corporation's ability to
enter into highly leveraged transactions or any provision affording special
protection to holders of Debt Securities in the event the Corporation engages in
a highly leveraged transaction. Further, neither Indenture contains any
provisions that would provide protection to holders of Debt Securities upon a
sudden and dramatic decline in the credit quality of the Corporation resulting
from a takeover, recapitalization or similar restructuring of the Corporation.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities other than Bearer Securities in temporary or
permanent global form will have interest coupons attached. (SECTION 201) Each
Indenture also provides that Bearer Securities or Registered Securities of a
series may be issuable in permanent global form. (SECTION 203) See "-- Permanent
Global Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of authorized denominations and of a
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the Holder upon request confirmed in writing, and
subject to the terms of the applicable Indenture, Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
of such series will be exchangeable into Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount,
tenor and terms. Bearer Securities surrendered in exchange for Registered
Securities between the close of business on a Regular Record Date or a Special
Record Date and the relevant date for payment of interest shall be surrendered
without the coupon relating to such date for payment of interest, and interest
will not be payable in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon when
due in accordance with
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<PAGE> 14
the terms of the applicable Indenture. Bearer Securities will not be issued in
exchange for Registered Securities. (SECTION 305) Each Bearer Security, other
than a temporary global Bearer Security, and each interest coupon will bear the
following legend: "Any United States Person who holds this obligation will be
subject to limitations under the United States federal income tax laws including
the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue
Code."
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Corporation for such purpose with respect to such series of
Debt Securities, without service charge and upon payment of any taxes and other
governmental charges. (SECTION 305) If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the Security Registrar) initially
designated by the Corporation with respect to any series of Debt Securities, the
Corporation may at any time rescind the designation of any such transfer agent
or approve a change in the location through which any such transfer agent (or
Security Registrar) acts, except that, if Debt Securities of a series are
issuable solely as Registered Securities, the Corporation will be required to
maintain a transfer agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Securities, the Corporation will
be required to maintain (in addition to the Security Registrar) a transfer agent
in a Place of Payment for such series located outside the United States. The
Corporation may at any time designate additional transfer agents with respect to
any series of Debt Securities. (SECTION 1002)
The Corporation shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any particular series to be redeemed for a
period of 15 days preceding the first publication of the relevant notice of
redemption, or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption, (ii) to register
the transfer of or exchange any Registered Security so selected for redemption
in whole or in part, except the unredeemed portion of any Registered Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of like tenor and terms of that series, provided that such Registered
Security shall be surrendered for redemption. (SECTION 305) Additional
information regarding restrictions on the issuance, exchange and transfer of and
special United States federal income tax considerations relating to Bearer
Securities will be set forth in the applicable Prospectus Supplement.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary Global Securities, without
interest coupons, to be deposited with a common depositary in London for Morgan
Guaranty Trust Corporation of New York, Brussels Office, as operator of the
Euroclear System ("Euroclear") and Cedel S.A. ("Cedel") for credit to designated
accounts. On and after the date determined as provided in any such temporary
Global Security and described in the applicable Prospectus Supplement, but
within a reasonable time, each such temporary Global Security will be
exchangeable for definitive Bearer Securities, definitive Registered Securities
or all or a portion of a permanent global Bearer Security, or any combination
thereof, as specified in such Prospectus Supplement. No definitive Bearer
Security or permanent global Bearer Security delivered in exchange for a portion
of a temporary Global Security shall be mailed or otherwise delivered to any
location in the United States in connection with such exchange.
Additional information regarding restrictions on and special United States
federal income tax consequences relating to temporary Global Securities will be
set forth in the Prospectus Supplement relating thereto.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent Global Security
may exchange such interests for Debt Securities of such series and of like tenor
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<PAGE> 15
and principal amount of any authorized form and denomination. Principal of and
any premium and interest on a permanent Global Security will be payable in the
manner described in the Prospectus Supplement relating thereto.
PAYMENTS AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
payments of principal of and premium, if any, and interest, if any, on Bearer
Securities will be payable in the currency designated in the Prospectus
Supplement, subject to any applicable laws and regulations, at such paying
agencies outside the United States as the Corporation may appoint from time to
time. Unless otherwise provided in the Prospectus Supplement, such payments may
be made, at the option of the Holder, by a check in the designated currency or
by transfer to an account in the designated currency maintained by the payee
with a bank located outside the United States. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of interest on Bearer Securities on
any Interest Payment Date will be made only against surrender of the coupon
relating to such Interest Payment Date to a paying agent outside the United
States. (SECTION 1001) No payment with respect to any Bearer Security will be
made at any office or paying agency maintained by the Corporation in the United
States nor will any such payment be made by transfer to an account, or by mail
to an address, in the United States. Notwithstanding the foregoing, payments of
principal of and premium, if any, and interest, if any, on Bearer Securities
denominated and payable in U.S. dollars will be made in U.S. dollars at an
office or agency of, and designated by, the Corporation located in the United
States, if payment of the full amount thereof in U.S. dollars at all paying
agencies outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions, and the Trustee receives an
opinion of counsel that such payment within the United States is legal. (SECTION
1002) As used in the Prospectus, "United States" means the United States of
America (including the States and the District of Columbia) and its possessions.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and premium, if any, and interest, if any, on a Registered
Security will be payable in the currency designated in the Prospectus
Supplement, and interest will be payable at the office of such paying agent or
paying agents as the Corporation may appoint from time to time, except that, at
the option of the Corporation, payment of any interest may be made by a check in
such currency mailed to the Holder at such Holder's registered address or by
wire transfer to an account in such currency designated by such Holder in
writing not less than ten days prior to the date of such payment. Unless
otherwise indicated in the applicable Prospectus Supplement, payment of any
installment of interest on a Registered Security will be made to the Person in
whose name such Registered Security is registered at the close of business on
the Regular Record Date for such payments. (SECTION 307) Unless otherwise
indicated in the applicable Prospectus Supplement, principal payable at maturity
will be paid to the registered holder upon surrender of the Registered Security
at the office of a duly appointed paying agent.
The paying agents outside the United States initially appointed by the
Corporation for a series of Debt Securities will be named in the applicable
Prospectus Supplement. The Corporation may terminate the appointment of any of
the paying agents from time to time, except that the Corporation will maintain
at least one paying agent outside the United States so long as any Bearer
Securities are outstanding where Bearer Securities may be presented for payment
and may be surrendered for exchange, provided that so long as any series of Debt
Securities is listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Corporation will maintain a paying agent in London or Luxembourg or any other
required city located outside the United States, as the case may be, for such
series of Debt Securities. (SECTION 1002)
All moneys paid by the Corporation to a paying agent for the payment of
principal of or premium, if any, or interest, if any, on any Debt Security that
remains unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will, at request of the Corporation,
be repaid to the Corporation, and the Holder of such Debt Security or any coupon
appertaining thereto will thereafter look only to the Corporation for payment
thereof. (SECTION 1003)
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<PAGE> 16
COVENANTS CONTAINED IN INDENTURES
The Senior Indenture provides that the Corporation will not, and will not
permit any Subsidiary to, sell or otherwise dispose of, or permit any "Principal
Subsidiary Bank" (defined as any Subsidiary Bank having total assets in excess
of 10% of the total consolidated assets of the Corporation and its Subsidiaries)
to issue (except to the Corporation), shares of "Capital Stock" (defined as
outstanding shares of stock of any class), or securities convertible into
Capital Stock, of any Principal Subsidiary Bank, or any Subsidiary owning,
directly or indirectly, in whole or in part, Capital Stock of a Principal
Subsidiary Bank, with the following exceptions: (i) sales of directors'
qualifying shares; (ii) sales or other dispositions for fair market value if,
after giving effect to such disposition and to the issuance of any shares
issuable upon conversion or exchange of securities convertible or exchangeable
into Capital Stock, the Corporation would own, directly or indirectly, through
Subsidiaries not less than 80% of the shares of each class of Capital Stock of
such Principal Subsidiary Bank; (iii) sales or other dispositions or issuances
made in compliance with an order or direction of a court or regulatory authority
of competent jurisdiction; or (iv) sales of Capital Stock by any Principal
Subsidiary Bank to its stockholders where the sale does not reduce the
percentage of shares of the same class owned by the Corporation. (SECTION 1005
OF THE SENIOR INDENTURE) At the date hereof, the only Subsidiary Bank which is a
Principal Subsidiary Bank is the Bank. Notwithstanding the foregoing, any
Principal Subsidiary Bank may be merged into or consolidated with another
banking institution organized under the laws of the United States, any State
thereof or the District of Columbia, if after giving effect to such merger or
consolidation, the Corporation or any Wholly-Owned Subsidiary owns at least 80%
of the Capital Stock of such other banking institution then issued and
outstanding free and clear of any security interest and if, immediately after
giving effect thereto, no default or Event of Default shall have happened and be
continuing.
The Subordinated Indenture does not contain the foregoing covenant.
The Corporation is not restricted by the Indentures from incurring,
assuming or becoming liable for any type of debt or other obligations, from
creating liens on its property for any purpose or from paying dividends or
making distributions on its Capital Stock or purchasing or redeeming its Capital
Stock. The Indentures do not require the maintenance of any financial ratios or
specified levels of net worth or liquidity. In addition, the Indentures do not
contain any provision which would require the Corporation to repurchase or
redeem or otherwise modify the terms of any of its Debt Securities upon a change
in control or other events involving the Corporation which may adversely affect
the creditworthiness of the Debt Securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Corporation may not consolidate with or merge with or into, or transfer
or lease its assets substantially as an entirety to, any Person unless (i) the
successor Person is a corporation organized and validly existing under the laws
of a domestic jurisdiction and expressly assumes the Corporation's obligations
on the Debt Securities and under the applicable Indenture; and (ii) after giving
effect to the transaction no Event of Default, and no event which, after notice
or lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing. (SECTION 801)
MODIFICATION AND WAIVER
Except as to certain modifications and amendments not adverse to Holders of
Debt Securities, modifications and amendments of and waivers of compliance with
provisions of each Indenture may be made only with the consent of the Holders of
not less than a majority in principal amount of the Outstanding Debt Securities
of each series thereunder affected by such modification, amendment or waiver;
provided that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security or coupon affected thereby, (i) change
the Stated Maturity of the principal or any installment of principal or any
installment of interest, if any; (ii) reduce the amount of principal or interest
thereon, or any premium payable upon redemption or repayment thereof or in the
case of an Original Issue Discount Security the amount of principal payable upon
acceleration of the Maturity thereof; (iii) change the place of payment or the
currency in which principal or interest is payable, if any; (iv) impair the
right to institute suit for the enforcement of any payment of the principal,
premium, if any, and interest, if any, or adversely affect the right
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<PAGE> 17
of repayment, if any, at the option of the Holder; (v) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the applicable
Indenture or for waiver of compliance with certain provisions of the applicable
Indenture or for waiver of certain defaults; (vi) reduce the requirements
contained in the applicable Indenture for quorum or voting; (vii) in the case of
Subordinated Securities convertible into Common Stock, impair any right to
convert such Subordinated Securities; or (viii) modify any of the above
provisions. (SECTION 902)
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issued thereunder if Debt Securities of that series
are issuable in whole or in part as Bearer Securities. (SECTION 1401 OF THE
SENIOR INDENTURE, SECTION 1601 OF THE SUBORDINATED INDENTURE) A meeting may be
called at any time by the Trustee for such Debt Securities, or upon the request
of the Corporation or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of such series, in any such case upon notice given
in accordance with the Indenture with respect thereto. (SECTION 1402 OF THE
SENIOR INDENTURE, SECTION 1602 OF THE SUBORDINATED INDENTURE) Except as limited
by the proviso in the preceding paragraph, any resolution presented at a meeting
or adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series; provided, however, that, except as
limited by the proviso in the preceding paragraph, any resolution with respect
to any consent or waiver which may be given by the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of a series
issued under an Indenture may be adopted at a meeting or an adjourned meeting at
which a quorum is present only by the affirmative vote of the Holders of a
majority in principal amount of such Outstanding Debt Securities of that series;
and provided, further, that, except as limited by the proviso in the preceding
paragraph, any resolution with respect to any demand, consent, waiver or other
action which may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Debt Securities of a series issued under an Indenture may be adopted
at a meeting or adjourned meeting at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Debt Securities of that series. (SECTION 1404 OF THE SENIOR
INDENTURE, SECTION 1604 OF THE SUBORDINATED INDENTURE)
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the applicable Indenture
with respect thereto will be binding on all Holders of Debt Securities of that
series and the related coupons issued under that Indenture. The quorum at any
meeting of Holders of a series of Debt Securities called to adopt a resolution,
and at any reconvened meeting, will be persons holding or representing a
majority in principal amount of the Outstanding Debt Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of a
series, the Persons holding or representing a majority in principal amount of
the Outstanding Debt Securities of such series issued under that Indenture will
constitute a quorum. (SECTION 1404 OF THE SENIOR INDENTURE, SECTION 1604 OF THE
SUBORDINATED INDENTURE)
EVENTS OF DEFAULT
Unless otherwise provided in the applicable Prospectus Supplement, any
series of Senior Securities issued under the Senior Indenture will provide that
the following shall constitute Events of Default with respect to such series:
(i) default in payment of principal of or premium, if any, on any Senior
Security of such series when due; (ii) default for 30 days in payment of
interest, if any, on any Senior Security of such series or related coupon, if
any, when due; (iii) default in the deposit of any sinking fund payment on any
Senior Security of such series when due; (iv) default in the performance of
certain covenants contained in such Indenture; (v) default in the performance of
any other covenant in such Indenture, continued for 30 days after written notice
thereof by the Trustee thereunder or the Holders of at least 25% in principal
amount of the Outstanding Senior Securities of such series issued under that
Indenture; and (vi) certain events of bankruptcy, insolvency or reorganization
of the Corporation. (SECTION 501 OF THE SENIOR INDENTURE)
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Unless otherwise provided in the applicable Prospectus Supplement, any
series of Subordinated Securities issued under the Subordinated Indenture will
provide that the only Event of Default will be certain events of bankruptcy of
the Corporation. (SECTION 501 OF THE SUBORDINATED INDENTURE) Unless specifically
stated in the applicable Prospectus Supplement for a particular series of
Subordinated Securities, there is no right of acceleration of the payment of
principal of the Subordinated Securities upon a default in the payment of
principal, premium, if any, or interest, if any, or in the performance of any
covenant or agreement in the Subordinated Securities or Subordinated Indenture.
In the event of a default in the payment of principal, premium, if any, or
interest, if any, default of any sinking fund payment; or the performance of any
covenant or agreement in the Subordinated Securities or Subordinated Indenture,
the Trustee, subject to certain limitations and conditions, may institute
judicial proceedings to enforce payment of such principal, premium, if any, or
interest, if any, or to obtain the performance of such covenant or agreement or
any other proper remedy. (SECTION 503 OF THE SUBORDINATED INDENTURE)
The Corporation is required to file with each Trustee annually an Officers'
Certificate concerning the absence of certain defaults under the terms of the
Indentures. (SECTION 1007 OF THE SENIOR INDENTURE, SECTION 1004 OF THE
SUBORDINATED INDENTURE) Each Indenture provides that if an Event of Default
specified therein shall occur and be continuing, either the Trustee thereunder
or the Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of such series issued under that Indenture may declare the principal
of all such Debt Securities (or in the case of Original Issue Discount
Securities, such portion of the principal amount thereof as may be specified in
the terms thereof) to be due and payable. (SECTION 502) In certain cases, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series may, on behalf of the Holders of all Debt Securities of any such
series and any related coupons, waive any past default or Event of Default
except a default (i) in payment of the principal of or premium, if any, or
interest, if any, on any of the Debt Securities of such series and (ii) in
respect of a covenant or provision of the Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security of
such series or coupon affected. (SECTION 513)
Each Indenture contains a provision entitling the Trustee thereunder,
subject to the duty of such Trustee during default to act with the required
standard of care, to be indemnified by the Holders of the Debt Securities of any
series thereunder or any related coupons before proceeding to exercise any right
or power under such Indenture with respect to such series at the request of such
Holders. (SECTION 603) Each Indenture provides that no Holder of any Debt
Securities of any series thereunder or any related coupons may institute any
proceeding, judicial or otherwise, to enforce such Indenture except in the case
where the Trustee thereunder fails to act for 60 days after it receives written
notice of default and the Trustee receives a request to enforce such Indenture
by the Holders of not less than 25% in aggregate principal amount of the
Outstanding Debt Securities of such series and an offer of reasonable indemnity.
(SECTION 507) This provision will not prevent any Holder of Debt Securities or
any related coupons from enforcing payment of the principal thereof and premium,
if any, and interest, if any, thereon at the respective due dates thereof.
(SECTION 508) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series issued under an Indenture may direct
the time, method and place of conducting any proceedings for any remedy
available to the Trustee for such Debt Securities or exercising any trust or
power conferred on it with respect to the Debt Securities of such series.
However, such Trustee may refuse to follow any direction that conflicts with law
or the Indenture under which it serves or which would be unjustly prejudicial to
Holders not joining therein. (SECTION 512)
The Subordinated Indenture provides that the Trustee thereunder will give
to the Holders of Debt Securities notice of a default if not cured or waived,
but, except in the case of a default in the payment of principal of or premium,
if any, or interest, if any, on any Debt Securities of such series or any
related coupons or in the payment of any sinking fund installment with respect
to Debt Securities of such series or in the exchange of Capital Securities for
Debt Securities of such series, the Trustee for such Debt Securities shall be
protected in withholding such notice if it determines in good faith that the
withholding of such notice is in the interest of the Holders of such Debt
Securities. (SECTION 602 OF THE SUBORDINATED INDENTURE)
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The Senior Indenture provides that the Trustee thereunder will give to the
Holders of Debt Securities notice of a default, however, in the case of default
in the performance, or breach, of any covenant or warranty of the Company under
the Senior Indenture, and continuance of such default or breach for 30 days
after notice of default is given to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, requiring it to be remedied, the
Trustee for such Debt Securities will not give notice to Holders of such Debt
Securities until at least 30 days after the occurrence of such default. (SECTION
602 OF THE SENIOR INDENTURE)
DEFEASANCE AND DISCHARGE
The Corporation may be discharged from any and all obligations in respect
of the Debt Securities of any series (except for certain obligations relating to
temporary Debt Securities and exchange of Debt Securities, registration of
transfer or exchange of Debt Securities of such series, replacement of stolen,
lost or mutilated Debt Securities of such series, maintenance of paying
agencies, obligations to hold monies for payment in trust and payment of
additional amounts, if any, required in consequence of United States withholding
taxes imposed on payments to non-U.S. persons) upon the deposit with the
Trustee, in trust, of money and/or, to the extent such Debt Securities are
denominated and payable in U.S. dollars only, Eligible Instruments which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide money in an amount sufficient to pay the principal of
(and premium, if any), each installment of interest on, and any mandatory
sinking fund or analogous payments on, the Debt Securities of such series on the
Stated Maturity of such payments in accordance with the terms of the applicable
Indenture and the Debt Securities of such series. Such a trust may be
established only if, among other things, (a) the Corporation has delivered to
the Trustee an Opinion of Counsel to the effect that (i) the Corporation has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of the applicable Indenture there has been a
change in applicable federal income tax law, in either case, to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of
Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge, and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and (b) the Debt Securities
of such series, if then listed on any domestic or foreign securities exchange,
will not be delisted as a result of such deposit, defeasance and discharge.
(SECTION 403) In the event of any such defeasance and discharge of Debt
Securities of such series, Holders of Debt Securities of such series would be
able to look only to such trust fund for payment of principal of and any premium
and any interest on their Debt Securities until Maturity.
The Corporation may terminate certain of its obligations under each
Indenture with respect to the Debt Securities of any series thereunder,
including its obligations to comply with the covenants described under " --
Covenants Contained in Indentures" above, with respect to such Debt Securities,
on the terms and subject to the conditions contained in such Indentures, by
depositing in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in U.S. dollars only, Eligible
Instruments which, through the payment of principal and interest in accordance
with their terms, will provide money in an amount sufficient to pay the
principal and premium, if any, and interest, if any, on such Debt Securities,
and any mandatory sinking fund, repayment or analogous payments thereon, on the
scheduled due dates therefor. Such deposit and termination is conditioned, among
other things, upon the Corporation's delivery of an opinion of counsel that the
Holders of such Debt Securities will have no federal income tax consequences as
a result of such deposit and termination. Such termination will not relieve the
Corporation of its obligation to pay when due the principal of or interest on
such Debt Securities if such Debt Securities of such series are not paid from
the money or Eligible Instruments held by the Trustee for the payment thereof.
(SECTION 1501 OF THE SENIOR INDENTURE, SECTION 1701 OF THE SUBORDINATED
INDENTURE) The applicable Prospectus Supplement may further describe the
provisions, if any, permitting or restricting such defeasance with respect to
the Debt Securities of a particular series. In the event the Corporation
exercises its option to omit compliance with the covenants described under
" -- Covenants Contained in Indentures" above with respect to the Debt
Securities of any series as described above and the Debt Securities of such
series are declared due and payable because of the occurrence of any Event of
Default, then the amount of money and
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Eligible Instruments on deposit with the Trustee will be sufficient to pay
amounts due on the Debt Securities of such series at the time of their Stated
Maturity but may not be sufficient to pay amounts due on the Debt Securities of
such series at the time of the acceleration resulting from such Event of
Default. The Corporation shall in any event remain liable for such payments as
provided in the applicable Indenture.
SUBORDINATION
The Subordinated Securities shall be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Debt (as defined below) of the Corporation. In the event that the Corporation
shall default in the payment of any principal, premium, if any, or interest, if
any, on any Senior Debt when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made for
principal, premium, if any, or interest, if any, on the Subordinated Securities,
or in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Subordinated Securities. (SECTION 1801 OF THE
SUBORDINATED INDENTURE) "Senior Debt" means any obligation of the Corporation to
its creditors, whether now outstanding or subsequently incurred, other than (i)
any obligation as to which it is provided that such obligation is not Senior
Debt and (ii) the Subordinated Securities. (SECTION 101 OF THE SUBORDINATED
INDENTURE) As of September 30, 1996, the Corporation had no Senior Debt
outstanding.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding-up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of creditors or (iv) any
other marshalling of the assets of the Corporation, all Senior Debt (including
any interest thereon accruing after the commencement of any such proceedings)
shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made on account of the principal of or
interest on the Subordinated Securities. In such event, any payment or
distribution on account of the principal of or interest on the Subordinated
Securities, whether in cash, securities or other property (other than securities
of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
Subordinated Securities, to the payment of all Senior Debt at the time
outstanding, and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Securities shall be paid or delivered directly to the holders of
Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full. (SECTION
1801 OF THE SUBORDINATED INDENTURE)
In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Debt, the Holders of Subordinated Securities,
together with the holders of any obligations of the Corporation ranking on a
parity with the Subordinated Securities, shall be entitled to be repaid from the
remaining assets of the Corporation the amounts at the time due and owing on
account of unpaid principal, premium, if any, and interest, if any, on the
Subordinated Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or obligations of the Corporation ranking junior to the
Subordinated Securities and such other obligations. If any payment or
distribution on account of the principal of or interest on the Subordinated
Securities of any character or any security, whether in cash, securities or
other property (other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Securities, to the payment of all
Senior Debt at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment) shall be received
by any Holder of any Subordinated Securities in contravention of any of the
terms of the Subordinated Indenture and before all
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the Senior Debt shall have been paid in full, such payment or distribution or
security shall be received in trust for the benefit of, and shall be paid over
or delivered and transferred to, the holders of the Senior Debt at the time
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Debt remaining unpaid to the extent
necessary to pay all such Senior Debt in full. (SECTION 1801 OF THE SUBORDINATED
INDENTURE) By reason of such subordination, in the event of the insolvency of
the Corporation, holders of Senior Debt may receive more, ratably, and holders
of the Subordinated Securities having a claim pursuant to such securities may
receive less, ratably, than the other creditors of the Corporation. Such
subordination will not prevent the occurrence of any Event of Default in respect
of the Subordinated Securities.
CONVERSION OF SUBORDINATED CONVERTIBLE SECURITIES
The Holders of Subordinated Securities of a specified series that are
convertible into Common Stock, Preferred Shares or Depositary Shares of the
Corporation ("Subordinated Convertible Securities") will be entitled at certain
times specified in the applicable Prospectus Supplement, subject to prior
redemption, repayment or repurchase, to convert any Subordinated Convertible
Securities of such series (in denominations set forth in the applicable
Prospectus Supplement) into Common Stock, Preferred Shares or Depositary Shares,
as the case may be, at the conversion price set forth in the applicable
Prospectus Supplement, subject to adjustment as described below and in the
applicable Prospectus Supplement. Except as described below, no adjustment will
be made on conversion of any Subordinated Convertible Securities for interest
accrued thereon or for dividends on any Common Stock, Preferred Shares or
Depositary Shares issued. (SECTION 1903 OF THE SUBORDINATED INDENTURE) If any
Subordinated Convertible Securities (not called for redemption or submitted for
repayment) are converted between a Regular Record Date for the payment of
interest and the next succeeding Interest Payment Date, such Subordinated
Convertible Securities must be accompanied by funds equal to the interest
payable on such succeeding Interest Payment Date on the principal amount so
converted. (SECTION 1903 OF THE SUBORDINATED INDENTURE) The Corporation is not
required to issue fractional shares of Common Stock upon conversion of
Subordinated Convertible Securities that are convertible into Common Stock and,
in lieu thereof, will pay a cash adjustment based upon the Closing Price (as
defined in the Subordinated Indenture) of the Common Stock on the last business
day prior to the date of conversion. (SECTION 1904 OF THE SUBORDINATED
INDENTURE) In the case of Subordinated Convertible Securities called for
redemption or submitted for repayment, conversion rights will expire at the
close of business on the redemption date or repayment date, as the case may be.
(SECTION 1902 OF THE SUBORDINATED INDENTURE)
Unless otherwise indicated in the applicable Prospectus Supplement, the
conversion price for Subordinated Convertible Securities that are convertible
into Common Stock is subject to adjustment under formulas set forth in the
Subordinated Indenture upon the occurrence of certain events, including the
issuance of the Corporation's capital stock as a dividend or distribution on the
Common Stock; subdivisions and combinations of the Common Stock; the issuance to
all holders of Common Stock of certain rights or warrants entitling them to
subscribe for or purchase Common Stock within 45 days after the date fixed for
the determination of the stockholders entitled to receive such rights or
warrants, at less than the current market price (as defined in the Subordinated
Indenture); and the distribution to all holders of Common Stock of evidences of
indebtedness or assets of the Corporation (excluding certain cash dividends and
distributions described in the next paragraph) or rights or warrants (excluding
those referred to above). (SECTION 1906 OF THE SUBORDINATED INDENTURE) In the
event that the Corporation shall distribute any rights or warrants to acquire
capital stock ("Capital Stock Rights") pursuant to which separate certificates
representing such Capital Stock Rights will be distributed subsequent to the
initial distribution of such Capital Stock Rights (whether or not such
distribution shall have occurred prior to the date of the issuance of a series
of Subordinated Convertible Securities), such subsequent distribution shall be
deemed to be the distribution of such Capital Stock Rights; provided that the
Corporation may, in lieu of making any adjustment in the conversion price upon a
distribution of separate certificates representing such Capital Stock Rights,
make proper provision so that each Holder of such a Subordinated Convertible
Security who converts such Subordinated Convertible Security (or any portion
thereof) (a) before the record date for such distribution of separate
certificates shall be entitled to receive upon such conversion shares of Common
Stock issued with
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Capital Stock Rights and (b) after such record date and prior to the expiration,
redemption or termination of such Capital Stock Rights shall be entitled to
receive upon such conversion, in addition to the shares of Common Stock issuable
upon such conversion, the same number of such Capital Stock Rights as would a
holder of the number of shares of Common Stock that such Subordinated
Convertible Security so converted would have entitled the holder thereof to
acquire in accordance with the terms and provisions applicable to the Capital
Stock Rights if such Subordinated Convertible Security were converted
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Corporation or any majority owned subsidiary
shall not be deemed outstanding for the purpose of any adjustment. (SECTION 1906
OF THE SUBORDINATED INDENTURE)
No adjustment in the conversion price of Subordinated Convertible
Securities that are convertible into Common Stock will be made for regular
quarterly or other periodic or recurring cash dividends or distributions or for
cash dividends or distributions to the extent paid from retained earnings. No
adjustment in the conversion price of Subordinated Convertible Securities that
are convertible into Common Stock will be required unless such adjustment would
require a change of at least 1% in the conversion price then in effect, provided
that any such adjustment not so made will be carried forward and taken into
account in any subsequent adjustment; and provided, further, that any such
adjustment not so made shall be made no later than three years after the
occurrence of the event requiring such adjustment to be made or carried forward.
Notwithstanding any of the foregoing, the issuance of Common Stock under the
Corporation's Dividend Reinvestment and Stock Purchase Plan shall not require an
adjustment to the conversion price of Subordinated Convertible Securities that
are convertible into Common Stock. The Corporation reserves the right to make
such reductions in the conversion price in addition to those required in the
foregoing provisions as the Corporation, in its discretion, shall determine to
be advisable in order that certain stock-related distributions thereafter made
by the Corporation to its stockholders shall not be taxable. (SECTION 1906 OF
THE SUBORDINATED INDENTURE) Except as stated above, the conversion price will
not be adjusted for the issuance of Common Stock or any securities convertible
into or exchangeable for Common Stock, or securities carrying the right to
purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case, as a result of which
holders of Common Stock shall be entitled to receive stock, securities, other
property or assets (including cash) with respect to, or in exchange for, such
Common Stock, the Holders of the Subordinated Convertible Securities then
outstanding that are convertible into Common Stock will be entitled thereafter
to convert such Subordinated Convertible Securities into the kind and amount of
shares of stock and other securities or property which they would have received
upon such reclassification, change, consolidation, merger, sale or conveyance
had such Subordinated Convertible Securities been converted into Common Stock
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. (SECTION 1907 OF THE SUBORDINATED INDENTURE)
In the event of a taxable distribution to holders of Common Stock (or other
transaction) which results in any adjustment of the conversion price of
Subordinated Convertible Securities that are convertible into Common Stock, the
Holders of such Subordinated Convertible Securities may, in certain
circumstances, be deemed to have received a distribution subject to United
States income tax as a dividend; in certain other circumstances, the absence of
such an adjustment may result in a taxable dividend to the holders of Common
Stock or such Subordinated Convertible Securities.
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DESCRIPTION OF PREFERRED SHARES
The following description of the terms of the Preferred Shares sets forth
certain general terms and provisions of the Preferred Shares to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Shares offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating to such series of the Preferred Shares. If so
indicated in the Prospectus Supplement, the terms of any such series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Shares set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Certificate of Designations relating to each series of the
Preferred Shares.
GENERAL
Pursuant to the Corporation's Articles of Incorporation, as amended (the
"Articles"), the Board of Directors of the Corporation has the authority,
without further stockholder action, to issue from time to time a maximum of
1,000,000 shares of preferred stock, without par value ("Preferred Stock"),
including shares issued or reserved for issuance, in one or more series and with
such terms and at such times and for such consideration as the Board of
Directors of the Corporation may determine. The terms and conditions of the
Preferred Stock are governed by the laws of the state of Ohio as well as by the
Corporation's Articles, and the Corporation's Code of Regulations. The authority
of the Board of Directors of the Corporation includes the determination or
fixing of the following with respect to shares of any series thereof: (i) the
number of shares and designation or title thereof; (ii) rights as to dividends;
(iii) whether and upon what terms the shares are to be redeemable; (iv) the
rights of the holders upon the dissolution, or upon the distribution of assets,
of the Corporation; (v) whether and upon what terms the shares shall have a
purchase, retirement or sinking fund; (vi) whether and upon what terms the
shares are to be convertible; (vii) the voting rights, if any, which shall
apply; and (viii) any other preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions of such
series. At December 31, 1996, no shares of Preferred Stock were outstanding.
As described under "DESCRIPTION OF DEPOSITARY SHARES," the Corporation may,
at its option, elect to offer Depositary Shares evidenced by depositary receipts
("Depositary Receipts"), each representing a fractional interest (to be
specified in the Prospectus Supplement relating to the particular series of the
Preferred Shares) in a share of the particular series of the Preferred Shares
issued and deposited with a Depositary (as defined).
Under interpretations adopted by the Federal Reserve Board, if the holders
of any series of the Preferred Shares become entitled to vote for the election
of directors because dividends on such series are in arrears as described under
"-- Voting Rights" below, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% or
more if it otherwise exercises a "controlling influence" over the Corporation)
may then be subject to regulation as a bank holding company in accordance with
the BHCA. In addition, at such time as such series is deemed a class of voting
securities, any other bank holding company may be required to obtain the prior
approval of the Federal Reserve Board to acquire 5% or more of such series, and
any person other than a bank holding company may be required to obtain the prior
approval of the Federal Reserve Board to acquire 10% or more of such series.
The Preferred Shares shall have the dividend, liquidation, redemption,
voting and conversion rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of the Preferred Shares.
For information concerning legal limitations on the ability of the Bank to
supply funds to the Corporation, see "CERTAIN REGULATORY MATTERS." Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Shares offered thereby for specific terms, including (i) the title,
stated value and liquidation preference of such Preferred Shares and the number
of Preferred Shares offered; (ii) the initial public offering price at which
such Preferred Shares will be issued; (iii) the dividend rate or rates (or
method of calculation), the dividend periods, the dates on which dividends shall
be payable, and whether such dividends shall be cumulative or noncumulative and,
if cumulative, the dates from which dividends shall commence to cumulate; (iv)
any repurchase, redemption or sinking fund provisions;
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(v) any conversion provisions; (vi) whether the Corporation has elected to offer
Depositary Shares as described under "DESCRIPTION OF DEPOSITARY SHARES;" and
(vii) any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
The Preferred Shares will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Shares, each series of the Preferred Shares will rank on
a parity in all respects with each other series of the Preferred Shares and will
rank senior to the Corporation's Series A Preferred Stock described below. The
Preferred Shares will have no preemptive rights to subscribe for any additional
securities which may be issued by the Corporation. Unless otherwise specified in
the applicable Prospectus Supplement, the Bank will be the transfer agent and
registrar for the Preferred Shares and any Depositary Shares.
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Shares will rank on a parity in all respects with the outstanding
Preferred Stock of the Corporation and shall rank senior to the Series A
Preferred Stock as to the payment of dividends and the distribution of assets.
The Common Stock of the Corporation, including the Common Stock that may be
issued upon conversion of the Preferred Shares or in exchange for, or upon
conversion of, Subordinated Securities, will be subject to any prior rights of
the Preferred Stock then outstanding. Therefore, the rights of any Preferred
Stock that may be subsequently issued, may limit the rights of the holders of
the Preferred Shares and Common Stock of the Corporation.
DIVIDENDS
The holders of the Preferred Shares of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Corporation
or a duly authorized committee thereof, out of funds legally available therefor,
cash dividends at such rates and on such dates as will be set forth in the
Prospectus Supplement relating to such series. Such rates may be fixed or
variable or both. If variable, the formula used for determining the dividend
rate for each dividend period will be set forth in the Prospectus Supplement.
Dividends will be payable to the holders of record as they appear on the stock
books of the Corporation on such record dates as will be fixed by the Board of
Directors of the Corporation or a duly authorized committee thereof.
Dividends on any series of the Preferred Shares may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the Board
of Directors of the Corporation fails to declare a dividend payable on a
dividend payment date on any series of the Preferred Shares for which dividends
are noncumulative ("Noncumulative Preferred Shares"), then the holders of such
series of the Preferred Shares will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Corporation will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment dates.
No full dividends will be declared or paid or set apart for payment on any
stock of the Corporation ranking, as to dividends, on a parity with or junior to
the Preferred Shares for any period unless full dividends on the Preferred
Shares of each series (including any accumulated dividends) have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment. When dividends are not paid in full
upon any series of Preferred Shares and any Preferred Stock ranking on a parity
as to dividends with the Preferred Shares, all dividends declared or made upon
Preferred Shares of each series and any Preferred Stock ranking on a parity as
to dividends with the Preferred Shares shall be declared pro rata so that the
amount of dividends declared per share on Preferred Shares of each series and
such Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share (which, in the case of Noncumulative Preferred
Shares, shall not include any accumulation in respect of unpaid dividends for
prior dividend periods) on shares of each series of the Preferred Shares and
such Preferred Stock bear to each other. Except as provided in the preceding
sentence, no dividend (other than dividends or distributions paid in shares of,
or options, warrants or rights to subscribe for or purchase shares of, Common
Stock or any other stock of the Corporation ranking junior to the Preferred
Shares as to dividends and upon liquidation) shall be declared or paid or set
aside for payment or other distribution declared or made upon the Common Stock
or any other stock of the Corporation ranking junior to or on a parity with the
Preferred Shares as to dividends or upon liquidation, nor shall any Common Stock
nor any other stock of the
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Corporation ranking junior to or on a parity with the Preferred Shares as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Corporation (except
by conversion into or exchange for stock of the Corporation ranking junior to
the Preferred Shares as to dividends and upon liquidation) unless, in each case,
the full dividends on each series of the Preferred Shares shall have been paid
or declared and set aside for payment. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on any
series of the Preferred Shares which may be in arrears.
REDEMPTION
A series of the Preferred Shares may be redeemable, in whole or in part, at
the option of the Corporation, and may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, in each case, upon terms, at the times
and at the redemption prices set forth in the Prospectus Supplement relating to
such series. Preferred Shares redeemed by the Corporation will be restored to
the status of authorized but unissued shares of Preferred Stock, as the case may
be.
The Prospectus Supplement relating to a series of the Preferred Shares
which is subject to mandatory redemption will specify the number of shares of
such series of the Preferred Shares which shall be redeemed by the Corporation
in each year commencing after a date to be specified, at a redemption price per
share to be specified, together with an amount equal to all accrued and unpaid
dividends thereon to the date of redemption. The redemption price may be payable
in cash or other property, as specified in the Prospectus Supplement relating to
such series of the Preferred Shares. If the redemption price is payable only
from the net proceeds of the issuance of capital stock of the Corporation, the
terms of such series may provide that, if no such capital stock shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, the applicable shares of
such series of the Preferred Shares shall automatically and mandatorily be
converted into shares of the applicable capital stock of the Corporation
pursuant to conversion provisions specified in the Prospectus Supplement
relating to such series of the Preferred Shares.
If fewer than all of the outstanding shares of any series of the Preferred
Shares are to be redeemed, the number of Preferred Shares to be redeemed will be
determined by the Board of Directors of the Corporation and such Preferred
Shares shall be redeemed pro rata from the holders of record of such Preferred
Shares in proportion to the number of such Preferred Shares held by such holders
(with adjustments to avoid redemption of fractional shares).
Notwithstanding the foregoing, if any dividends, including any
accumulation, on Preferred Shares of any series are in arrears, no Preferred
Shares of such series shall be redeemed unless all outstanding Preferred Shares
of such series are simultaneously redeemed, and the Corporation shall not
purchase or otherwise acquire any Preferred Shares of such series; provided,
however, that the foregoing shall not prevent the purchase or acquisition of
Preferred Shares of such series pursuant to a purchase or exchange offer,
provided that such offer is made on the same terms to all holders of such series
of the Preferred Shares.
Notice of redemption shall be given by mailing the same to each record
holder of the shares to be redeemed, not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof, to the respective addresses of
such holders as the same shall appear on the stock books of the Corporation.
Each such notice shall state (i) the redemption date; (ii) the number of
Preferred Shares and series of the Preferred Shares to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such Preferred
Shares are to be surrendered for payment of the redemption price; (v) that
dividends on the Preferred Shares to be redeemed will cease to accrue on such
redemption date; and (vi) the date upon which the holder's conversion rights as
to such Preferred Shares, if any, shall terminate. If fewer than all Preferred
Shares of any series of the Preferred Shares held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the number or
percentage of Preferred Shares to be redeemed from such holder.
If notice of redemption has been given, from and after the redemption date
for the shares of the series of the Preferred Shares called for redemption
(unless default shall be made by the Corporation in providing
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money for the payment of the redemption price of the Preferred Shares so called
for redemption), dividends on the Preferred Shares so called for redemption
shall cease to accrue and such Preferred Shares shall no longer be deemed to be
outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive the redemption price) shall cease. Upon
surrender in accordance with such notice of the certificates representing any
Preferred Shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors of the Corporation shall so require and the notice shall so
state), the redemption price set forth above shall be paid out of funds provided
by the Corporation. If fewer than all of the Preferred Shares represented by any
such certificate are redeemed, a new certificate shall be issued representing
the unredeemed Preferred Shares without cost to the holder thereof.
In the event that a redemption described above is deemed to be a "tender
offer" within the meaning of Rule 14e-1 under the Exchange Act, the Company will
comply with all applicable provisions of the Exchange Act.
CONVERSION
The Prospectus Supplement relating to a series of the Preferred Shares
which is convertible will state the terms on which Preferred Shares of that
series are convertible into shares of Common Stock or a series of Preferred
Stock.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of each series of the
Preferred Shares and any Preferred Stock ranking on a parity with such series of
Preferred Shares upon liquidation will be entitled to receive out of the assets
of the Corporation available for distribution to stockholders, before any
distribution of assets is made to holders of the Common Stock or any other class
or series of stock of the Corporation ranking junior to such series of the
Preferred Shares upon liquidation, liquidation distributions in the amount set
forth in the Prospectus Supplement relating to such series of the Preferred
Shares plus an amount equal to the sum of all accrued and unpaid dividends
(whether or not earned or declared) for the then current dividend period and, if
such series of the Preferred Shares is cumulative, for all dividend periods
prior thereto. Neither the sale of all or substantially all of the property and
assets of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation nor the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation
available for distribution to the holders of the Preferred Shares of any series
and any other Preferred Stock of the Corporation ranking as to any such
distribution on a parity with such series of the Preferred Shares shall be
insufficient to pay in full all amounts to which such holders are entitled, no
such distribution shall be made on account of any shares of any other series of
the Preferred Shares or Preferred Stock of the Corporation ranking as to any
such distribution on a parity with the Preferred Shares of such series upon such
dissolution, liquidation or winding up unless proportionate distributive amounts
shall be paid on account of the Preferred Shares of such series, ratably, in
proportion to the full distributive amounts for which holders of all such parity
shares are respectively entitled upon such dissolution, liquidation or winding
up. After payment of the full amount of the liquidation distribution to which
they are entitled, the holders of such series of the Preferred Shares will have
no right or claim to any of the remaining assets of the Corporation.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of the Preferred Shares, or except as expressly required by
applicable law, the holders of the Preferred Shares will not be entitled to
vote. In the event the Corporation issues shares of a series of the Preferred
Shares, unless otherwise indicated in the Prospectus Supplement relating to such
series, each share will be entitled to one vote on matters on which holders of
such series are entitled to vote. However, as more fully described under
"DESCRIPTION OF DEPOSITARY SHARES," if the Corporation elects to provide for the
issuance of Depositary Shares representing fractional interests in a share of
such series of the Preferred Shares, the
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holders of each such Depositary Share will, in effect, be entitled through the
Depositary to such fraction of a vote, rather than a full vote. In the case of
any series of Preferred Shares having one vote per share on matters on which
holders of such series are entitled to vote, the voting power of such series, on
matters on which holders of such series and holders of any other series of
Preferred Shares or a series of Preferred Stock are entitled to vote as a single
class, will depend on the number of shares in such series, not the aggregate
stated value, liquidation preference or initial offering price of the shares of
such series of the Preferred Shares.
Whenever dividends on any series of the Preferred Shares shall be in
arrears for such number of dividend periods which shall in the aggregate contain
not less than 540 days, the holders of shares of the Preferred Shares of such
series (voting together as a class with holders of shares of any one or more
series of Preferred Stock ranking on a parity with the Preferred Shares as to
dividends and upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two additional
directors on the terms set forth below and until all past dividends accumulated
on Preferred Shares of such series shall have been paid in full. Each holder of
Preferred Shares of such series will have one vote for each share of stock held
and each other series will have such number of votes, if any, for each share of
stock held as may be granted to them. In such case, the Board of Directors of
the Corporation will be increased by two directors, and the holders of the
Preferred Shares of such series (together with the holders of shares of any one
or more series of Preferred Stock ranking on such a parity and upon which like
voting rights have been conferred and are exercisable) will have the exclusive
right as members of such class, as outlined above, to elect two directors at the
next annual meeting of stockholders.
So long as any Preferred Shares of any series remain outstanding, the
Corporation will not, without the consent of the holders of the outstanding
Preferred Shares of such series and outstanding shares of all series of
Preferred Stock ranking on a parity with the Preferred Shares of such series
either as to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been conferred
and are then exercisable, by a vote of at least two-thirds of all such
outstanding Preferred Shares and shares of Preferred Stock voting together as a
class, given in person or by proxy, either in writing or at a meeting, (i)
authorize, create or issue, or increase the authorized or issued amount of, any
class or series of stock ranking prior to the Preferred Shares with respect to
payment of dividends or the distribution of assets on liquidation, dissolution
or winding up, or (ii) amend, alter or repeal, whether by merger, consolidation
or otherwise, the provisions of the Corporation's Articles or of the resolutions
contained in a Certificate of Designations for any series of the Preferred
Shares designating such series of the Preferred Shares and the preferences and
relative, participating, optional or other special rights and qualifications,
limitations and restrictions thereof, so as to adversely affect any right,
preference, privilege or voting power of the Preferred Shares or the holders
thereof; provided, however, that any increase in the amount of the authorized
Preferred Stock or the creation and issuance of other series of Preferred Stock,
or any increase in the amount of authorized shares of any series of Preferred
Stock, in each case, ranking on a parity with or junior to the Preferred Shares
with respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up will not be deemed to adversely affect
such rights, preferences, privileges or voting powers.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined) and of the Depositary Shares
and Depositary Receipts does not purport to be complete and is subject to and
qualified in its entirety by reference to the Deposit Agreement and Depositary
Receipts relating to each series of the Preferred Shares a form of which is
filed as an exhibit to the Registration Statement to which this Prospectus
pertains.
GENERAL
The Corporation may, at its option, elect to offer fractional interests in
Preferred Shares, rather than full Preferred Shares. In the event such option is
exercised, the Corporation will provide for the issuance by a Depositary to the
public of Depositary Receipts evidencing Depositary Shares, each of which will
represent a fractional interest (to be set forth in the Prospectus Supplement
relating to a particular series of the Preferred Shares) in a share of a
particular series of the Preferred Shares as described below.
The shares of any series of the Preferred Shares underlying the Depositary
Shares will be deposited under a separate deposit agreement (the "Deposit
Agreement") between the Corporation and a bank or trust company selected by the
Corporation having its principal executive office in the United States and
having a combined capital and surplus of at least $50,000,000 (the
"Depositary"). The Prospectus Supplement relating to a series of Depositary
Shares will set forth the name and address of the principal executive office of
the Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fractional
interest in a Preferred Share underlying such Depositary Share, to all the
rights and preferences of the Preferred Shares underlying such Depositary Share
(including dividend, voting, redemption, conversion and liquidation rights).
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Corporation, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Corporation's expense.
Upon surrender of the Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called for
redemption), the owner of the Depositary Shares evidenced thereby is entitled to
delivery at such office, to or upon his order, of the number of Preferred Shares
and any money or other property represented by such Depositary Shares. Partial
Preferred Shares will not be issued. If the Depositary Receipts delivered by the
holder evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole Preferred Shares to be
withdrawn, the Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares. Holders
of Preferred Shares thus withdrawn will not thereafter be entitled to deposit
such shares under the Deposit Agreement or to receive Depositary Shares
therefor. The Corporation does not expect that there will be any public trading
market for the Preferred Shares represented by Depositary Receipts except as
represented by the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Shares to the record holders
of Depositary Shares relating to such Preferred Shares in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not
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feasible to make such distribution, in which case the Depositary may, with the
approval of the Corporation, sell such property and distribute the net proceeds
from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Corporation to
holders of the Preferred Shares shall be made available to holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Shares held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Shares. Whenever the Corporation redeems Preferred Shares held
by the Depositary, the Depositary will redeem as of the same redemption date the
number of Depositary Shares relating to the Preferred Shares so redeemed. If
less than all the Depositary Shares are to be redeemed, the Depositary Shares to
be redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the Preferred
Shares are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Shares. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Shares) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred Shares
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of Preferred Shares underlying such
Depositary Shares in accordance with such instructions, and the Corporation will
agree to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to do so. The Depositary will abstain from voting
Preferred Shares to the extent it does not receive specific instructions from
the holders of Depositary Shares relating to such Preferred Shares.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the Preferred Shares represented by such Depositary
Shares, and, accordingly, will be entitled to take into account for federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Shares. In addition, (i) no gain or loss
will be recognized for federal income tax purposes upon the withdrawal of
Preferred Shares in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each Preferred Share to an exchanging owner of
Depositary Shares will, upon such exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged therefor, and (iii) the holding period
for the Preferred Shares in the hands of an exchanging owner of Depositary
Shares will include the period during which such person owned such Depositary
Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Corporation and the Depositary.
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However, any amendment which materially and adversely alters the rights of the
existing holders of Depositary Shares will not be effective unless such
amendment has been approved by the record holders of at least a majority of the
Depositary Shares then outstanding. A Deposit Agreement may be terminated by the
Corporation or the Depositary only if (i) all outstanding Depositary Shares
relating thereto have been redeemed or (ii) there has been a final distribution
in respect of the Preferred Shares of the relevant series in connection with any
liquidation, dissolution or winding up of the Corporation and such distribution
has been distributed to the holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Corporation will pay charges of the Depositary in connection with the initial
deposit of the Preferred Shares and any redemption of the Preferred Shares.
Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Corporation which are delivered to the Depositary
and which the Corporation is required to furnish to the holders of the Preferred
Shares.
Neither the Depositary nor the Corporation will be liable if it is
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under the Deposit Agreement. The obligations of the Corporation
and the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares or
Preferred Shares unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by persons
presenting Preferred Shares for deposit, holders of Depositary Shares or other
persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Corporation
notice of its election to do so, and the Corporation may at any time remove the
Depositary, any such resignation or removal to take effect upon the appointment
of a successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
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DESCRIPTION OF COMMON STOCK
GENERAL
The Board of Directors of the Corporation is authorized to issue a maximum
of 100,000,000 shares of Common Stock. As of March 1, 1997, 85,956,487 shares of
Common Stock were issued, of which 81,431,600 were outstanding and 4,524,887
were held as treasury shares. Share numbers reflect the three-for-one stock
split announced by the Corporation on December 10, 1996. The Corporation split
its Common Stock three-for-one and paid a dividend of Common Stock on January
13, 1997 to Shareholders of Common Stock of record on December 31, 1996. The
terms and conditions of the Common Stock are governed by the laws of the State
of Ohio as well as by the Corporation's Articles and Code of Regulations.
Subject to any prior rights of any Preferred Stock then outstanding,
holders of the Common Stock are entitled to receive such dividends as are
declared by the Board of Directors of the Corporation out of funds legally
available therefor. For information concerning legal limitations on the ability
of the Bank to supply funds to the Corporation, see "CERTAIN REGULATORY
MATTERS." Subject to the rights, if any, of any Preferred Stock then
outstanding, all voting rights are vested in the holders of Common Stock.
Holders of Common Stock are entitled to one vote per share on all matters to be
voted upon by the shareholders of the Corporation. Holders of Common Stock are
not entitled to cumulate votes for the election of directors. The Board of
Directors of the Corporation is divided into three classes. The directors of the
class elected at each annual election hold office for a term of three years. The
Corporation's Articles provide that directors may be removed only for "cause",
which is defined as the conviction of a felony or a finding by a court of
negligence or misconduct in the performance of a director's duties.
The Common Stock has no preemptive rights and is not subject to further
calls or assessments by the Corporation. The transfer agent and registrar for
the Common Stock is the Bank.
The Corporation's Articles provide that, unless certain conditions have
been met, specified business combination transactions (including, but not
limited to, a merger with, or sale of all or substantially all the Corporation's
assets to, a "related person") submitted to shareholders require the affirmative
vote of holders of at least 80% of the Corporation's outstanding shares of
Common Stock and the affirmative vote of at least 50% of the outstanding shares
of Common Stock held by shareholders other than the related person. Generally, a
"related person" is one who beneficially owns 20% or more of the Corporation's
outstanding shares of Common Stock. Amendments to certain provisions of the
Corporation's Articles (including, among others, those requiring a classified
Board of Directors of the Corporation and the super-majority voting provisions),
also must be approved by at least 80% of the outstanding shares of Common Stock
and, if there is a related person, at least 50% of the outstanding shares not
held by the related person.
RIGHTS PLAN
Each share of Common Stock outstanding (and each share issued by the
Corporation prior to the occurrence of certain events) carries with it one
preferred stock purchase right ("Preferred Stock Purchase Right") to purchase,
at a price of $100.00, one-hundredth of a share of the Corporation's Series A
Preferred Stock. The Preferred Stock Purchase Rights are exercisable only if a
person or group (an "Adverse Person") acquires or obtains the right to acquire
ownership of 20% or more of the Corporation's Common Stock, commences a tender
or exchange offer for 30% or more of the Common Stock or is declared an "Adverse
Person" by the Corporation's Board of Directors. The Corporation is entitled to
redeem the Preferred Stock Purchase Rights at a price of one cent per Preferred
Stock Purchase Right at any time before the twentieth day following the date a
20% position has been acquired.
If the Corporation is acquired in a merger or other business combination
transaction, each Preferred Stock Purchase Right entitles its holder (other than
an Acquiring Person or Adverse Person) to purchase, at the Preferred Stock
Purchase Right's then-current exercise price, a number of the acquiring
company's common shares having a market value at that time of twice the
Preferred Stock Purchase Right's exercise price. The Preferred Stock Purchase
Rights also provide a similar right for holders (other than an Acquiring Person
or Adverse Person) to purchase Common Stock having a market value at that time
of twice the
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Preferred Stock Purchase Right's exercise price under certain circumstances
where a person or group has acquired a 30% block of the Corporation's Common
Stock or been declared an "Adverse Person" by a majority of the Corporation's
outside directors.
As long as the Preferred Stock Purchase Rights are attached to and
evidenced by the certificates representing the Common Stock, the Corporation
will continue to issue one Preferred Stock Purchase Right with each share of
Common Stock that shall become outstanding. A Preferred Stock Purchase Right is
presently attached to each issued and outstanding share of Common Stock. The
Preferred Stock Purchase Rights will expire on October 20, 1999 unless earlier
redeemed.
The Preferred Stock Purchase Rights have certain antitakeover effects. The
Preferred Stock Purchase Rights may cause substantial dilution to a person or
group that attempts to acquire the Corporation on terms not approved by the
Board of Directors of the Corporation. The Preferred Stock Purchase Rights
should not interfere with any merger or other business combination approved by
the Board of Directors of the Corporation since the Rights may be redeemed by
the Corporation prior to the consummation of such transactions.
The Rights Agreement between the Corporation and Mellon Bank, N.A., as
Rights Agent, dated as of October 10, 1989, has been filed as an exhibit to the
Company's Current Report on Form 8-A dated May 5, 1994. The description of the
Rights found in the foregoing Form 8-A has been incorporated by reference herein
and copies of such Form can be obtained in the manner set forth under
"INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE."
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DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue Securities Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares or Common Stock. Securities
Warrants may be issued independently or together with Debt Securities, Preferred
Shares or Depositary Shares offered by any Prospectus Supplement and may be
attached to or separate from such Debt Securities, Preferred Shares or
Depositary Shares. Each series of Securities Warrants will be issued under a
separate warrant agreement (a "Securities Warrant Agreement") to be entered into
between the Corporation and a bank or trust company, as securities warrant agent
(the "Securities Warrant Agent"), all as set forth in the Prospectus Supplement
relating to the particular issue of offered Securities Warrants. The Securities
Warrant Agent will act solely as an agent of the Corporation in connection with
securities warrant certificates (the "Securities Warrant Certificates") and will
not assume any obligation or relationship of agency or trust for or with any
holders of Securities Warrant Certificates or beneficial owners of Securities
Warrants. Copies of the forms of Securities Warrant Agreements, including the
forms of Securities Warrant Certificates representing the Securities Warrants,
are filed as exhibits to the Registration Statement to which this Prospectus
pertains. The following summaries of certain provisions of the forms of
Securities Warrant Agreements and Securities Warrant Certificates do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Securities Warrant Agreements and the
Securities Warrant Certificates.
GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement
will describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price and exercise price; (ii) the currencies in
which such Securities Warrants are being offered; (iii) the designation,
aggregate principal amount, currencies, denominations and terms of the series of
Debt Securities purchasable upon exercise of such Securities Warrants; (iv) the
designation and terms of any series of Debt Securities, Preferred Shares or
Depositary Shares with which such Securities Warrants are being offered and the
number of such Securities Warrants being offered with each such Debt Security,
Preferred Share or Depositary Share; (v) the date on and after which such
Securities Warrants and the related series of Debt Securities, Preferred Shares
or Depositary Shares will be transferable separately; (vi) the principal amount
of the series of Debt Securities purchasable upon exercise of each such
Securities Warrant and the price at which and currencies in which such principal
amount of Debt Securities of such series may be purchased upon such exercise;
(vii) the date on which the right to exercise such Securities Warrants shall
commence and the date on which such right shall expire (the "Expiration Date");
(viii) whether the Securities Warrants will be issued in registered or bearer
form; (ix) United States federal income tax consequences; and (x) any other
terms of such Securities Warrants.
In the case of Securities Warrants for the purchase of Preferred Shares,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price and exercise price; (ii) the aggregate number
of shares purchasable upon exercise of such Securities Warrants and, in the case
of Securities Warrants for Preferred Shares or Depositary Shares, the
designation, aggregate number and terms of the series of Preferred Shares
purchasable upon exercise of such Securities Warrants or underlying the
Depositary Shares purchasable upon exercise of such Securities Warrants; (iii)
the designation and terms of the series of Debt Securities, Preferred Shares or
Depositary Shares with which such Securities Warrants are being offered and the
number of such Securities Warrants being offered with each such Debt Security,
Preferred Share or Depositary Share; (iv) the date on and after which such
Securities Warrants and the related series of Debt Securities, Preferred Shares
or Depositary Shares will be transferable separately; (v) the number of
Preferred Shares, Depositary Shares or shares of Common Stock purchasable upon
exercise of each such Securities Warrant and the price at which such number of
Preferred Shares or Depositary Shares of such series or shares of Common Stock
may be purchased upon each exercise; (vi) the date on which the right to
exercise such Securities Warrants shall commence and the Expiration Date; (vii)
United States federal income tax consequences; and (viii) any other terms of
such Securities Warrants. Securities Warrants for the purchase of Preferred
Shares, Depositary Shares or Common Stock will be offered and exercisable for
U.S. dollars only and will be in registered form only.
32
<PAGE> 34
Securities Warrant Certificates may be exchanged for new Securities Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of Holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal of, premium,
if any, or interest, if any, on the Debt Securities purchasable upon such
exercise or to enforce covenants in the applicable indenture. Prior to the
exercise of any Securities Warrants to purchase Preferred Shares, Depositary
Shares or Common Stock, holders of such Securities Warrants will not have any
rights of holders of the Preferred Shares, Depositary Shares or Common Stock
purchasable upon such exercise, including the right to receive payments of
dividends, if any, on the Preferred Shares, Depositary Shares or Common Stock
purchasable upon such exercise or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of Preferred Shares, Depositary
Shares or shares of Common Stock, as the case may be, at such exercise price as
shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Securities Warrants. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Corporation), unexercised Securities Warrants will
become void.
Securities Warrants may be exercised by delivering to the Securities
Warrant Agent payment as provided in the applicable Prospectus Supplement of the
amount required to purchase the Debt Securities, Preferred Shares, Depositary
Shares or Common Stock, as the case may be, purchasable upon such exercise
together with certain information set forth on the reverse side of the
Securities Warrant Certificate. Securities Warrants will be deemed to have been
exercised upon receipt of payment of the exercise price, subject to the receipt,
within five business days, of the Securities Warrant Certificate evidencing such
Securities Warrants. Upon receipt of such payment and the Securities Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Securities Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Corporation will, as soon as practicable, issue and
deliver the Debt Securities, Preferred Shares, Depositary Shares or Common
Stock, as the case may be, purchasable upon such exercise. If fewer than all of
the Securities Warrants represented by such Securities Warrant Certificate are
exercised, a new Securities Warrant Certificate will be issued for the remaining
amount of Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without
the consent of the holders of the Securities Warrants issued thereunder to
effect changes that are not inconsistent with the provisions of the Securities
Warrants and that do not adversely affect the interests of the holders of the
Securities Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a Common
Stock Warrant are subject to adjustment in certain events, including (i) the
issuance of capital stock as a dividend or distribution on the Common Stock;
(ii) subdivisions and combinations of the Common Stock; (iii) the issuance to
all holders of Common Stock of certain rights or warrants entitling them to
subscribe for or purchase Common Stock within 45 days after the date fixed for
the determination of the stockholders entitled to receive such rights or
warrants, at less than the current market price (as defined in the Warrant
Agreement for such series of Common Stock Warrants); (iv) the distribution to
all holders of Common Stock of evidences of indebtedness or assets of the
Corporation (excluding certain cash dividends and distributions described below)
or rights or warrants (excluding those referred to above). In the event that the
Corporation shall distribute any rights or warrants to acquire capital stock
pursuant to clause (iii) above (the "Capital Stock Rights"), pursuant to which
separate certificates
33
<PAGE> 35
representing such Capital Stock Rights will be distributed subsequent to the
initial distribution of such Capital Stock Rights (whether or not such
distribution shall have occurred prior to the date of the issuance of a series
of Common Stock Warrants), such subsequent distribution shall be deemed to be
the distribution of such Capital Stock Rights; provided that the Corporation
may, in lieu of making any adjustment in the exercise price of and the number of
shares of Common Stock covered by a Common Stock Warrant upon a distribution of
separate certificates representing such Capital Stock Rights, make proper
provision so that each holder of such a Common Stock Warrant who exercises such
Common Stock Warrant (or any portion thereof) (a) before the record date for
such distribution of separate certificates shall be entitled to receive upon
such exercise shares of Common Stock issued with Capital Stock Rights and (b)
after such record date and prior to the expiration, redemption or termination of
such Capital Stock Rights shall be entitled to receive upon such exercise, in
addition to the shares of Common Stock issuable upon such exercise, the same
number of such Capital Stock Rights as would a holder of the number of shares of
Common Stock that such Common Stock Warrant so exercised would have entitled the
holder thereof to acquire in accordance with the terms and provisions applicable
to the Capital Stock Rights if such Common Stock Warrant was exercised
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Corporation or any majority owned subsidiary
shall not be deemed outstanding for the purpose of any adjustment.
No adjustment in the exercise price of and the number of shares of Common
Stock covered by a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the exercise price then in effect; provided that any such adjustment
not so made will be carried forward and taken into account in any subsequent
adjustment; provided, further, that any such adjustment not so made shall be
made no later than three years after the occurrence of the event requiring such
adjustment to be made or carried forward. Except as stated above, the exercise
price of and the number of shares of Common Stock covered by a Common Stock
Warrant will not be adjusted for the issuance of Common Stock or any securities
convertible into or exchangeable for Common Stock, or securities carrying the
right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case, as a result of which
holders of the Corporation's Common Stock shall be entitled to receive stock,
securities, other property or assets (including cash) with respect to or in
exchange for such Common Stock, the holders of the Common Stock Warrants then
outstanding will be entitled thereafter to convert such Common Stock Warrants
into the kind and amount of shares of stock and other securities or property
which they would have received upon such reclassification, change,
consolidation, merger, sale or conveyance had such Common Stock Warrants been
exercised immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance.
34
<PAGE> 36
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Offered Securities in any of two
ways: (i) through agents or (ii) directly to one or more purchasers. The
Prospectus Supplement with respect to any of the Offered Securities will set
forth the terms of the offering of such Offered Securities, including the name
or names of any underwriters or agents, the purchase price of such Offered
Securities, the proceeds to the Corporation from such sale, any underwriting
discounts or agency fees and other items constituting underwriters' or agents'
compensation, the initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers, and any securities exchanges on which
such Offered Securities may be listed.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification by the Corporation against certain
civil liabilities, including liabilities under the Securities Act, or to
contributions with respect to payments which the underwriters or agents may be
required to make in respect thereof. Underwriters and agents, and affiliates
thereof, may be customers of, engage in transactions with, or perform services
for the Corporation and its affiliates in the ordinary course of business.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable as Bearer Securities will agree that, in
connection with the original issuance of such Bearer Securities, it will not
offer, sell or deliver, directly or indirectly, Bearer Securities to a United
States person or to any person within the United States, except to the extent
permitted under United States Treasury regulations.
All Offered Securities, except for the Common Stock, will be new issues of
securities with no established trading market. Any underwriters to whom Offered
Securities are sold by the Corporation for public offering and sale may make a
market in such Offered Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given concerning the liquidity of the trading market for any
Offered Securities.
VALIDITY OF SECURITIES
The validity of the Offered Securities will be passed upon for the
Corporation by Jennie P. Carlson, Esq., Senior Vice President and General
Counsel of the Corporation. As of December 31, 1996, Ms. Carlson was the
beneficial owner of 658 shares of Common Stock and had options to acquire 2,275
additional shares.
EXPERTS
The consolidated financial statements of the Corporation and subsidiaries
as of December 31, 1996 and 1995 and for each of the three years in the period
ended December 31, 1996, incorporated by reference in this registration
statement, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
accounting and auditing, in giving such report.
35
<PAGE> 37
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered:
<TABLE>
<S> <C>
Registration Fee.......................................................... $151,515
*Legal Fees and Expenses.................................................. 120,000
*Trustee Fees and Expenses................................................ 30,000
*Accounting Fees and Expenses............................................. 10,000
*Blue Sky................................................................. 7,500
*Printing and Engraving Fees.............................................. 20,000
*Rating Agency Fees....................................................... 135,000
*Listing Fees............................................................. 0
*Miscellaneous............................................................ 0
--------
Total........................................................... $474,015
========
</TABLE>
- ---------------
* Estimated pursuant to instruction to Item 511 of Regulation S-K.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Articles of Incorporation, as amended, and Code of
Regulations require the Registrant to indemnify, to the full extent permitted
(or not prohibited) by the General Corporation Law of the State of Ohio, any
person with respect to any civil, criminal, administrative or investigative
action or proceeding instituted or threatened by reason of the fact that he is
or was a director or officer of the Registrant or is or was serving at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
Section 1701.13 of the General Corporation Law of the State of Ohio
authorizes the indemnification of directors and officers against liability
incurred by reason of being a director or officer and against expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement) in
connection with any action seeking to establish such liability, (i) in the case
of third-party claims, if the officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the corporation and (ii) in the case of actions by or in the right of the
corporation, if the officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, provided that such officer or director shall not have been adjudged
liable for negligence or misconduct (unless a court otherwise determines that
indemnification is proper) or that such director shall not have assented to
certain payments, distributions or loans prohibited by law. Indemnification is
also authorized with respect to any criminal action or proceeding where the
officer or director had no reasonable cause to believe his conduct was unlawful.
II-1
<PAGE> 38
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Stock
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Distribution Agreement
3.1 Amended Articles of Incorporation of Star Banc Corporation (previously filed as an
exhibit to the registrant's Annual Report on Form 10-K for the year ended December
31, 1991 and incorporated herein by reference)
3.2 Code of Regulations (previously filed as an exhibit to the registrant's Annual
Report on Form 10-K for the year ended December 31, 1988, and incorporated herein by
reference)
4.1 Form of Senior Indenture
4.2 [Intentionally Omitted]
4.3 Form of Senior Medium-Term Note (Fixed Rate)
4.4 Form of Senior Medium-Term Note (Floating Rate)
4.5 Form of Subordinated Indenture
4.6 Form of Certificate of Designations for Preferred Stock
4.7 Form of Certificate for Preferred Stock
4.8 Form of Certificate for Convertible Preferred Stock
4.9 Form of Certificate for Common Stock
4.10 Form of Deposit Agreement
4.11 Form of Depositary Receipt (included within Exhibit 4.13)
4.12 Form of Warrant Agreement for Debt Securities
4.13 Form of Warrant Agreement for Preferred Stock
4.14 Form of Warrant Agreement for Common Stock
5.1 Opinion of Thomas J. Lakin, Esq.
12.1 Statement Re Computation of Ratios
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Thomas J. Lakin, Esq. (included within Exhibit 5.1)
24.1 Powers of Attorney
25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a corporation
designated to act as Trustee
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
II-2
<PAGE> 39
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
its Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cincinnati and the State of Ohio, on
the 13th day of March, 1997.
STAR BANC CORPORATION
By /s/ JERRY A. GRUNDHOFER
------------------------------------
Jerry A. Grundhofer
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Corporation's Registration Statement has been signed on the 13th
day of March, 1997, by the following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- --------------------------------------------
<C> <S>
/s/ JERRY A. GRUNDHOFER Chairman of the Board, President and Chief
- -------------------------------------------- Executive Officer
Jerry A. Grundhofer
/s/ DAVID M. MOFFETT Executive Vice President and Chief Financial
- -------------------------------------------- Officer
David M. Moffett
/s/ JAMES D. HOGAN Senior Vice President and Controller, Chief
- -------------------------------------------- Accounting Officer
James D. Hogan
* Director
- --------------------------------------------
James R. Bridgeland, Jr.
* Director
- --------------------------------------------
Laurence L. Browning, Jr.
* Director
- --------------------------------------------
Victoria B. Buyniski
* Director
- --------------------------------------------
Samuel M. Cassidy
* Director
- --------------------------------------------
V. Anderson Coombe
* Director
- --------------------------------------------
John C. Dannemiller
</TABLE>
II-4
<PAGE> 41
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------------- --------------------------------------------
<C> <S>
* Director
- --------------------------------------------
J.P. Hayden, Jr.
* Director
- --------------------------------------------
Roger L. Howe
* Director
- --------------------------------------------
Thomas J. Klinedinst, Jr.
* Director
- --------------------------------------------
Charles S. Mechem, Jr.
* Director
- --------------------------------------------
Daniel J. Meyer
* Director
- --------------------------------------------
David B. O'Maley
* Director
- --------------------------------------------
O'dell M. Owens, M.D., M.P.H.
* Director
- --------------------------------------------
Thomas E. Petry
* Director
- --------------------------------------------
William C. Portman
* Director
- --------------------------------------------
Oliver W. Waddell
/s/ JERRY A. GRUNDHOFER Attorney-in-fact for the persons indicated
- -------------------------------------------- above with an *.
Jerry A. Grundhofer
</TABLE>
II-5
<PAGE> 42
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------ -------------------------------------------------------------------------- ------------
<C> <S> <C>
1.1 Form of Underwriting Agreement for Debt Securities........................
1.2 Form of Underwriting Agreement for Preferred Stock........................
1.3 Form of Underwriting Agreement for Common Stock...........................
1.4 Form of Distribution Agreement**..........................................
3.1 Amended Articles of Incorporation of Star Banc Corporation (previously
filed as an exhibit to the registrant's Annual Report on Form 10-K for the
year ended December 31, 1991 and incorporated herein by reference)........
3.2 Code of Regulations (previously filed as an exhibit to the registrant's
Annual Report on Form 10-K for the year ended December 31, 1988, and
incorporated herein by reference).........................................
4.1 Form of Senior Indenture**................................................
4.2 [Intentionally Omitted]...................................................
4.3 Form of Senior Medium-Term Note (Fixed Rate)..............................
4.4 Form of Senior Medium-Term Note (Floating Rate)...........................
4.5 Form of Subordinated Indenture**..........................................
4.6 Form of Certificate of Designations for Preferred Stock...................
4.7 Form of Certificate for Preferred Stock...................................
4.8 Form of Certificate for Convertible Preferred Stock.......................
4.9 Form of Certificate for Common Stock......................................
4.10 Form of Deposit Agreement.................................................
4.11 Form of Depositary Receipt (to be included within Exhibit 4.13)*..........
4.12 Form of Warrant Agreement for Debt Securities.............................
4.13 Form of Warrant Agreement for Preferred Stock.............................
4.14 Form of Warrant Agreement for Common Stock................................
5.1 Opinion of Thomas J. Lakin, Esq.** .......................................
12.1 Statement Re Computation of Ratios........................................
23.1 Consent of Arthur Andersen LLP............................................
23.2 Consent of Thomas J. Lakin, Esq. (included within Exhibit 5.1)**..........
24.1 Powers of Attorney**......................................................
25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a
corporation designated to act as Trustee**................................
</TABLE>
- ---------------
* to be filed by amendment or in subsequent Form 8-K
** previously filed
<PAGE> 1
Exhibit 1.1
[Debt Securities]
STAR BANC CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Star Banc Corporation, an Ohio 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"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of ____________ between the Company and ____________, as
trustee (the "Trustee"). 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, each shall be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for 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 on
such Form (the file number of which is set forth in Schedule I hereto),
which has become effective, for the registration under the Act of the
Securities. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1) under the
Act and complies in all other material respects with said Rule. The
Company proposes to file with the Commission pursuant to Rule 424 or
Rule 434 under the Act a supplement to the
<PAGE> 2
form of prospectus included in such registration statement relating
to the Securities and the plan of distribution thereof and has
previously advised you of all further information (financial and other)
with respect to the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date of
this Agreement, is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the Registration Statement
is hereinafter called the "Basic Prospectus"; and such supplemented
form of prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424 or Rule 434 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Final Prospectus." 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
were filed under the Securities Exchange Act of 1934 (the "Exchange
Act") on or before the date of this Agreement, 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 Registration
Statement, the Basic Prospectus, and the Preliminary 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 date of this Agreement,
or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 or Rule 434 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the Commission and
at the Closing Date (as hereinafter defined), (i) the Registration
Statement as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
Exchange Act and the
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<PAGE> 3
respective rules thereunder, (ii) the Registration Statement, as
amended as of any such time, 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, and (iii) the Final Prospectus, as amended or supplemented
as of any such time, 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, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(A) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee (Form T-1)
under the Trust Indenture Act of the Trustee or (B) the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or 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 Statement and the Final Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
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 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 Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("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
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<PAGE> 4
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 Contracts 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 make 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 Securities 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 Company in writing;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto, less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto, 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 Underwriters' 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 in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Underwriters' Securities shall be in the form set
forth in Schedule I hereto, and such certificates shall be deposited with the
Paying Agent, Security Registrar and Transfer Agent as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC.
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<PAGE> 5
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus
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 to be filed with the Commission
pursuant to Rule 424 or Rule 434 via the Electronic Data Gathering,
Analysis and Retrieval System. The Company will advise the
Representatives promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when
any amendment to the Registration Statement relating to the Securities
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) 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 amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend 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 first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
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<PAGE> 6
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 60 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which
shall become effective on or prior to the Closing Date and, 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 reasonably request. The Company will pay the
expenses of printing all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably 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; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process of any
jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any securities covered by the
Registration Statement or by any other registration statement filed
under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any
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<PAGE> 7
document incorporated by reference therein) and as of the Closing Date, 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) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or mailed for
filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the Representatives the
opinion of [Wachtell, Lipton, Rosen & Katz], counsel for the Company,
dated the Closing Date, to the effect of paragraphs (i), (iv) and (vi)
through (xii) below, and the opinion of Thomas J. Lakin, General Counsel
to the Company, dated the Closing Date, to the effect of paragraphs
(ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of the State
of Ohio, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; Star Bank
N.A. (or the successors to such entity) (the "Subsidiary") is a
national banking associations formed under the laws of the United
States and authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Subsidiary is required to be qualified or licensed to do business
as a foreign corporation in any jurisdiction;
(iii) all the outstanding shares of capital stock of
the Subsidiary have been duly and validly authorized and issued
and are fully paid and (except as provided in 12 U.S.C. ss. 55,
as amended) nonassessable, and, except as otherwise set forth in
the Final
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<PAGE> 8
Prospectus, all outstanding shares of capital stock of the
Subsidiaries (except directors' qualifying shares) are owned,
directly or indirectly, by the Company 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;
(iv) the Securities conform in all material respects to
the description thereof contained in the Final Prospectus;
(v) if the Securities are to be listed on the New York
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 the New York Stock Exchange 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;
(vi) 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, fraudulent
conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable
principles that may limit the right to specific enforcement of
remedies, and further subject to 12 U.S.C. 1818(b)(6)(D) and
similar bank regulatory powers and to the application of
principles of public policy); and the 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, 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 (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of
creditors now or
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<PAGE> 9
hereafter in effect, and to equitable principles that may limit
the right to specific enforcement of remedies, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public policy);
(vii) 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 character 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;
(viii) the Registration Statement has become effective
under the Act; to the best knowledge of such counsel no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement thereto
(other than the financial statements and other financial and
statistical information contained therein or incorporated by
reference 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 the Registration Statement or any amendment thereof
at the time it became effective 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, as amended or
supplemented, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(ix) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the Company
and constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
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<PAGE> 10
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or
other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit
the right to specific enforcement of remedies, and except insofar
as the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited by federal
and state securities laws, and further subject to 12 U.S.C.
1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy);
(x) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in any
Delayed Delivery Contracts, 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;
(xi) 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 will conflict with, result in a breach
of, or constitute a default under the articles of incorporation
or by-laws of the Company or, to the best knowledge of such
counsel, the terms of any indenture or other agreement or
instrument known 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 subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its affiliates; and
(xii) to the best knowledge and information of such
counsel, each holder of securities of the Company having rights
to the registration of such securities under the Registration
Statement has waived such rights or such rights have expired by
reason of lapse of time following notification of the Company's
intention to file the Registration Statement.
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<PAGE> 11
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 Ohio or the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who
are 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 its subsidiaries and
public officials.
(c) The Representatives shall have received from Simpson Thacher
& Bartlett, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus and other related matters
as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they 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 and
Chief Executive Officer or a Senior Vice President 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 and this
Agreement and that to the best of their knowledge:
(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 effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or threatened;
and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the condition
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<PAGE> 12
(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.
(e) At the Closing Date, Arthur Andersen LLP 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 the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the meaning
of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by them
and included or incorporated by reference in the Registration
Statement and Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act
and the regulations thereunder with respect to registration
statements on Form S-3 and the Exchange Act and the regulations
thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting
of:
(a) Reading the minutes of the meetings of the
shareholders, the board of directors, executive committee
and audit committee of the Company and the boards of
directors and executive committees of its subsidiaries as
set forth in the minute books through a specified date not
more than five business days prior to the date of delivery
of such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
SAS No. 71, Interim Financial Information, on the
unaudited condensed consolidated interim financial
statements of the Company and its consolidated
subsidiaries
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<PAGE> 13
included or incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited interim
financial data, if any, for the period from the date of
the latest balance sheet included or incorporated by
reference in the Registration Statement and Prospectus to
the date of the latest available interim financial data;
and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters regarding the specific items for which
representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus, do
not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and
the published rules and regulations thereunder;
(2) any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Prospectus, for them to be in
conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than
five business days prior to the date of the delivery of
such letter, there was any change in the capital stock or
the long-term debt (other than scheduled repayments of
such debt) or any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated basis as
compared with the amounts shown in the latest balance
sheet included or incorporated by reference in the
Registration Statement and the Prospectus or (ii) for the
period from the date of the latest available financial
data to a specified date not more than five business days
prior to the delivery of such
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<PAGE> 14
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such
debt) or any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Arthur Andersen shall state any
specific changes or decreases.
(iv) The letter shall also state that Arthur Andersen
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Representatives and
agreed to by Arthur Andersen LLP, and has found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company
and its subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Arthur
Andersen LLP shall have furnished to the Representatives a letter or
letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, 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 earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in 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 Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
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<PAGE> 15
(h) 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.
If any of the conditions specified in this Section 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
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
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 consummated 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 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 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 Underwriter 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 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 arise out of
or are based upon omission or alleged omission to state therein a material fact
required to be stated therein or necessary to
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<PAGE> 16
make the statements therein not misleading, and 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 connection
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 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 Prospectus 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 indemnify 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 Underwriter, 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 and under
the heading "Underwriting" or "Plan of Distribution" 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.
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<PAGE> 17
(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 writing 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
otherwise than under this Section 7. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the commence-
ment thereof, the indemnifying party will be entitled to participate therein,
and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants 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 assert such
legal defenses and to otherwise participate in the defense of 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 assume the
defense of such action and approval by the indemnified party of 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 accordance 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 subparagraph (a), representing the indemnified
parties under subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel 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 applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
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<PAGE> 18
paragraph (a) 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 the 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 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 Section 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 Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (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
contribution 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 obligation 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 bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or
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<PAGE> 19
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 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 Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or Ohio State authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities 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 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 and payment for the Securities. The provisions of
Section 6 and 7 hereof and this Section 10 shall survive the termination or
cancellation of this Agreement.
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 telegraphed and
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<PAGE> 20
confirmed to them, at the address specified in Schedule I hereto, with a copy
to: Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, NY 10017-3909,
Attn: [ ] or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at [address].
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 internal laws of the [State of New York,]
without giving effect to principles of conflict of laws.
If the foregoing is in accordance with your understanding 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,
STAR BANC CORPORATION
By:_________________________
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<PAGE> 21
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I
hereto.
By:
By:__________________________
For themselves and the other several Underwriters,
if any, named in Schedule II to the foregoing
Agreement.
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<PAGE> 22
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 33-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued interest or
amortization, if applicable): ______%; in federal (same day) funds or
wire transfer to an account previously designated to the Representatives
by the Company or, if agreed to by the Representatives and the Company,
by certified or official bank check or checks.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ____________, New York City time, Office of
[Simpson Thacher & Bartlett]
Listing:
Delayed Delivery Arrangements:
Additional items to be covered by the letter from Price Waterhouse delivered
pursuant to Section 5(e) at the time this Agreement is executed:
<PAGE> 23
SCHEDULE II
Principal Amount of
Securities to
Underwriters be Purchased
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<PAGE> 24
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Star Banc
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
Final Prospectus dated , 19 , receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof, plus
accrued interest, 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 A.M. on the Delivery Date to or upon the order
of the Company in New York Clearing House (next day) 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 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
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<PAGE> 25
to be sold to them pursuant to the Underwriting Agreement referred to in the
Final Prospectus 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 successors, 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 the 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 internal laws of the State of New York, without giving effect to
principles of conflict of laws.
Very truly yours,
----------------------------------
(Name of Purchaser)
BY:
------------------------------
(Signature and Title of Officer)
----------------------------------
(Address)
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<PAGE> 26
Accepted:
STAR BANC CORPORATION
By:____________________________
(Authorized Signature)
-5-
<PAGE> 1
Exhibit 1.2
[Preferred Stock]
STAR BANC CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Star Banc Corporation, an Ohio 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"), _____ shares (the "Initial Shares") of the Company's
preferred stock (the "Preferred Stock"). The Company also grants to the
Underwriters, severally and not jointly, the option described in Section 2(b)
to purchase up to _____ additional shares (the "Option Shares") of Preferred
Stock to cover over-allotments. The Company may elect to offer fractional
interests in shares of Preferred Stock, in which event the Company will provide
for the issuance by a Depositary of receipts evidencing depositary shares that
will represent such fractional interests ("Depositary Shares"). The shares of
Preferred Stock involved in any such offering are hereinafter referred to as the
"Securities" and, where appropriate herein, reference to the Securities include
the Depositary Shares. Such Securities are to be sold to each Underwriter,
acting severally and not jointly, in such amounts as are listed in Schedule II
opposite the name of each Underwriter. The Securities are more fully described
in the Final Prospectus, referred to below. 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, each shall
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the
<PAGE> 2
"Commission") a registration statement on such Form (the file number
of which is set forth in Schedule I hereto), which has become
effective, for the registration under the Act of the Securities. Such
registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424 or Rule 434
under the Act a supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be
set forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called
the "Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424 hereinafter is called the "Preliminary
Final Prospectus." 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 were filed under the Securities Exchange Act of 1934 (the
"Exchange Act") on or before the date of this Agreement, 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
Registration Statement, the Basic Prospectus, and the Preliminary
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 date of this Agreement, or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 or Rule 434 under the Act, when, prior to
the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement),
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<PAGE> 3
when any supplement to the Final Prospectus is filed with the
Commission and at the Closing Date (as hereinafter defined), (i) the
Registration Statement as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, will comply
in all material respects with the applicable requirements of the Act,
and the Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, 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, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, 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, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to the information contained
in or omitted from the Registration Statement or the Final Prospectus
or any amendment thereof or 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
Statement and the Final Prospectus.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective number of
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 amounts of Securities to be
purchased by the Underwriters shall be 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 Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("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
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<PAGE> 4
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
purchase price set forth on Schedule I hereto, of the Securities for which
Delayed Delivery Contracts 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 make 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 amount of
Securities set forth in Schedule I hereto and the aggregate amount of Contract
Securities may not exceed the maximum aggregate 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 amount of Securities
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 amount of
Contract Securities as the amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate 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 Company in writing; provided, however,
that the total amount of Securities to be purchased by all Underwriters shall be
the aggregate amount set forth in Schedule II hereto, less the aggregate amount
of Contract Securities.
(b) In addition, on the basis of the representations and
warranties contained herein, and subject to the terms and conditions set forth
herein, the Company grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional _______ Option Shares at the same price
per share determined as provided above for the Initial Shares. The option hereby
granted will expire 30 days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once), only for the purpose of
covering over-allotments upon notice by the Representatives to the Company
setting forth the number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment and delivery
thereof. Such time and date of Delivery (the "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any event prior to
the Closing Date (as defined below). If the option is exercised as to all or any
portion of the Option Shares, the
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<PAGE> 5
Option Shares as to which the option is exercised shall be purchased by the
Underwriters severally and not jointly, in proportion to, as nearly as
practicable, their respective Initial Shares underwriting obligations as set
forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' 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 in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Underwriters' Securities shall be in the form set
forth in Schedule I hereto, and such certificates shall be deposited with the
Paying Agent, Security Registrar and Transfer Agent as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC.
In addition, in the event that any or all of the Option Shares
are purchased by the Underwriters, delivery and payment for the Option Shares
shall be made at the office specified for delivery of the Initial Shares in the
Pricing Agreement, or at such other place as the Company and the Representatives
shall determine, on the Date of Delivery as specified in the notice from the
Representatives to the Company. Delivery of the Option Shares shall be made to
the Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Option Shares shall be in the form set forth in Schedule I
hereto, and such certificates 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 Date of Delivery.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus 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
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<PAGE> 6
sentence, the Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 or Rule 434 via the Electronic Data
Gathering, Analysis and Retrieval System. The Company will advise the
Representatives promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when
any amendment to the Registration Statement relating to the Securities
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) 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 amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend 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 first sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 60 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158
of the regulations under the Act) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of
the Registration Statement.
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<PAGE> 7
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, 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 reasonably request. The
Company will pay the expenses of printing all documents relating to the
offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably 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; provided,
however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or unlimited service
of process of any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any securities covered by the
Registration Statement or by any other registration statement filed
under the Act.
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the
Underwriters' Securities shall be subject to the accuracy of the representations
and warranties on the part of the Company contained herein as of the date
hereof, as of the date of the effectiveness of any amendment to the Registration
Statement filed prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, 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) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose
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<PAGE> 8
shall have been instituted or threatened; and the Final Prospectus
shall have been filed or mailed for filing with the Commission within
the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of [Wachtell, Lipton, Rosen & Katz], counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i), (iv)
and (vi) through (xii) below, and the opinion of [Thomas J. Lakin],
General Counsel to the Company, dated the Closing Date, to the effect
of paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Ohio, has the corporate power and authority to own
its properties and conduct its business as described in the
Final Prospectus, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; Star Bank, N.A. (or the successors to such entity)
(the "Subsidiary") is a national banking association formed
under the laws of the United States and authorized thereunder
to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Subsidiary is required to be qualified or licensed to do
business as a foreign corporation in any jurisdiction;
(iii) all the outstanding shares of capital stock
of the Subsidiary have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C.
(Section Mark) 55, amended) nonassessable, and, except as
otherwise as set forth in the Final Prospectus, all
outstanding shares of capital stock of the Subsidiaries
(except directors' qualifying shares) are owned, directly or
indirectly, by the Company 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;
(iv) the Securities conform in all material
respects to the description thereof contained in the Final
Prospectus;
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<PAGE> 9
(v) if the Securities are to be listed on the New
York 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 the New York
Stock Exchange 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;
(vi) 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 character 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;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of such counsel
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; the Registration
Statement, the Final Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and
other financial and statistical information contained therein
or incorporated by reference 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 the Registration
Statement or any amendment thereof at the time it became
effective 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, as amended or
supplemented, contains any untrue statement of a material fact
or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
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<PAGE> 10
(viii) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by
the Company and constitute 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,
fraudulent conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and except insofar as the
enforceability of the indemnity and contribution provisions
contained in this Agreement may be limited by federal and
state securities laws, and further subject to 12 U.S.C.
1818(b)(6)(D) and similar bank regulatory powers and to the
application of principles of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, 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;
(x) 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 will conflict with, result in a
breach of, or constitute a default under the articles of
incorporation or by-laws of the Company or, to the best
knowledge of such counsel, the terms of any indenture or other
agreement or instrument known 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 subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
affiliates; and
(xi) to the best knowledge and information of such
counsel, each holder of securities of the Company having
rights to the registration of such securities under the
Registration Statement has waived
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<PAGE> 11
such rights or such rights have expired by reason of lapse of
time following notification of the Company's intention to file
the Registration Statement.
(xii) to Securities have been duly authorized and,
when paid for as contemplated herein, will be duly issued,
fully paid and nonassessable.
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 Ohio or the United States, to the
extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be
reliable and who are 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 its subsidiaries and public officials.
(c) The Representatives shall have received from Simpson
Thacher & Bartlett, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale
of the Securities, the Indenture, any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus and other related matters
as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they 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 and
Chief Executive Officer or a Senior Vice President 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 and this
Agreement and that to the best of their knowledge:
(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 effectiveness of
the Registration Statement, as amended, has been
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<PAGE> 12
issued and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, 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.
(e) At the Closing Date, Arthur Andersen LLP 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 the response, if any, to Item 10 of
the Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by them
and included or incorporated by reference in the Registration
Statement and Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange Act and
the regulations thereunder.
(iii) On the basis of procedures (but not an audit
in accordance with generally accepted auditing standards)
consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through
a specified date not more than five business days
prior to the date of delivery of such letter;
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<PAGE> 13
(b) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries included or
incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period from
the date of the latest balance sheet included or
incorporated by reference in the Registration
Statement and Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form in
all material respects with the applicable accounting
requirements of the Exchange Act and the published
rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and
Prospectus, for them to be in conformity with
generally accepted accounting principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases
in shareholders' equity of the Company and the
subsidiaries on a
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<PAGE> 14
consolidated basis as compared with the amounts shown
in the latest balance sheet included or incorporated
by reference in the Registration Statement and the
Prospectus or (ii) for the period from the date of
the latest available financial data to a specified
date not more than five business days prior to the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases
in shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Arthur Andersen shall state
any specific changes or decreases.
(iv) The letter shall also state that Arthur
Andersen LLP has carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and Prospectus and which are specified by the
Representatives and agreed to by Arthur Andersen LLP, and has
found such amounts, percentages and financial information to
be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified
in such letter.
In addition, at the time this Agreement is executed, Arthur
Andersen LLP shall have furnished to the Representatives a letter or
letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, 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 earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in 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 Statement and the Final Prospectus.
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<PAGE> 15
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(h) 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.
If any of the conditions specified in this Section 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
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters here under 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. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including capital duties,
stamp duties and stock transfer taxes, if any, payable upon issuance of any of
the Securities, the sale of the Securities to the Underwriters and the fees and
expenses of the transfer agent for the Securities (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Securities under state securities laws in accordance with the provisions of
Section 4(e), including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, of the preliminary prospectuses, and of the Prospectuses
and any amendments or supplements thereto, (vii) the printing and delivery to
the Underwriters of copies of the Blue Sky Survey, and (viii) the fee of the
National Association of Securities Dealers, Inc. and, if applicable, the New
York Stock Exchange.
If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the
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<PAGE> 16
Underwriters set forth in Section 5 hereof is not satisfied or because of any
refusal, inability or failure on the part 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 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. Conditions to Purchase of Option Shares. In the event the
Underwriters exercise the option granted in Section 2(b) hereof to purchase all
or any portion of the Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for the Option
Shares that they shall have respectively agreed to purchase hereunder are
subject to the accuracy of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and any required filing of the Final Prospectus pursuant
to Rule 424(b) or Rule 434 under the Act shall have been made within
the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the Option
Shares:
(i) the favorable opinion of [Wachtell, Lipton,
Rosen & Katz], counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the same
effect as the opinion required by Section 5(b);
(ii) the favorable opinion of [Thomas J. Lakin],
Esq., General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the same
effect as the opinion required by Section 5(b);
(iii) the favorable opinion of [Simpson Thacher &
Bartlett], counsel for the Underwriters, to the same effect as
the opinion required by Section 5(c);
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<PAGE> 17
(iv) a certificate, of the Chairman of the Board
and Chief Executive Officer or Senior Vice President of the
Company and of the principal financial or accounting officer
of the Company with respect to the matters set forth in
Section 5(d);
(v) a letter from Arthur Andersen, in form and
substance satisfactory to the Underwriters, substantially the
same in scope and substance as the letter furnished to the
Underwriters pursuant to Section 5(e) except that the
"specified date" in the letter furnished pursuant to this
Section 7(b)(v) shall be a date not more than five days prior
to the Date of Delivery; and
(vi) Subsequent to the respective dates as of
which information is given in the Registration Statement and
the Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to in
paragraph (b)(v) of this Section 7 or (ii) any change, or any
development involving a prospective change, in or affecting
the earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in
clause (i) or (ii) above, is, in 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
Statement and the Final Prospectus.
(vii) such other information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 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
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters here under may be
canceled at, or at any time prior to, the Date of Delivery by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of
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<PAGE> 18
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 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 arise out of or are based upon 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 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
connection 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 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 Prospectus 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 indemnify 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 Underwriter, but only
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<PAGE> 19
with reference to written information relating to such Under writer 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 and under
the heading "Underwriting" or "Plan of Distribution" 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 8 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 8, notify the indemnifying party in writing 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
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants 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 assert such
legal defenses and to otherwise participate in the defense of 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 assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 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 accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
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<PAGE> 20
liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the indemnified
parties under subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel 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 applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on the 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 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 Section 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 8, 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 Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (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
contribution 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
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<PAGE> 21
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. 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 bear 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 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 9, 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.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal, or Ohio State authorities or (iii) there shall have occurred
any outbreak or material escalation of hostilities 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 judgment of the Representatives, impracticable to market the
Securities.
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<PAGE> 22
11. 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 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Section 6 and 8 hereof and this Section 11 shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto, with a copy to: Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, NY 10017-3909 Attn: [ ];
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at [address].
13. 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 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the [State of New York,]
without giving effect to principles of conflict of laws.
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<PAGE> 23
If the foregoing is in accordance with your understanding 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,
STAR BANC CORPORATION
By: ___________________________
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I
hereto.
By: [Name of Representatives]
By: _________________________
For themselves and the other several Underwriters,
if any, named in Schedule II to the foregoing
Agreement.
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<PAGE> 24
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 33-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts:
____________________
Additional items to be covered by the letter from Arthur Andersen delivered
pursuant to Section 5(e) at the time this Agreement is executed:
____________________
<PAGE> 25
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
SCHEDULE III
Delayed Delivery Contract
________, 19__
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Star Banc
Corporation (the "Company"), and the Company agrees to sell to the undersigned,
on __________, 19__ (the "Delivery Date"), _______ shares of the Company's
Preferred Stock (the "Securities") offered by the Company's Final Prospectus
dated _________, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of ___% of the principal amount thereof, plus accrued interest,
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 A.M. on the Delivery Date to or upon the order
of the Company in New York Clearing House (next day) 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 amount of
Securities to be purchased by the undersigned on the Delivery Date.
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<PAGE> 26
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 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
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus 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 successors, 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 the 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.
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<PAGE> 27
This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
Very truly yours,
______________________________________
(Name of Purchaser)
By: _________________________________
(Signature and Title of Officer)
_________________________________
(Address)
Accepted:
STAR BANC CORPORATION
By: ______________________
(Authorized Signature)
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<PAGE> 1
WLRK Draft 2/11/97
Exhibit 1.3
[Common Stock]
STAR BANC CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Star Banc Corporation, an Ohio corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), ________ shares (the "Initial Shares") of the Company's
common stock (the "Common Stock"). Such Initial Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are listed in
Schedule II opposite the name of each Under writer. The Company also grants to
the Underwriters, severally and not jointly, the option described in Section
2(c) to purchase up to _____ additional shares (the "Option Shares"; together
with the Initial Shares, the "Shares") of Common Stock to cover over-allotments.
The Common Stock is more fully described in the Final Prospectus, referred to
below. 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, each shall be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company rep resents and
warrants to, and agrees with, each Underwriter, as of the date hereof and as of
the date of the Pricing Agreement (such latter date being hereinafter referred
to as the "Representation Date") that:
(a) The Company meets the requirements for 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 on such Form (the
<PAGE> 2
file number of which is set forth in Schedule I hereto), which has
become effective, for the registration under the Act of the Shares.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424 or Rule 434
under the Act a supplement to the form of prospectus included in such
registration statement relating to the Shares and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called
the "Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been
filed pursuant to Rule 424 hereinafter is called the "Preliminary Final
Prospectus." 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
were filed under the Securities Exchange Act of 1934 (the "Exchange
Act") on or before the date of this Agreement, 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 Registration
Statement, the Basic Prospectus, and the Preliminary 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 date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 or Rule 434 under the Act, when, prior to
the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with
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<PAGE> 3
the Commission and at the Closing Date (as hereinafter defined), (i)
the Registration Statement as amended as of any such time, and the
Final Prospectus, as amended or supplemented as of any such time, will
comply in all material respects with the applicable requirements of the
Act, and the Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, 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, and (iii) the Final
Prospectus, as amended or supplemented as of any such time, 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, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to the information contained
in or omitted from the Registration Statement or the Final Prospectus
or any amendment thereof or 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
Statement and the Final Prospectus.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective number of
Initial Shares set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Initial Shares
pursuant to delayed delivery arrangements, the respective amounts of Initial
Shares to be purchased by the Underwriters shall be set forth in Schedule II
hereto, less the respective amounts of Contract Securities determined as
provided below. Shares to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Shares to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Initial Shares from the Company
pursuant to delayed delivery contracts ("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
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<PAGE> 4
Company will pay to the Representatives, for the account of the Underwriters,
on the Closing Date, the purchase price set forth on Schedule I hereto, of the
Initial Shares for which Delayed Delivery Contracts 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 make 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 amount of Initial Shares set forth in Schedule I hereto and the
aggregate amount of Contract Securities may not exceed the maximum aggregate
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 amount of Initial Shares 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 amount of Contract Securities as the amount of
Initial Shares set forth opposite the name of such Underwriter bears to the
aggregate 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 Company in writing; provided, however, that the total amount of
Initial Shares to be purchased by all Underwriters shall be the aggregate amount
set forth in Schedule II hereto, less the aggregate amount of Contract
Securities.
(b) The initial public offering price and the purchase price
of the Initial Shares shall be set forth in a separate written instrument (the
"Pricing Agreement") signed by the Representatives and the Company, the form of
which is attached hereto as Schedule IV. From and after the execution and
delivery of the Pricing Agreement, this Agreement shall be deemed to include the
Pricing Agreement. The purchase price per share to be paid by the several
Underwriters for the Initial Shares shall be an amount equal to the initial
public offering price, less an amount per share to be determined by agreement
among the Representatives and the Company.
(c) In addition, on the basis of the representations and
warranties contained herein, and subject to the terms and conditions set forth
herein, the Company grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional _______ Option Shares at the same price
per share determined as provided above for the Initial Shares. The option hereby
granted will expire 30 days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once), only for the purpose of
covering
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<PAGE> 5
over-allotments upon notice by the Representatives to the Company
setting forth the number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment and delivery
thereof. Such time and date of Delivery (the "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any event prior to
the Closing Date (as defined below). If the option is exercised as to all or any
portion of the Option Shares, the Option Shares as to which the option is
exercised shall be purchased by the Underwriters severally and not jointly, in
proportion to, as nearly as practicable, their respective Initial Shares
underwriting obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the
Initial Shares shall be made on the date and at the time specified in the
Pricing Agreement, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Initial Shares being herein called the
"Closing Date"). Delivery of the Initial Shares 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 in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Initial Shares shall be in the form set forth in
Schedule I hereto, and such certificates shall be deposited with the Paying
Agent, Security Registrar and Transfer Agent as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for
DTC.
In addition, in the event that any or all of the Option Shares
are purchased by the Underwriters, delivery and payment for the Option Shares
shall be made at the office specified for delivery of the Initial Shares in the
Pricing Agreement, or at such other place as the Company and the Representatives
shall determine, on the Date of Delivery as specified in the notice from the
Representatives to the Company. Delivery of the Option Shares shall be made to
the Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I hereto. Certificates for the
Option Shares shall be in the form set forth in Schedule I hereto, and such
certificates 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 Date of Delivery.
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<PAGE> 6
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the Shares,
the Company will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus) to the Basic Prospectus
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 to be filed with the Commission
pursuant to Rule 424 or Rule 434 via the Electronic Data Gathering,
Analysis and Retrieval System. The Company will advise the
Representatives promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when
any amendment to the Registration Statement relating to the Shares
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Shares 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 Shares
is required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend 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 first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance.
-6-
<PAGE> 7
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 60 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158
of the regulations under the Act) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of
the Registration Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, 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 reasonably request. The
Company will pay the expenses of printing all documents relating to the
offering.
(e) The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Shares and will arrange for the determination of the legality of
the Shares for purchase by institutional investors; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process of
any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or
sell, or announce the offering of, any securities covered by the
Registration Statement or by any other registration statement filed
under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any
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<PAGE> 8
document incorporated by reference therein) and as of the Closing Date, 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) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and the Final Prospectus shall have been filed or mailed
for filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the Representatives
the opinion of [Wachtell, Lipton, Rosen & Katz], counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i), (iv)
and (vi) through (xii) below, and the opinion of [Thomas J. Lakin],
General Counsel to the Company, dated the Closing Date, to the effect
of paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Ohio, has the corporate power and authority to own
its properties and conduct its business as described in the
Final Prospectus, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; Star Bank, N.A. (or the successors to such entity)
(the "Subsidiary") is a national banking association formed
under the laws of the United States and authorized thereunder
to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Subsidiary is required to be qualified or licensed to do
business as a foreign corporation in any jurisdiction;
(iii) all the outstanding shares of capital stock
of the Subsidiary have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C.
(Section Mark) 55, as amended) nonassessable, and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries (except directors'
qualifying shares) are owned, directly or indirectly, by the
Company free and clear of any perfected security interest and,
to the knowledge of such counsel,
-8-
<PAGE> 9
after due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) the Shares conform in all material respects
to the description thereof contained in the Final Prospectus;
(v) if the Shares are to be listed on the New York
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 Initial Shares with the New York Stock Exchange and
such counsel has no reason to believe that the Initial Shares
will not be authorized for listing, subject to official notice
of issuance and evidence of satisfactory distribution;
(vi) 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 character 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;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of such counsel
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; the Registration
Statement, the Final Prospectus and each amendment thereof or
supplement thereto (other than the financial statements and
other financial and statistical information contained therein
or incorporated by reference 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 the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact
-9-
<PAGE> 10
required to be stated therein or necessary to make the
statements therein not misleading or that the Final
Prospectus, as amended or supplemented, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(viii) this Agreement, the Pricing Agreement and
any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and each 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, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein or in
any Delayed Delivery Contracts, 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 Shares by the Underwriters
and such other approvals (specified in such opinion) as have
been obtained;
(x) neither the issue and sale of the Shares, nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the articles of
incorporation or by-laws of the Company or, to the best
knowledge of such counsel, the terms of any indenture or other
agreement or instrument known 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
-10-
<PAGE> 11
subsidiaries of any court, regulatory body, admnistrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its affiliates;
(xi) to the best knowledge and information of such
counsel, each holder of securities of the Company having
rights to the registration of such securities under the
Registration Statement has waived such rights or such rights
have expired by reason of lapse of time following notification
of the Company's intention to file the Registration Statement;
and
(xii) to Initial Shares, any Option Shares as to
which the option granted in Section 2 has been exercised and
the Date of Delivery determined by the Representatives to be
the same as the Closing Date, have been duly authorized and,
when paid for as contemplated herein, will be duly issued,
fully paid and nonassessable.
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 Ohio or the United States, to the
extent deemed proper and specified in such opinion, upon the
opinion of other counsel of good standing believed to be
reliable and who are 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 its subsidiaries and public officials.
(c) The Representatives shall have received from Simpson
Thacher & Bartlett, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale
of the Initial Shares, the Indenture, any Delayed Delivery Contracts,
the Registration Statement, the Final Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they 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 and
Chief Executive Officer or a Senior Vice President 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
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<PAGE> 12
Prospectus and this Agreement and that to the best of their knowledge:
(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 effectiveness of
the Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, 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.
(e) At the Closing Date, Arthur Andersen LLP 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 the response, if any, to Item 10 of
the Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by them
and included or incorporated by reference in the Registration
Statement and Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange Act and
the regulations thereunder.
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<PAGE> 13
(iii) On the basis of procedures (but not an audit
in accordance with generally accepted auditing standards)
consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through
a specified date not more than five business days
prior to the date of delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries included or
incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period from
the date of the latest balance sheet included or
incorporated by reference in the Registration
Statement and Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form in
all material respects with the applicable accounting
requirements of the Exchange Act and the published
rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated interim
financial statements, included or
-13-
<PAGE> 14
incorporated by reference in the Registration
Statement and Prospectus, for them to be in
conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases
in shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet
included or incorporated by reference in the
Registration Statement and the Prospectus or (ii) for
the period from the date of the latest available
financial data to a specified date not more than five
business days prior to the delivery of such letter,
there was any change in the capital stock or the
long-term debt (other than scheduled repayments of
such debt) or any decreases in shareholders' equity
of the Company and the subsidiaries on a consolidated
basis, except in all instances for changes or
decreases which the Registration Statement and
Prospectus discloses have occurred or may occur, or
Arthur Andersen shall state any specific changes or
decreases.
(iv) The letter shall also state that Arthur
Andersen LLP has carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and Prospectus and which are specified by the
Representatives and agreed to by Arthur Andersen LLP, and has
found such amounts, percentages and financial information to
be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified
in such letter.
In addition, at the time this Agreement is executed, Arthur
Andersen LLP shall have furnished to the Representatives a letter or
letters, dated the date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
-14-
<PAGE> 15
(f) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, 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 earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in 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 Shares as contemplated by the
Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(h) 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.
If any of the conditions specified in this Section 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
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters here under 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. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including capital duties,
stamp duties and stock transfer taxes, if any, payable upon issuance of any of
the Shares, the sale of the Shares to the Underwriters and the fees and expenses
of the transfer agent for the Shares, (iv) the fees and disbursements of the
Company's counsel and accountants, (v) the qualification of the Shares under
state securities laws in accordance with the provisions of Section 4(e),
including filing fees and the
-15-
<PAGE> 16
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies of the Blue Sky
Survey, and (viii) the fee of the National Association of Securities Dealers,
Inc. and, if applicable, the New York Stock Exchange.
If the sale of the Shares provided for herein is not
consummated 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 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 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 Shares.
7. Conditions to Purchase of Option Shares. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase all
or any portion of the Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for the Option
Shares that they shall have respectively agreed to purchase hereunder are
subject to the accuracy of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened; and any required filing of the Final Prospectus pursuant
to Rule 424(b) or Rule 434 under the Act shall have been made within
the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the Option
Shares:
(i) the favorable opinion of [Wachtell, Lipton,
Rosen & Katz], counsel for the Company, in form and
-16-
<PAGE> 17
substance satisfactory to counsel for the Underwriters, to the
same effect as the opinion required by Section 5(b);
(ii) the favorable opinion of [Thomas J. Lakin],
General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the same
effect as the opinion required by Section 5(b);
(iii) the favorable opinion of Simpson Thacher &
Bartlett, counsel for the Underwriters, to the same effect as
the opinion required by Section 5(c);
(iv) a certificate, of the Chairman of the Board
and Chief Executive Officer or Senior Vice President of the
Company and of the principal financial or accounting officer
of the Company with respect to the matters set forth in
Section 5(d);
(v) a letter from Arthur Andersen, in form and
substance satisfactory to the Underwriters, substantially the
same in scope and substance as the letter furnished to the
Underwriters pursuant to Section 5(e) except that the
"specified date" in the letter furnished pursuant to this
Section 7(b)(iv) shall be a date not more than five days prior
to the Date of Delivery;
(vi) Subsequent to the respective dates as of
which information is given in the Registration Statement and
the Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to in
paragraph (b)(iv) of this Section 7 or (ii) any change, or any
development involving a prospective change, in or affecting
the earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in
clause (i) or (ii) above, is, in 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 Shares as contemplated by the Registration
Statement and the Final Prospectus; and
(vii) such other information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and
-17-
<PAGE> 18
as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and their counsel, this Agreement and all obligations of the Underwriters here
under may be canceled at, or at any time prior to, the Date of Delivery by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter 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 any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Shares 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 arise out of
or are based upon 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 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 connection 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 Shares which are the subject
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 Shares
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
-18-
<PAGE> 19
Prospectus 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 indemnify 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 Underwriter, 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 and under
the heading "Underwriting" or "Plan of Distribution" 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 8 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 8, notify the indemnifying party in writing 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
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants 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 assert such
legal defenses and to otherwise participate in the defense of such
-19-
<PAGE> 20
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
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 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 accordance 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 subparagraph (a), representing the indemnified
parties under subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel 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
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on the 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 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 Section 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 8, 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
-20-
<PAGE> 21
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clause (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 contribution 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
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Shares 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 Shares set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares 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 Shares, and
if such nondefaulting Underwriters do not purchase all the Shares, 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 9, 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.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Shares, if prior to such
time (i) trading in securities
-21-
<PAGE> 22
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal, or Ohio State authorities
or (iii) there shall have occurred any outbreak or material escalation of
hostilities 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 judgment of the
Representatives, impracticable to market the Shares.
11. 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 8 hereof,
and will survive delivery of and payment for the Shares. The provisions of
Section 7 and 8 hereof and this Section 11 shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto, with a copy to: Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, NY 10017-3909, Attn: [ ];
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at [address].
13. 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 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the [State of New York],
without giving effect to principles of conflict of laws.
-22-
<PAGE> 23
If the foregoing is in accordance with your understanding 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,
STAR BANC CORPORATION
By:_______________________
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I
hereto.
By: [Name of Representatives]
By:____________________________
For themselves and the other several Underwriters,
if any, named in Schedule II to the foregoing
Agreement.
-23-
<PAGE> 24
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 33-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts:
________________________
Additional items to be covered by the letter from Arthur Andersen delivered
pursuant to Section 5(e) at the time this Agreement is executed:
________________________
<PAGE> 25
SCHEDULE II
Principal Amount of
Initial Shares to
Underwriters be Purchased
<PAGE> 26
SCHEDULE III
Delayed Delivery Contract
________, 19__
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Star Banc
Corporation (the "Company"), and the Company agrees to sell to the undersigned,
on ________, 19__ (the "Delivery Date"), ______ shares of the Company's Common
Stock (the "Shares") offered by the Company's Final Prospectus dated ______,
19__, receipt of a copy of which is hereby acknowledged, at a purchase price of
___% of the principal amount thereof, plus accrued interest, 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 Shares to be purchased by the undersigned
shall be made on or before 11:00 A.M. on the Delivery Date to or upon the order
of the Company in New York Clearing House (next day) 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 Shares 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 Shares will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate amount of Shares
to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Shares on the Delivery Date, and the obligation of the Company to
sell and deliver Shares 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 Shares to 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
<PAGE> 27
subject, and (2) the Company, on or before the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such amount of the Shares as is to be
sold to them pursuant to the Underwriting Agreement referred to in the Final
Prospectus 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
Shares, and the obligation of the Company to cause the Shares to be sold and
delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Shares 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 successors, 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 the 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.
-2-
<PAGE> 28
This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
Very truly yours,
___________________________________
(Name of Purchaser)
By:________________________________
(Signature and Title of Officer)
___________________________________
(Address)
Accepted:
STAR BANC CORPORATION
By:______________________
(Authorized Signature)
-3-
<PAGE> 29
SCHEDULE IV
_________ Shares
STAR BANC CORPORATION
(an Ohio corporation)
Common Stock
PRICING AGREEMENT
_____________ __, 199_
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Purchase Agreement, dated
_____________ __, 199_ (the "Underwriting Agreement"), relating to the purchase
by the several Underwriters named in Schedule I thereto, for whom you are acting
as representatives (the "Representatives"), of the above shares of Common Stock
(the "Initial Shares"), of Star Banc Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of
the Purchase Agreement) shall be at 9:30 A.M., New York City time, on __________
__, 199_ at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New
York, NY 10017-3909.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be
paid by the several Underwriters shall be $__.__, being an amount equal to the
initial public offering price set forth above less $_.__ per share.
<PAGE> 30
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
STAR BANC CORPORATION
By:_________________________
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By: ______________________________
For themselves and as Representatives
of the other Underwriters named in
Schedule A hereto.
-2-
<PAGE> 31
SCHEDULE A
<PAGE> 1
EXHIBIT 4.3
[FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY") (55 WATER
STREET, NEW YORK, NEW YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OF ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY(1)
<TABLE>
<CAPTION>
<S> <C> <C>
REGISTERED CUSIP No. PRINCIPAL AMOUNT
No. FXR-____________________ ____________________________ ____________________________
</TABLE>
STAR BANC CORPORATION
SENIOR MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
<TABLE>
<CAPTION>
ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
<S> <C> <C>
INTEREST PAYMENT DATE(S) RECORD DATE(S): DEFAULT RATE:
[] _________ and _________ [] _________ and _________
[] Other: [] Other:
OPTIONAL REDEMPTION
[] No
[] Yes, at option of Company
Optional Redemption Date(s)
Optional Redemption Price
REPAYMENT
[] No
[] Yes, at option of Holder
Optional Repayment Date:
Optional Repayment Price:
</TABLE>
- --------
1 This paragraph applies to Global Securities only.
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C> <C>
INTEREST RATE RESET
[ ] No
[ ] Yes, at option of the Company OPTIONAL RESET DATE(S):
EXTENSION OF MATURITY
[ ] No
[ ] Yes, at option of the Company
EXTENSION PERIOD: NO. OF EXTENSION PERIODS: FINAL MATURITY:
SPECIFIED CURRENCY:
[ ] U.S. dollars
[ ] Other: EXCHANGE RATE AGENT:
AUTHORIZED DENOMINATION
[ ] $1,000 and integral multiples thereof
[ ] Other:
ORIGINAL ISSUE DISCOUNT:
[ ] No
[ ] Yes
TOTAL AMOUNT OF OID: INITIAL ACCRUAL PERIOD: YIELD TO MATURITY:
AMORTIZING NOTE:
[ ] No
[ ] Yes (See Addendum)
INDEXED NOTE:
[ ] No
[ ] Yes (See Addendum)
ADDENDUM ATTACHED
[ ] No
[ ] Yes
OTHER PROVISIONS:
</TABLE>
2
<PAGE> 3
STAR BANC CORPORATION (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 ____________________, on the Stated Maturity Date
specified above (or any Redemption Date or Repayment Date, each as defined on
the reverse hereof) (each such Stated Maturity Date, Redemption Date or
Repayment Date being hereinafter referred to as the "Maturity" with respect to
the principal repayable on such date) and to pay interest thereon, at the
Interest Rate per annum specified above, until the principal hereof is paid or
duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum (if any)
specified above on any overdue principal, premium and/or interest. The Company
will pay interest semi-annually in arrears on each Interest Payment Date, if
any, specified above (each, an "Interest Payment Date"), commencing with the
first Interest Payment Date next succeeding the Issue Date specified above, and
at Maturity; provided, however, that the original payment of interest on any
Note originally issued between a record date and an Interest Payment Date will
be made on the first Interest Payment Date following the next succeeding record
date to the Holder of this Note on such succeeding record date. Unless otherwise
specified on the face hereof, interest on this Note (as defined on the reverse
hereof) will be computed on the basis of a 360-day year of twelve 30-day months.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other Provisions" apply to this Note as specified above, this Note shall be
modified by and subject to the terms set forth in such Addendum or such "Other
Provisions."
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Issue Date if no interest has been paid or duly
provided for with respect to this Note) to, but excluding, the applicable
Interest Payment Date or the Maturity, as the case may be. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the Record Date specified above (whether or not a Business
Day, as defined below) that is next preceding March 30 and September 30 or other
specified Interest Payment Dates (the "Regular Record Date"); provided, however,
that interest payable at Maturity will be payable to the person to whom the
principal hereof and premium, if any, hereon shall be payable. Any such interest
not so punctually paid or duly provided for on any Interest Payment Date with
respect to this Note ("Defaulted Interest") will forthwith cease to be payable
to the Holder on such Regular Record Date, and, at the election of the Company,
either (i) may be paid to the person in whose name this Note 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 hereinafter referred to, upon notice mailed
to the Holder of this Note not less than 10 days prior to such Special Record
Date, or (ii) may be paid at any time in any other lawful manner not
inconsistent with the Indenture and upon such notice as may be required thereby,
all as more completely described in the Indenture applicable to this Note.
"Business Day," with respect to any Note means any day, other than a
Saturday or Sunday, that is (i) not a legal holiday or a day on which banking
institutions are authorized or required by law, regulation or executive order to
be closed in (a) The City of New York or (b) if the Specified Currency for such
Note is other than U.S. dollars, the financial center of the country issuing
such Specified Currency (which, in the case of ECU, shall be Brussels, Belgium)
and (ii) if such Note is a LIBOR Note (as defined below), a London Banking Day.
"London Banking Day" with respect to any Note means any day on which dealings in
deposits in the Specified Currency of such Note are transacted in the London
interbank market.
Payment of principal of (and premium, if any) and any interest in
respect of this Note due at Maturity to be made in U.S. dollars will be made in
immediately available funds upon presentation and surrender of this Note (and,
with respect to any applicable repayment of this Note, a duly completed election
form as contemplated on the reverse hereof) at the office of the Trustee in The
City of New York or at such other places as may be designated by the Company,
provided that the Note is presented to the Trustee in time for the Trustee to
make such payments in such funds in accordance with its normal procedures.
Unless otherwise specified above, if any payment at Maturity is to be made in a
Specified Currency (specified above) other than U.S. dollars as set forth below,
such payment will be made by wire transfer of immediately available funds
pursuant
3
<PAGE> 4
to the instructions of the Holder of this Note (acceptable to the Company and
the Trustee) and as shall have been designated by the Holder hereof at least
fifteen Business Days prior to the Date the Note is presented and surrendered at
the aforementioned office of the Trustee. (Such designation with respect to a
payment in other than U.S. dollars shall be made by filing the appropriate
information with the Trustee at the office of the Trustee in The City of New
York, and, unless revoked, any such designation made with respect to this Note
by its registered Holder will remain in effect with respect to any further
payments with respect to this Note payable to its Holder.) If such a payment
with respect to this Note cannot be made by wire transfer because the required
designation has not been received by the Trustee on or before the requisite date
or for any other reason, a notice will be mailed to the Holder of this Note at
its registered address requesting a designation pursuant to which such wire
transfer can be made and, upon the Trustee's receipt of such a designation, such
payment will be made within five Business Days of such receipt. The Company will
pay any administrative costs imposed by banks in connection with making payments
by wire transfer, but any tax, assessment or governmental charge imposed upon
payments will be borne by the Holder of this Note.
If this Note is denominated in and principal (and premium, if any) and
any interest is payable in U.S. dollars, principal (and premium, if any) and any
interest will be payable at the principal corporate trust office of the Trustee
in The City of New York, or at such other places as may be designated by the
Company, provided that the Company, at its option, may pay interest other than
interest due at Maturity by check mailed or delivered to the address of the
person entitled thereto as such address appears in the Security Register, and
provided, further, that a Holder of U.S. $10,000,000 (or, if the Specified
Currency specified above is other than U.S. dollars, the equivalent thereof in
the Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than fifteen calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such Holder.
If any Interest Payment Date, Redemption Date or Stated Maturity falls
on a day that is not a Business Day, the required payment of principal, premium,
if any, and/or interest need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
date such payment was due, and no interest shall accrue with respect to such
payment for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to the date of such payment on the
next succeeding Business Day.
Payments of principal of (and premium, if any) and interest on any Note
denominated in a Specified Currency other than U.S. dollars (a "Foreign Currency
Note") will be made in U.S. dollars in the manner described in the following
paragraph. A Holder of a Foreign Currency Note may elect to receive payment of
the principal of and premium, if any, and interest on such Note in the Specified
Currency by submitting a written request for such payment to the Trustee at its
Corporate Trust Office in The City of New York or not later than 15 calendar
days prior to the applicable payment date. Such written request may be mailed or
hand-delivered or sent by cable, telex or other form of facsimile transmission.
Such election will remain in effect until revoked by written notice to the
Trustee received not later than fifteen calendar days prior to the applicable
payment date. Holders of Foreign Currency Notes whose Notes are to be held in
the name of a broker or nominee should contact such broker or nominee to
determine whether and how an election to receive payments in the applicable
Specified Currency may be made.
The amount of any U.S. dollar payment in respect of a Foreign Currency
Note will be determined by the Exchange Rate Agent at approximately 11:00 a.m.
New York City time, on the second Business Day preceding the applicable payment
date (or, if no such rate is quoted on such date, the last date on which such
rate was quoted), from three (or, if three are not available, then two)
recognized foreign exchange dealers in The City of New York (one of which may be
the Agent and another of which may be the Exchange Rate Agent, for the purchase
by the quoting dealer, for settlement on such payment date, of the aggregate
amount of such Specified Currency payable on such payment date in respect of all
Foreign Currency Notes denominated in such Specified Currency. All currency
exchange costs will be borne by the Holders of such Notes by deductions from
such payments. If no bid quotations are available, such payments will be made in
such Specified Currency,
4
<PAGE> 5
unless such Specified Currency is unavailable due to the imposition of exchange
controls or other circumstances beyond the Company's control, in which case such
payments will be made in accordance with the following paragraph.
If the principal of (and premium, if any) or any interest on any Note
is payable in a Specified Currency other than U.S. dollars and such Specified
Currency is not available to the Company for making payments thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, the Company will be entitled to satisfy its obligations to the Holder
of such Note by making such payment (including any such payment at Maturity) in
U.S. dollars on the basis of the Market Exchange Rate for such currency as
determined on the second Business Day prior to such payment or, if such Market
Exchange Rate is not then available, on the basis of the most recently available
Market Exchange Rate or as otherwise provided herein. Any payment made under
such circumstances in U.S. dollars where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default under
the applicable Indenture. The "Market Exchange Rate" for a Specified Currency
other than U.S. dollars means the noon buying rate in The City of New York for
the cable transfer of such Specified Currency, as certified for customs the
Federal Reserve Bank of New York.
[All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.]
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Star Banc Corporation has caused this Note to be
executed.
STAR BANC CORPORATION
Attest
By:_____________________________ By:_________________________________
Title: Title:
[SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION:
This is one of the Notes of the series
designated therein referred to in the
within-mentioned Indenture.
_____________________________________
as Trustee
By:__________________________________
Authorized Signatory
5
<PAGE> 6
[REVERSE OF NOTE]
STAR BANC CORPORATION
SENIOR MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated March 18, 1997 as amended, modified or supplemented from time to time (the
"Indenture"), between the Company, certain subsidiaries of the Company named
therein, and Mellon Bank, N.A., as Trustee (the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Debt Securities, and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. This Note is one of the series of Debt Securities designated as
"Medium-Term Notes, Due Nine Months or More from Date of Issue" (the "Notes").
All terms used but not defined in this Note or specified on the face hereof or
in an Addendum hereto shall have the meanings assigned to such terms in the
Indenture.
This Note is issuable only in registered form without coupons. Notes
denominated in U.S. dollars will be initially issued in denominations of $1,000
and integral multiples thereof, and Notes denominated in other than U.S. dollars
will be initially issued in denominations of the equivalent of $1,000 in the
Specified Currency (rounded down to an integral multiple of 1,000 units of such
Specified Currency), at the noon buying rate for cable transfers in The City of
New York of such Specified Currency (the "Exchange Rate") on the Business Day
next preceding the date on which the Company accepts the offer to purchase such
Note. Interest rates offered by the Company with respect to a Note may differ
depending upon, among other things, the aggregate principal amount of the Notes
purchased in any single transaction.
The Company has the option, if specified on the face hereof, to reset
the interest rate on the date or dates specified on the face hereof as Optional
Reset Dates. If the Company elects to reset the interest rate, the Holder will
have the option to elect repayment of this Note by the Company on any Optional
Reset Date at a price equal to the aggregate principal amount thereof
outstanding on, plus any interest accrued to, such Optional Reset Date (or, for
an Original Issue Discount Note, as specified below). In order for this Note to
be so repaid on an Optional Reset Date, the Holder must follow the procedures
specified below in connection with optional repayment, except that (i) the
period for delivery of such Note or notification to the Trustee will be at least
25 but not more than 35 days prior to such Optional Reset Date and (ii) a Holder
who has tendered a Note for repayment pursuant to a Reset Notice (as defined
below) may, by written notice to the Trustee, revoke any such tender until the
close of business on the tenth day prior to such Optional Reset Date.
The Company may exercise the option to reset the interest rate on this
Note by notifying the Trustee of such exercise at least 45 but not more than 60
days prior to an Optional Reset Date for such Note. Not later than 40 days prior
to such Optional Reset Date, the Trustee for this Note will mail, first class,
postage prepaid, or deliver to the Holder a notice (the "Reset Notice"). The
Reset Notice will indicate whether the Company has elected to reset the interest
rate and, if so, (i) such new interest rate and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or, if there is no such next Optional Reset Date, to the Stated
Maturity Date of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, the Company may, at its option, revoke
the interest rate as provided for in the Reset Notice, and establish a higher
interest rate than the interest rate provided for in the relevant Reset Notice
for the Subsequent Interest Period commencing on such Optional Reset Date, by
causing the Trustee to mail or deliver to the Holder, not later than 20 days
prior to an Optional Reset Date for this Note (or, if such day is not a Business
Day, on the immediately succeeding Business Day), notice of such higher interest
rate. Such notice will be irrevocable. The Company must notify the Trustee of
its intentions to revoke such Reset
6
<PAGE> 7
Notice at least 20 days prior to such Optional Reset Date. If the interest rate
of this Note is reset on an Optional Reset Date this Note will bear such higher
interest rate for the Subsequent Interest Period.
If specified on the face hereof, this Note will be subject to
redemption at the option of the Company, in whole or in part, on the date or
dates (each an "Optional Redemption Date") specified on the face hereof on which
this Note may be redeemed and the price (the "Redemption Price") at which
(together with accrued interest to such Optional Redemption Date) this Note may
be redeemed on each such Optional Redemption Date. The Company may exercise such
option with respect to this Note by notifying the Trustee for at least 45 days
prior to any Optional Redemption Date. At least 30 but not more than 60 days
prior to the date of redemption, such Trustee shall mail notice of such
redemption, first class, postage prepaid, to the Holder of this Note. In the
event of a partial redemption, a new Note or Notes for the unredeemed portion
thereof shall be issued to the Holder hereof upon the cancellation thereof.
If specified on the face hereof, the Holder of this Note will have the
option to elect repayment of this Note by the Company prior to its Stated
Maturity, on the date or dates on which this Note may be repaid (each an
"Optional Repayment Date") and the price (the "Optional Repayment Price") at
which, together with accrued interest to such Optional Repayment Date, this Note
may be repaid on each such Optional Repayment Date.
In order for a Note to be repaid, the Trustee for this Note must
receive, at least 30 but not more than 45 days prior to an Optional Repayment
Date (i) such Note with the form entitled "Option to Elect Repayment" on the
reverse thereof duly completed, or (ii) a telegram, telex, facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, inc. or a commercial bank or trust
company in the United States setting forth the name of the Holder of this Note,
the principal amount of this Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note to be
repaid with the form entitled "Option to Elect Repayment" on the reverse of the
Note duly completed will be received by such Trustee not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter. If the procedure described in clause (ii) of the preceding sentence is
followed, then the Note and form duly completed must be received by such Trustee
by such fifth Business Day. Any tender of this Note by the Holder for repayment
(except pursuant to a Reset Notice or an Extension Notice) shall be irrevocable.
The repayment option may be exercised by the Holder of this Note for less than
the entire principal amount hereof provided that the principal amount remaining
outstanding after repayment is an authorized denomination. Upon such partial
repayment, this Note shall be cancelled and a new Note or Notes for the
remaining principal amount hereof shall be issued in the name of the Holder
hereof.
If a Note is represented by a Global Security, the Depositary's nominee
will be the Holder of such Note and therefore will be the only entity that can
exercise a right to repayment. In order to ensure that the Depositary's nominee
will timely exercise a right to repayment with respect to a particular Note, the
beneficial owner of such Note must instruct the broker or other direct or
indirect participant through which it holds an interest in such Note to notify
the Depositary of its desire to exercise a right to repayment. Different firms
have different cut-off times for accepting instructions from their customers
and, accordingly, each beneficial owner should consult the broker or other
direct or indirect participant through which it holds an interest in a Note in
order to ascertain the cut-off time by which such an instruction must be given
in order for timely notice to be delivered to the Depositary.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of Maturity will be equal to the Amortized
Face Amount (as defined below) as of the date of such event. The "Amortized Face
Amount" means an amount equal to (i) the Issue Price plus that portion of the
difference between the Issue Price and the principal amount of such Note that
has accrued at the Yield to Maturity set forth in the Pricing Supplement
(computed in accordance with generally accepted United States bond yield
computation principles) by such date of redemption or repayment, but in no event
shall the Amortized Face Amount of a Discount Note exceed its principal amount.
7
<PAGE> 8
If the Maturity of an Original Discount Note that bears no interest
falls on a day that is not a Business Day with respect to such Original Issue
Discount Note, the payment due at Maturity will be made on the following day
that is a Business Day with the same force and effect as if it were made on the
date such payment was due, and no interest shall accrue on the amount so payable
for the period from and after Maturity.
Unless otherwise stated on the face hereof, each Note will mature at
the Stated Maturity Date of such Note. If stated on the face hereof, the Company
has the option to extend the Stated Maturity Date of such Note for one or more
periods of whole years from one to five (each an "Extension Period") up to but
not beyond the date (the "Final Maturity") set forth on the face hereof.
The Company may exercise such option with respect to a Note by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the old Stated Maturity Date for such Note. Not later than 40 days
prior to the old Stated Maturity Date of such Note, the Trustee for such Note
will mail, first class, postage prepaid, or deliver to the Holder thereof a
notice (the "Extension Notice"). The Extension Notice will set forth (i) the
election of the Company to extend the Stated Maturity Date of such Note; (ii)
the new Stated Maturity Date; (iii) the interest rate applicable to the
Extension Period; and (iv) the provisions, if any, for redemption during the
Extension Period, including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur during
the Extension Period. Upon the mailing or delivering by such Trustee of an
Extension Notice to the Holder of a Note, the Stated Maturity Date of such Note
shall be extended automatically, and, except as modified by the Extension Notice
and as described in the next paragraph, such Note will have the same terms as
prior to the mailing or delivering of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the old
Stated Maturity Date of such Note (or, if such day is not a Business Day, on the
immediately succeeding Business Day), the Company may, at its option, revoke the
interest rate provided for in the Extension Notice for such Note and establish a
higher interest rate for the Extension Period, by causing the Trustee for such
Note to mail, first class, postage prepaid, or deliver notice of such higher
interest rate to the Holder of such Note. Such notice will be irrevocable. All
Notes with respect to which the Stated Maturity Date is extended will bear such
higher interest rate for the Extension Period, whether or not tendered for
repayment.
If the Company extends the Stated Maturity Date of this Note, the
Holder of this Note will have the option to elect repayment of such Note by the
Company on the old Stated Maturity Date at a price equal to the aggregate
principal amount thereof outstanding on, plus interest accrued to, such date or,
for an Original Issue Discount Note, as described above. In order for a Note to
be repaid on the old Stated Maturity Date once the Company has extended the
Stated Maturity Date thereof, the Holder thereof must follow the procedures
applicable to redemption and repayment for optional repayment, except that (i)
the period for delivery of this Note or notification to the Trustee for this
Note will be at least 25 but not more than 35 days prior to the old Stated
Maturity Date and (ii) a Holder who has tendered a Note for repayment pursuant
to an Extension Notice may, by written notice to the Trustee, revoke any such
tender for repayment until the close of business on the tenth day before the old
Stated Maturity Date.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture. The Indenture contains
provisions setting forth certain conditions to the institution of proceedings by
Holders of Notes with respect to the Indenture or for any remedy under the
Indenture.
The Indenture contains provisions for discharge of the Notes and for
defeasance of (i) the entire indebtedness of the Notes or (ii) certain covenants
and Events of Default with respect to the Notes, in each case upon compliance
with certain conditions set forth therein, which provisions apply to the Notes.
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 a series of Debt Securities at any time
by the Company and the Trustee with the consent of the Holders of not less than
a majority of the aggregate principal amount of all series of Debt Securities
(acting as one class) at the time outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of not less than a
8
<PAGE> 9
majority of the aggregate principal amount of the outstanding Debt Securities
affected thereby, on behalf of the Holders of all such Debt Securities, to waive
compliance by the Company with certain restrictive provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less than a
majority of the aggregate principal amount of any series (or, in certain cases,
all outstanding Debt Securities), in certain instances, to waive, on behalf of
all of the Holders of Debt Securities of such series (or all outstanding Debt
Securities), certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in exchange heretofore
or in lieu hereof, whether or not notation of such consent or waiver is made
upon the Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where this Note is payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. As
provided in the Indenture and subject to certain limitations therein and herein
set forth, this Note is exchangeable for a like aggregate principal amount of
Notes of different authorized denominations but otherwise having the same terms
and conditions, as requested by the Holder hereof surrendering the same. No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent the application of the
laws of another jurisdiction would be required thereby.
9
<PAGE> 10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Note, shall be construed as though they were written out in full according to
applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT - _______ Custodian ______
TEN ENT - as tenants by the MIN ACT (Cuss) Minor
entireties under Uniform Gifts to Minors Act
JT TEN - as joint tenants with
right of survivorship --------------------------------
and not as tenants (State)
in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------
- -------------------------------------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- -------------------------------------------------------------------------------
the within Note and all rights thereunder hereby irrevocably constituting and
appointing
- -------------------------------------------------------------------------------
Attorney to transfer said Note on the books of the Trustee, with full power of
substitution in the premises.
Date:
----------------------------
----------------------------------------
----------------------------------------
Notice: The signature(s) on this
assignment must correspond with the
name(s) as written upon the face of the
within Note in every particular, without
alteration or enlargement or any change
whatsoever.
10
<PAGE> 11
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal [to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date], to the undersigned,
at ___________
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, not more than 60 nor less than 30 calendar days prior to the
Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than U.S. dollars, the minimum authorized
denomination specified on the face hereof)) which the Holder elects to have
repaid and specify the denomination or denominations (which shall be an
authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $ ________________ ___________________________________
Notice: The signature(s) on this
Option to Elect Repayment must
Date: __________________________ correspond with the name(s) as
written upon the face of the within
Note in every particular, without
alteration or enlargement or any
change whatsoever.
11
<PAGE> 1
EXHIBIT 4.4
FORM OF FLOATING RATE MEDIUM-TERM NOTE
FACE OF NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY(1)
<TABLE>
<CAPTION>
<S> <C> <C>
REGISTERED CUSIP No. PRINCIPAL AMOUNT
No. FLR-____________________ ____________________________ ____________________________
</TABLE>
STAR BANC CORPORATION
SENIOR MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
<TABLE>
<CAPTION>
<S> <C> <C>
INTEREST RATE BASIS OR BASES: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
IF LIBOR:
[ ] LIBOR Reuters
[ ] LIBOR Telerate
INDEX CURRENCY:
EXTENSION OF MATURITY
[ ] Yes [ ] No
EXTENSION PERIOD: FINAL MATURITY:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST RESET PERIOD:
SPREAD MINIMUM INTEREST RATE: INTEREST PAYMENT DATE(S):
(PLUS OR MINUS):
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
</TABLE>
- --------
1 This paragraph applies to Global Securities only.
<PAGE> 2
<TABLE>
<CAPTION>
DEFAULT RATE:
<S> <C> <C>
[REDEMPTION COMMENCEMENT DATE:] [INITIAL REDEMPTION PERCENTAGE:] [ANNUAL REDEMPTION
PERCENTAGE REDUCTION:]
OPTIONAL REDEMPTION
[ ] No
[ ] Yes (at option of Company)
Optional Redemption Date(s)
Optional Redemption Price
OPTIONAL REPAYMENT DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Indexed Note from to
[ ] Original Issue Discount Note [ ] Actual/360 for the period
Issue Price: % from to
[ ] Actual/Actual for the period
from to
Applicable Interest Rate Basis:
SPECIFIED CURRENCY:
[ ] U.S. dollars
[ ] Other
EXCHANGE RATE AGENT:
AUTHORIZED DENOMINATION:
[ ] $1,000 and integral multiples thereof
[ ] Other:
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
</TABLE>
STAR BANC CORPORATION (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 _______________ on the Stated Maturity specified above (or any Redemption
Date or Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity, Redemption Date or Repayment Date being hereinafter referred to as the
"Maturity Date" with respect to the principal repayable on such date) and to pay
interest thereon, at a rate per annum equal to the Initial Interest Rate
specified above, until the Interest Reset Date specified above and thereafter at
a rate determined in accordance with the provisions specified above and on the
reverse hereof with respect to one or more Interest Rate Bases specified above
until the principal hereof is paid or duly made available for payment, and (to
the extent that the payment of such interest shall be legally enforceable) at
the Default Rate per annum specified above on any overdue principal,
2
<PAGE> 3
premium and/or interest. The Company will pay interest in arrears on each
Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; provided,
however, that if the Original Issue Date occurs between a Regular Record Date
(as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding the
Original Issue Date to the Holder of this Note on the Regular Record Date with
respect to such second Interest Payment Date.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions."
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for with respect to this Note) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be (each,
an "Interest Period"). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Regular Record Date"); provided,
however, that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof and premium, if any, hereon shall be
payable. Any such interest not so punctually paid or duly provided for on any
Interest Payment Date with respect to this Note ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the Regular Record Date, and
shall be paid to the person in whose name this Note is registered at the close
of business on a special record date (the "Special Record Date") for the payment
of such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the Holder of this Note by the Trustee not less
than 10 calendar days prior to such Special Record Date, or shall be paid at any
time in any other lawful manner, all as more completely described in the
Indenture applicable to this Note.
The "Spread" is the number of basis points specified on the face hereof
to be added or subtracted from the related Interest Rate Basis on the face
hereof, and the "Spread Multiplier" is the percentage specified on the face
hereof as applying to the Interest Rate Basis for this Note.
"Index Maturity" means the period to maturity of the instrument or
obligation, as specified on the face hereof. Unless otherwise above, Mellon
Bank, N.A. will be the calculation agent (the "Calculation Agent") for this
Note.
"Business Day", with respect to any Note means any day, other than a
Saturday or Sunday, that is (i) not a legal holiday or a day on which banking
institutions are authorized or required by law, regulation or executive order to
be closed in (a) The City of New York or (b) if the Specified Currency for such
Note is other than U.S. dollars, the financial center of the country issuing
such Specified Currency (which, in the case of ECU, shall be Brussels, Belgium)
and (ii) if such Note is a LIBOR Note (as defined below), a London Banking Day.
"London Banking Day" with respect to any Note means any day on which dealings in
deposits in the Specified Currency of such Note are transacted in the London
interbank market.
Payment of principal of (and premium, if any) and any interest in
respect of this Note due on the Maturity Date to be made in U.S. dollars will be
made in immediately available funds upon presentation and surrender of this Note
(and, with respect to any applicable repayment of this Note, a duly completed
election form as contemplated on the reverse hereof) at the office of the
Trustee that the Company may determine; provided, however, that the Note is
presented to the Trustee in time for the Trustee to make such payments in such
funds in accordance with its normal procedures. If such payment is to be made in
a Specified Currency other than U.S. dollars as set forth below, such payment
will be made by wire transfer of immediately available funds pursuant to the
instructions of the Holder hereof (acceptable to the Company and the Trustee) as
shall have been designated by the Holder hereof at least fifteen Business Days
prior to the Maturity Date, this Note is presented and surrendered at the
aforementioned office of the Trustee in time for the Trustee to make such
3
<PAGE> 4
payments in such funds in accordance with its normal procedures. (Such
designation shall be made by filing the appropriate information with the Trustee
at the office of the Trustee in The City of New York, and, unless revoked, any
such designation made with respect to this Note by its registered Holder will
remain in effect with respect to any further payments with respect to this Note
payable to its Holder.) If a payment with respect to this Note cannot be made by
wire transfer because the required designation has not been received by the
Trustee on or before the requisite date or for any other reason, a notice will
be mailed to the Holder of this Note at its registered address requesting a
designation pursuant to which such wire transfer can be made and, upon the
Trustee's receipt of such a designation, such payment will be made within five
Business Days of such receipt. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer, but any
tax, assessment or governmental charge imposed upon payments will be borne by
the Holder of this Note.
Payments of interest due on any Interest Payment Date other than the
Maturity Date to be made in U.S. dollars will be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register maintained at the office of the Trustee in the City of New
York; provided, however, that a Holder of U.S. $10,000,000 (or, if the Specified
Currency specified above is other than U.S. dollars, the equivalent thereof in
the Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than fifteen calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such Holder.
If any Interest Payment Date for any Floating Rate Note (other than the
Maturity Date) would otherwise be a day that is not a Business Day, the required
payment of interest may be made on the next succeeding Business day with the
same force and effect as if made on the date such payment was due, except that
in the case of a Floating Rate Note that is a LIBOR Note, if such Business Day
falls in the next succeeding calendar month, such Interest Payment Date shall be
the immediately preceding Business Day. If a Maturity Date of a Floating Rate
Note falls on a date that is not a Business Day with the same force and effect
as if made on the date such payment was due, the required payment of interest
and principal (and premium, if any) may be made on the next succeeding Business
Day, and no interest on such payment will accrue for the period from and after
the Maturity Date to the date of such payment on the next succeeding Business
Day.
Payments of principal of (and premium, if any) and interest on any Note
denominated in a Specified Currency other than U.S. dollars (a "Foreign Currency
Note") will be made in U.S. dollars in the manner described in the following
paragraph. A Holder of a Foreign Currency Note may elect to receive payment of
the principal of and premium, if any, and interest on such note in the specified
currency by submitting a written request for such payment to Trustee at its
Corporate Trust Office in The City of New York on or before such Regular Record
Date, not later than 15 calendar days prior to the applicable payment date.
The amount of any U.S. dollar payment in respect of a Foreign Currency
Note will be determined by the Exchange Rate Agent at approximately 11:00 a.m.
New York City time, on the second Business Day preceding the applicable payment
date (or, if no such rate is quoted on such date, the last date on which such
rate was quoted), from three (or, if three are not available, then two)
recognized foreign exchange dealers in The City of New York (one of which may be
the Agent and another of which may be the Exchange Rate Agent, for the purchase
by the quoting dealer, for settlement on such payment date, of the aggregate
amount of such Specified Currency payable on such payment date in respect of all
Foreign Currency Notes denominated in such Specified Currency. All currency
exchange costs will be borne by the Holders of such Notes by deductions from
such payments. If no bid quotations are available, such payments will be made in
such Specified Currency, unless such Specified Currency is unavailable due to
the imposition of exchange controls or other circumstances beyond the Company's
control, in which case such payments will be made in accordance with the
following paragraph.
If the principal of (and premium, if any) or any interest on any Note
is payable in other than U.S. dollars and such Specified Currency is not
available due to the imposition of exchange controls or other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligations to the
4
<PAGE> 5
Holder of such Note by making such payment (including any such payment at
maturity) in U.S. dollars on the basis of the Market Exchange Rate for such
currency on the second Business Day prior to such payment or, if such Market
Exchange Rate is not then available, on the basis of the most recently available
Market Exchange Rate or as otherwise specified herein. The "Market Exchange
Rate" for a Specified Currency other than U.S. dollars means the noon buying
rate in The City of New York for cable transfers of such Specified Currency, as
certified for customs by the Federal Reserve Bank of New York.
[All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.]
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
5
<PAGE> 6
IN WITNESS WHEREOF, Star Banc Corporation has caused this Note to be
executed.
STAR BANC CORPORATION
By:
-------------------------------------
Title:
[SEAL
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION:
This is one of the Notes of the series
designated therein referred to in the
within-mentioned Indenture.
- -------------------------
By:
------------------------------------
Authorized Signatory
6
<PAGE> 7
REVERSE OF NOTE
STAR BANC CORPORATION
SENIOR MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of March 18, 1997, as amended, modified or supplemented from time to
time (the "Indenture"), between the Company and Mellon Bank, N.A., as Trustee
(the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Debt
Securities, and of the terms upon which the Debt Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Debt Securities
designated as "Medium-Term Notes, Due 9 Months or more from Date of Issue" (the
"Notes"). All terms used but not defined in this Note specified on the face
hereof or in an Addendum hereto shall have the meanings assigned to such terms
in the Indenture.
This Note is issuable only in registered form without coupons. Notes
denominated in U.S. dollars will be initially issued in denominations of $1,000
and integral multiples thereof, and Notes denominated in other than U.S. dollars
will be initially issued in denominations in the equivalent of $1,000 in the
Specified Currency (rounded to 1,000 units or rounded down to an integral
multiple of 1,000 units of such Specified Currency), at the noon buying rate for
cable transfers in The City of New York for such Specified Currency (the
"Exchange Rate") on the first Business Day next preceding the date on which the
Company accepts the offer to purchase such Note. Interest rates offered by the
Company with respect to a Note may differ depending upon, among other things,
the aggregate principal amount of the Notes purchased in any single transaction.
If specified on the face hereof, this Note will be subject to
redemption at the option of the Company, in whole or in part, on the date or
dates (each an "Optional Redemption Date") specified on the face hereof on which
this Note may be redeemed and the price (the "Redemption Price") at which
(together with accrued interest to such Optional Redemption Date) this Note may
be redeemed on each such Optional Redemption Date. The Company may exercise such
option with respect to this Note by notifying the Trustee for at least 45 days
prior to any Optional Redemption Date. At least 30 but not more than 60 days
prior to the date of redemption, such Trustee shall mail notice of such
redemption, first class, postage prepaid, to the Holder of this Note. In the
event of a partial redemption, a new Note or Notes for the unredeemed portion
thereof shall be issued to the Holder hereof upon the cancellation thereof.
If specified on the face hereof, the Holder of this Note will have the
option to elect repayment of this Note by the Company prior to its Stated
Maturity, on the date or dates on which this Note may be repaid (each an
"Optional Repayment Date") and the price (the "Optional Repayment Price") at
which, together with accrued interest to such Optional Repayment Date, this Note
may be repaid on each such Optional Repayment Date.
In order for a Note to be repaid, the Trustee for this Note must
receive, at least 30 but not more than 45 days prior to an Optional Repayment
Date (i) such Note with the form entitled "Option to Elect Repayment" on the
reverse thereof duly completed, or (ii) a telegram, telex, facsimile
transmission or letter from a member of a national securities exchange or the
National Association of Securities Dealers, inc. or a commercial bank or trust
company in the United States setting forth the name of the Holder of this Note,
the principal amount of this Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note to be
repaid with the form entitled "Option to Elect Repayment" on the reverse of the
Note duly completed will be received by such Trustee not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter. If the procedure described in clause (ii) of the preceding sentence is
followed, then the Note and form duly completed must be received by such Trustee
by such fifth Business Day. Any tender of this Note by the Holder for repayment
(except pursuant to a Reset Notice or an Extension Notice) shall be irrevocable.
The repayment option may be exercised by the Holder of this Note for less than
the entire principal amount hereof provided that
7
<PAGE> 8
the principal amount remaining outstanding after repayment is an authorized
denomination. Upon such partial repayment, this Note shall be cancelled and a
new Note or Notes for the remaining principal amount hereof shall be issued in
the name of the Holder hereof.
If a Note is represented by a Global Security, the Depositary's nominee
will be the Holder of such Note and therefore will be the only entity that can
exercise a right to repayment. In order to ensure that the Depositary's nominee
will timely exercise a right to repayment with respect to a particular Note, the
beneficial owner of such Note must instruct the broker or other direct or
indirect participant through which it holds an interest in such Note to notify
the Depositary of its desire to exercise a right to repayment. Different firms
have different cut-off times for accepting instructions from their customers
and, accordingly, each beneficial owner should consult the broker or other
direct or indirect participant through which it holds an interest in a Note in
order to ascertain the cut-off time by which such an instruction must be given
in order for timely notice to be delivered to the Depositary.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of Maturity will be equal to the Amortized
Face Amount (as defined below) as of the date of such event. The "Amortized Face
Amount" means an amount equal to (i) the Issue Price plus that portion of the
difference between the Issue Price and the principal amount of such Note that
has accrued at the Yield to Maturity set forth in the Pricing Supplement
(computed in accordance with generally accepted United States bond yield
computation principles) by such date of redemption or repayment, but in no event
shall the Amortized Face Amount of a Discount Note exceed its principal amount.
If any Maturity Date of an Original Issue Discount Note that bears no
interest falls on a day that is not a Business Day with respect to such Original
Issue Discount Note, the payment due at such Maturity Date will be made on the
following day that is a Business Day as if it were made on the date such payment
was due, and no interest shall accrue on the amount so payable for the period
from and after such Maturity Date.
This Note shall bear interest at the rate determined by reference to
the applicable interest rate basis (the "Interest Rate Basis" specified on the
face hereof (a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any, in each case as specified on the face hereof.
Commencing on the first Interest Reset Date, the rate at which interest on this
Note shall be payable shall be reset as of each Interest Reset Date specified on
the face hereof; provided, however, that the interest rate in effect for the
period, if any, from the Original Issue Date to the first Interest Reset Date
shall be the Initial Interest Rate specified on the face hereof. Notwithstanding
the foregoing, if an Addendum is attached hereto or "Other/Additional
Provisions" apply to this Note as specified above, this Note shall bear interest
in accordance with and be subject to the terms set forth in such Addendum or
such "Other/Additional Provisions".
Unless otherwise specified on the face hereof, the interest rate with
respect to each Interest Rate Basis will be determined in accordance with the
applicable provisions below. Except as set forth above, the interest rate in
effect on each day shall be (i) if such day is an Interest Reset Date, the
interest rate determined as of the Interest Determination Date (as hereinafter
defined) immediately preceding such Interest Reset Date or (ii) if such day is
not an Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the most recent Interest Reset Date
(or, if none, the Initial Interest rate). If any Interest Reset Date would
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
The interest rate in effect with respect to this Note from the date of
issue to the first Interest Reset Date (the "Initial Interest Rate") will be as
specified on the face of this Note. The interest rate applicable to each
Interest Reset Period commencing on the Interest Reset Date with respect to such
Interest Reset Period will be the rate determined as of the applicable Interest
Determination Date on or prior to the Calculation Date (as defined below). The
"Interest Determination Date" with respect to the CD Rate Notes, the CMT Rate
Notes, the Commercial Paper Rate Notes, the Federal Funds Rate Notes and the
Prime Rate Notes will be the second
8
<PAGE> 9
Business Day immediately preceding the applicable Interest Reset Date; the
"Interest Determination Date" with respect to the Eleventh District Cost of
Funds Rate will be the last working day of the month immediately preceding the
applicable Interest Reset Date on which the Federal Home Loan Bank of San
Francisco publishes the Index (as hereinafter defined); and the "Interest
Determination Date" with respect to LIBOR Notes will be the second London
Business Day immediately preceding the applicable Interest Reset Date. With
respect to the Treasury Rate Notes, the "Interest Determination Date" will be
the day in the week in which the applicable Interest Reset Date falls on which
Treasury Bills (as defined below) would normally be auctioned (Treasury Bills
are normally sold at an auction held on Monday of each week, unless that day is
a legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the Interest Determination Date
shall be such preceding Friday; and provided, however that if an auction shall
fall on the applicable Interest Reset Date, then the Interest Reset Date shall
instead be the first Business Day following such auction. If the interest rate
of this Note is determined with reference to two or more Interest Rate Bases
specified on the face hereof, the "Interest Determination Date" pertaining to
this Note shall be the second Business Day prior to the applicable Interest
Reset Date on which each Interest Rate Basis is determinable. Each Interest Rate
Basis shall be determined as of such date, and the applicable Interest rate
shall take effect on the applicable interest Reset Date.
If any Interest Payment Date for this Note would otherwise be a day
that is not a Business Day, such Interest Payment Date will be postponed to the
next day that is a Business Day, except that in the case of a Note that is a
LIBOR Note, if such Business Day falls in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding Business Day.
Unless otherwise specified on the face hereof, interest payable in
respect of Floating Rate Notes shall be the accrued interest from and including
the Original Issue Date or the last date to which interest has been paid, as the
case may be, to but excluding the applicable Interest Payment Date. In the case
of a Floating Rate Note that resets daily or weekly, interest payable shall be
the accrued interest from and including the original Issue Date or the last date
to which interest has been accrued and paid, as the case may be, to but
excluding the Record Date immediately preceding the applicable Interest payment
Date, except that, at Stated Maturity, interest payable will include interest
accrued to but excluding the Maturity Date.
With respect to this Note, accrued interest is calculated by
multiplying its principal amount by an accrued interest factor. Such accrued
interest factor is computed by adding the interest factor calculated for each
day in the period for which accrued interest is being calculated. Unless
otherwise specified as the Day Count Convention on the face hereof, the interest
factor for each such day will be computed by dividing the interest rate
applicable to such day by 360, in the case of CD Rate Notes, Commercial Paper
Rate Notes, Eleventh District Cost of Funds Rate Notes, Federal Funds Rate
Notes, LIBOR Notes or Prime Rate Notes, or by the actual number of days in the
year in the case of CMT Rate Notes or the Treasury Rate Notes. Unless otherwise
specified in the Day Count Convention on the face hereof, the interest factor
for Notes for which the interest rate is calculated with reference to two or
more Interest Rate Bases will be calculated in each period in the same manner as
if only one of the applicable Interest Rate Bases applied as specified on the
face hereof. All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all U.S. dollar
amounts used in or resulting from such calculation on this Note will be rounded
to the nearest cent.
Upon request of the holder of this Note, the Calculation Agent will
disclose the interest rate then in effect and, if determined, the interest rate
that will become effective as a result of a determination made for the next
succeeding Interest Reset Date with respect to this Note. Unless otherwise
specified on the face hereof, the "Calculation Date," if applicable, pertaining
to any Interest Determination Date will be the earlier of (i) the tenth calendar
day after such Interest Determination Date, or, if such day is not a Business
Day, the next succeeding Business Day or (ii) the Business Day immediately
preceding the applicable Interest Payment Date or the Maturity Date, as the case
may be.
9
<PAGE> 10
Unless otherwise specified on the face hereof, the Calculation Agent
will determine the interest rate with respect to each Interest Rate Basis in
accordance with the applicable provisions below.
CD Rate. CD Rate Notes will bear interest at the rates (calculated with
reference to the CD Rate and the Spread and/or Spread Multiplier, if any, and
subject to the Minimum Interest Rate and the Maximum Interest Rate, if any)
specified on the face hereof.
If an Interest Rate Basis for this Note is specified on the face hereof
as the CD Rate, the CD Rate will be determined as of the applicable Interest
Determination Date (a "CD Rate Interest Determination Date") as the rate on such
date for negotiable certificates of deposit having the specified Index Maturity
as published by the Board of Governors of the Federal Reserve System in
"Statistical Release H. 15(519), Selected Rates" or any successor publication
("H.15(519)") under the heading "CDS (Secondary Market)," or if not published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on such
CD Rate Interest Determination Date for negotiable certificates of deposit
having the specified Index Maturity as published in Composite Quotations under
the heading "Certificates of Deposit." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 a.m., New York
City time, on such CD Rate Interest Determination Date, of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in The City of New
York selected by the Calculation Agent for negotiable certificates of deposit of
major United States money market banks for negotiable certificates of deposit
with a remaining maturity closest to the specified Index Maturity in an amount
that is representative for a single transaction in that market at that time;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate on such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate Interest
Determination Date.
CMT Rate. CMT Rate Notes will bear interest at the rates (calculated
with reference to the CMT Rate and the Spread and/or Spread Multiplier, if any,
and subject to the Minimum Interest Rate and the Maximum Interest Rate, if any)
specified on the face hereof.
If an Interest Rate for this Note is specified on the face hereof as
the CMT Rate, the CMT Rate will be determined as of the applicable Interest
Determination Date (a "CMT Rate Interest Determination Date") as the rate
displayed on the Designated CMT Telerate Page (as defined below) under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Rate Interest Determination Date and (ii) if
the Designated CMT Telerate Page is 7052, the week, or the month, as specified
on the face hereof, ended immediately preceding the week in which the related
CMT Rate Interest Determination Date occurs. If such rate is no longer displayed
on the relevant page, or if not displayed by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or if not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate for the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
the CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York (which may include one or
more of the Agents or their affiliates) selected by the Calculation Agent (from
five such Reference Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one
10
<PAGE> 11
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M., New
York City time, on the CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)) for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least U.S. $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described herein, the CMT Rate will be the CMT Rate in
effect on such CMT Rate Interest Determination Date. If two Treasury Notes with
an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the quotes for the Treasury Note with the shorter remaining term to maturity
will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated on the face hereof (or any other page as
may replace such page on that service) for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519). If no such page is specified on
the face hereof, the Designated CMT Telerate Page will be 7052 for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index will be 2 years.
Commercial Paper Rate. Commercial Paper Rate Notes will bear interest
at the rates (calculated with reference to the Commercial Paper Rate and the
Spread and/or Spread Multiplier, if any, and subject to the Minimum Interest
Rate and the Maximum Interest Rate, if any) specified on the face hereof.
If an Interest Rate Basis for this Note is specified on the face hereof
as the Commercial Paper Rate, the Commercial Paper Rate will be determined as of
the applicable Interest Determination Date (a "Commercial Paper Rate Interest
Determination Date") as the Money Market Yield (calculated as described below)
on such date of the rate for commercial paper having the specified Index
Maturity as published in H. 15(519) under the heading Commercial Paper. In the
event that such rate is not published by 3:00 p.m., New York City time, on the
related Calculation Date, then the Commercial Paper Rate will be the Money
Market Yield on such Commercial Paper Interest Determination Date of the rate
for commercial paper having the specified Index Maturity as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If by 3:00 p.m., New York City
time, on the related Calculation Date such rate is not yet published in
H.15(519) or Composite Quotations, then the Commercial Paper Rate on such
Interest Determination Date will be calculated by the Calculation Agent and will
be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 a.m., New York City time, on such Commercial Paper Rate
Interest Determination Date, of three leading dealers of commercial paper in The
City of New York (which may include one or more Agents or their affiliates)
selected by the Calculation Agent for commercial paper having the specified
Index Maturity placed for an industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized rating agency; provided, however, that
if the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate will be the Commercial
Paper Rate in effect on such Commercial Paper Rate Interest Determination Date.
11
<PAGE> 12
"Money Market Yield" means a yield (expressed as a percentage rounded
to the nearest one-hundredth of a percent, with five one-thousandths of a
percent rounded upwards) calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
--------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Eleventh District Cost of Funds Rate. Eleventh District Cost of Funds
Rate Notes will bear interest at the rates (calculated with reference to the
Eleventh District Cost of Funds Rate and the Spread and/or Spread Multiplier, if
any, and subject to the Minimum Interest Rate and the Maximum Interest Rate, if
any) specified on the face hereof.
If an Interest Rate Basis for this Note is specified on the face hereof
as the Eleventh District Cost of Funds Rate, the Eleventh District Cost of Funds
Rate will be determined as of the applicable Interest Determination Date (an
"Eleventh District Cost of Funds Rate Interest Determination Date") as the rate
equal to the monthly weighted average cost of funds for the calendar month
immediately preceding the month in which such Eleventh District Cost of Funds
Rate Interest Determination Date falls, as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 a.m., San Francisco time, on such
Eleventh District Cost of Funds Rate Interest Determination Date. If such rate
does not appear on Telerate Page 7058 on such Eleventh District Cost of Funds
Rate Interest Determination Date, the Eleventh District Cost of Funds Rate on
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced by the
Federal Home Loan Bank of San Francisco as such cost of funds for the calendar
month immediately preceding the date of such announcement. If the Federal Home
Loan Bank of San Francisco fails to announce such rate for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. Federal Funds Rate Notes will bear interest at the
rates (calculated with reference to the Federal Funds Rate and the Spread and/or
Spread Multiplier, if any, and subject to the Minimum Interest Rate and the
Maximum Interest Rate, if any) specified on the face hereof.
If an Interest Rate Basis for this Note is specified on the face hereof
as the Federal Funds Rate, the Federal Funds Rate will be determined as of the
applicable Interest Determination Date (a "Federal Funds Rate Interest
Determination Date") as the rate on such date for federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)" or, if not published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on such
Federal Funds Rate Interest Determination Date as published in Composite
Quotations under the column "Effective Rate" under the heading "Federal Funds."
If by 3:00 p.m., New York City time, on the related Calculation Date such rate
is not published in either H.15(519) or Composite Quotations, then the Federal
Funds Rate on such Federal Funds Rate Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the rates
for the last transaction in overnight United States dollar federal funds
arranged by three leading brokers of federal funds transactions in The City of
New York (which may include one or more of the Agents or their affiliates)
selected by the Calculation Agent prior to 9:00 am., New York City time, on such
Federal Funds Rate Interest Determination Date; provided, however, that if the
brokers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
12
<PAGE> 13
LIBOR. LIBOR Rate Notes will bear interest at the rates (calculated
with reference to the LIBOR Rate and the Spread and/or Spread Multiplier, if
any, and subject to the Minimum Interest Rate and the Maximum Interest Rate, if
any) specified on the face hereof.
If an Interest Rate Basis for this Note is specified on the face hereof
as LIBOR, LIBOR will be determined by the Calculation Agent in accordance with
the following provisions:
(i) With respect to an Interest Determination Date relating to a
LIBOR Note or any Floating Rate Note for which the interest is
determined with reference to LIBOR (a "LIBOR Interest Determination
Date"), LIBOR will be, as specified on the face hereof, either: (a) the
arithmetic mean of the offered rates for deposits in the Index Currency
(as defined below) having the Index Maturity designated on the face
hereof, commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, that appear on the
Reuters Screen LIBO Page specified on the face hereof as of 11:00 a.m.
London time, on such LIBOR Interest Determination Date, if at least two
such offered rates appear on such Reuters Screen LIBO Page, unless such
Reuters Screen LIBO Page by its terms provides only for a single rate,
in which case such single rate will be used ("LIBO Reuters"), or (b)
the rate for deposits in the Index Currency having the Index Maturity
designated on the face hereof, commencing on the second London Business
Day immediately following such LIBOR Interest Determination Date, that
appears on the Telerate Page 3750 as of 11:00 a.m., London time, on
such LIBOR Interest Determination Date ("LIBOR Telerate"). "Reuters
Screen LIBO Page" means the display designated as page "LIBO" on the
Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks). "Telerate Page 3750" means the
display designated as page "3750" on the Dow Jones Telerate Service (or
such other page as may replace the 3750 page on that service or such
other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered
rates of major banks for the applicable Index Currency). If neither
LIBOR Reuters nor LIBOR Telerate is specified on the face hereof, LIBOR
for the applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency, page 3750) had
been specified. If fewer than two offered rates appear on the Reuters
Screen LIBO Page, or if no such rate appears on Telerate Page 3750, as
applicable, LIBOR in respect of that LIBOR Interest Determination Date
will be determined as if the parties had specified the rate described
in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates (unless, as aforesaid, only a single rate
is required) appear on the Reuters Screen LIBO Page, as specified in
(i)(a) above, or on which no rate appears on Telerate Page 3750, as
specified in (i)(b) above, as applicable, LIBOR will be determined on
the basis of the rates at which deposits in the Index Currency having
the Index Maturity designated on the face hereof are offered at
approximately 11:00 A.M., London time, on that LIBOR Interest
Determination Date by four major banks in the London interbank market
selected by the Calculation Agent ("Reference Banks") to prime banks in
the London interbank market, commencing on the second London Business
Day immediately following that LIBOR Interest Determination Date and in
a principal amount that is representative for a single transaction in
such Index Currency in such market at such time. The Calculation Agent
will request the principal London office of each of the Reference Banks
to provide a quotation of its rate. If at least two such quotations are
provided, LIBOR in respect of that LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR in respect of that LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m., in the Principal Financial Center for the
country of the Index Currency, on the LIBOR Interest Determination Date
by three major banks in such Principal Financial Center (which may
include affiliates of the Agents) selected by the Calculation Agent for
loans in the Index Currency to leading European banks, having the Index
Maturity designated on the face hereof commencing on the second London
Business Day immediately following such LIBOR Interest Determination
Date and in a principal amount that is representative for a single
transaction in such Index Currency in such market at such time;
provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not
13
<PAGE> 14
quoting as mentioned in this sentence, LIBOR with respect to such LIBOR
Interest Determination Date will be the rate of LIBOR in effect on such
LIBOR Interest Determination Date.
"Index Currency" means the currency (including composite currencies)
specified on the face hereof as the currency for which LIBOR shall be
calculated. If no such currency is specified on the face hereof, the Index
Currency shall be U.S. dollars.
Prime Rate. Prime Rate Notes will bear interest at the rates
(calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any, and subject to the Minimum Interest Rate and the Maximum
Interest Rate, if any) specified on the face hereof.
If an Interest Rate Basis for this Note is specified on the face hereof
as the Prime Rate, the Prime Rate will be determined as of the applicable
Interest Determination Date (a "Prime Rate Interest Determination Date") as the
rate on such date as such rate is published in H.15(519) under the heading "Bank
Prime Loan." If such rate is not published prior to 3:00 p m., New York City
time, on the related Calculation Date, then the Prime Rate will be the
arithmetic mean of the rates of interest publicly announced by each bank that
appears on the Reuters Screen USPRIME1 (as defined below) as such bank's prime
rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates but more than one such rate
appear on the Reuters Screen USPRIME1 for such Prime Rate Interest Determination
Date, the Prime Rate will be the arithmetic mean of the prime rates quoted on
the basis of the actual number of days in the year divided by 360 as of the
close of business on such Prime Rate Interest Determination Date by four major
money center banks in The City of New York selected by the Calculation Agent. If
fewer than two such rates appear on the Reuters Screen USPRIME1, the Prime Rate
will be determined by the Calculation Agent on the basis of the rates furnished
in The City of New York by three substitute banks or trust companies organized
and doing business under the laws of the United States, or any State thereof, in
each case having total equity capital of at least $500 million and being subject
to supervision or examination by Federal or State authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
banks or trust companies as aforesaid are not quoting as mentioned in this
sentence, the Prime Rate determined as of such Prime Rate Interest Determination
Date will be the Prime Rate in effect on such Prime Rate Interest Determination
Date.
"Reuters Screen USPRIME1" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Treasury Rate. Treasury Rate Notes will bear interest at the rates
(calculated with reference to the Treasury Rate and the Spread and/or Spread
Multiplier, if any, and subject to the Minimum Interest Rate and the Maximum
interest Rate, if any) specified on the face hereof.
If an Interest Rate Basis for this Note is specified on the face hereof
as the Treasury Rate, the Treasury Rate will be determined as of the applicable
Interest Determination Date (a "Treasury Rate Interest Determination Date") as
the rate applicable to the auction held on such Treasury Rate Interest
Determination Date of direct obligations of the United States ("Treasury Bills")
having the specified Index Maturity designated on the face hereof as published
in H.15(519) under the heading "Treasury Bills--auction average (investment)"
or, if not so published by 3:00 p.m., New York City time, on the relevant
Calculation Date pertaining to such Treasury Rate Interest Destination Date, the
auction average rate (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of such auction of Treasury Bills having the specified Index Maturity
are not published or reported as provided above by 3:00 p.m., New York City
time, on such Calculation Date, or if no such auction is held on such Treasury
Rate Interest Determination Date, then the Treasury Rate will be calculated by
the Calculation Agent and will be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates as of
approximately 3:30 p.m., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government securities
dealers (which may include one or more of the Agents or their affiliates)
selected by the Calculation Agent for the issue of Treasury Bills with a
remaining maturity closest to the specified Index Maturity; provided, however,
that if
14
<PAGE> 15
the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate will be the Treasury Rate in
effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Rate, if any, or less than the Minimum Rate, if any,
specified on the face hereof. The interest rate on this Note will in no event be
higher than the maximum rate permitted by New York law, as the same may be
modified by United States law of general application.
Unless otherwise stated on the face hereof, each Note will mature at
the Stated Maturity of such Note. If stated on the face hereof, the Company has
the option to extend the Stated Maturity of this Note for one or more periods of
whole years from one to five (each an "Extension Period") up to but not beyond
the date (the "Final Maturity") set forth in on the face hereof.
The Company may exercise such option with respect to a Note by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the old Stated Maturity for this Note. Not later than 40 days prior to
the old Stated Maturity of such Note, the Trustee for such Note will mail or
deliver to the holder of such Note a notice (the "Extension Notice"), first
class, postage prepaid. The Extension Notice will set forth (i) the election of
the Company to extend the Stated Maturity of such Note; (ii) the new Stated
Maturity; (iii) in the case of a Floating Rate Note, the Spread and/or Spread
Multiplier applicable to the Extension Period; and (iv) the provisions, if any,
for redemption during the Extension Period, including the date or dates on which
or the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by such
Trustee of an Extension Notice to the holder of a Note, the Stated Maturity of
such Note shall be extended automatically, and, except as modified by the
Extension Notice and as described in the next paragraph, such Note will have the
same terms as prior to the mailing or delivering of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the old
Stated Maturity of such Note (or, if such day is not a Business Day, on the
immediately succeeding Business Day), the Company may, at its option, revoke the
Spread and/or Spread Multiplier provided for in the Extension Notice for such
Note and establish a higher Spread and/or Spread Multiplier (in the case of a
Floating Rate Note, or a lower Spread and/or Spread Multiplier in the case of an
Inverse Floating Rate Note) for the Extension Period, by causing the Trustee for
such Note to mail notice of such new Spread and/or Spread Multiplier first
class, postage prepaid, to the holder of this Note. Such notice will be
irrevocable. All Notes with respect to which the Stated Maturity is extended
will bear such Spread Multiplier (in the case of Floating Rate Notes) for the
Extension Period, whether or not tendered for repayment.
If the Company extends the Stated Maturity of this Note, the holder of
this Note will have the option to elect repayment of such Note by the Company on
the old Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order for this Note to be repaid on the old
Stated Maturity once the Company has extended the Stated Maturity hereof, the
holder thereof must follow the procedures applicable to redemption and repayment
for optional repayment, except that (i) the period for delivery of such Note or
notification to the Trustee for such Note Will be at least 25 but not more than
35 days prior to the old Stated Maturity and (ii) a holder who has tendered a
Note for repayment pursuant to an Extension Notice may, by written notice to the
Trustee, revoke any such tender for repayment until the close of business on the
tenth day before the old Stated Maturity.
All percentages resulting from any calculation on this Note shall be
rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point and all U.S. dollar amounts used in or resulting from such
calculation on this Note shall be rounded to the nearest cent (with one-half
cent being rounded upwards) and, in the case of a Specified Currency other than
U.S. dollars, to the nearest unit (with one-half unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture. The
15
<PAGE> 16
Indenture contains provisions setting forth certain conditions to the
institution of proceedings by Holders of Notes with respect to the Indenture or
for any remedy under the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority of the aggregate principal amount of all Debt Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of not less than a majority of the aggregate principal
amount of the outstanding Debt Securities, on behalf of the Holders of all such
Debt Securities, to waive compliance by the Company with certain provisions of
the Indenture. Furthermore, provisions in the Indenture permit the Holders of
not less than a majority of the aggregate principal amount of the outstanding
Debt Securities, in certain instances, to waive, on behalf of all of the Holders
of Debt Securities of such series, certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and other Notes issued upon the registration of transfer hereof or in
exchange heretofore or in lieu hereof, whether or not notation of such consent
or waiver is made upon the Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees. As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the Holder
hereof surrendering the same. No service charge shall be made for any such
registration of transfer or exchange, but the company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
16
<PAGE> 17
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Note, shall be construed as though they were written out in full according to
applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - __________ Custodian _________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as ______________________________
tenants in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------
- -------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- -------------------------------------------------------------------------------
the within Note and all rights thereunder hereby irrevocably constituting and
appointing
- -------------------------------------------------------------------------------
To transfer said Note on the books of the Trustee, with full power of
substitution in the premises.
Date:
------------------------
----------------------------------------
----------------------------------------
Notice: The signature(s) on this
assignment must correspond with the
name(s) as written upon the face of the
within Note in every particular, without
alteration or enlargement or any change
whatsoever.
17
<PAGE> 18
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at ___________
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, not more than 60 nor less than 30 calendar days prior to the
Optional Repayment Date, this Note with this "Option to Elect Repayment" form
duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than U.S. dollars, the minimum Authorized
Denomination specified on the face hereof)) which the Holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $ ____________
----------------------------------------
Notice: The signature(s) on this Option
Date: ______________________ to Elect Repayment must correspond with
the name(s) as written upon the face of
the within Note in every particular,
without alteration or enlargement or any
change whatsoever.
18
<PAGE> 1
EXHIBIT 4.6
STAR BANC CORPORATION
---------------------
CERTIFICATE OF DESIGNATIONS
Pursuant to Section ___ of the
General Corporation Law of the State of Ohio
--------------------------------------------
CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES __
(Without Par Value)
---------------------------------------------------
STAR BANC CORPORATION, a corporation organized and existing under
the laws of the State of Ohio (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of Directors of the
Corporation (the "Board") and by the Executive Committee of the Board (the
"Executive Committee"), pursuant to authority conferred upon the Board by the
provisions of the Restated Articles of Incorporation of the Corporation,
which authorizes the issuance of up to [__________] shares of preferred stock,
without par value (the "Preferred Stock") and pursuant to authority conferred
upon the Executive Committee of the Board in accordance with Section
1701.70(B)(1) of the Ohio Revised Code and by the resolutions of the Board set
forth herein, at a meeting of the Board duly held on __________, 199_, and at a
meeting of the Executive Committee duly held on __________ __, ______:
1. The Board on __________, 199_, adopted the following resolutions
delegating certain powers to the Executive Committee and fixing the voting
rights of certain series of the Preferred Stock:
"RESOLVED that the Corporation is authorized to issue and sell, at
any time, or from time to time, securities in the form or forms of one or more
of the following (all of which are referred to herein as "Securities"): (a)
Securities in the aggregate amount of [_______________] issuable in the form of
MediumTerm Notes, as heretofore authorized; and (b)(i) one or more series of
Preferred Stock and other related securities, including without limitation
depositary instruments evidencing interests in Preferred Stock ("Depositary
Shares"); (ii) unsecured debentures, notes or other evidences of indebtedness
which, when issued, may rank on a parity with or be subordinated to all other
unsecured and unsubordinated indebtedness of the Corporation (collectively, the
"Debt Securities", which
<PAGE> 2
term shall be deemed to include up to $[____________] of Senior Securities
(exclusive of the Medium-Term Notes) currently registered with the SEC); (iii)
Securities directly or indirectly convertible into, or exchangeable for, and
warrants (the "Stock Warrants") for the purchase of, Preferred Stock, Depositary
Shares, common stock of the Corporation (the "Common Stock") or other capital
securities of the Corporation (the Securities described in clauses (i), (iii)
and (vi) hereof, together with any Securities related thereto, are referred to
collectively herein as "Equity Related Securities"); (iv) warrants for the
purchase of Debt Securities ("Debt Warrants") (the Stock Warrants and Debt
Warrants being collectively referred to herein as "Securities Warrants"); (v)
shares of Common Stock issuable upon the conversion of or in exchange for
Preferred Stock or Debt Securities, or upon the exercise of Stock Warrants; and
(vi) other capital securities of the Corporation issuable in exchange for or
upon conversion of Preferred Stock or Debt Securities, all of such Securities
referred to in this clause (b) to be issuable in an aggregate dollar amount not
to exceed $[____________] (the "Issuance Limit"), which Issuance Limit shall be
determined (1) with respect to the issuance of Debt Securities, whether or not
convertible into or exchangeable for other Securities, by reference to the
original dollar offering price thereof upon issuance (or, if denominated in any
other currency or currencies, by reference to the approximate equivalent value
thereof in U.S. dollars, as determined by an Authorized Officer hereinafter
referred to); (2) with respect to the issuance of Preferred Stock or Depositary
Shares, whether or not convertible into or exchangeable for other Securities, by
reference to the original offering price thereof upon issuance; and (3) with
respect to the issuance of Securities Warrants, by reference to the original
offering price thereof upon issuance plus the aggregate exercise price (if any)
of such Securities Warrants."
"RESOLVED that the Executive Committee, exclusively, shall have and
may exercise, subject to the Issuance Limit and these resolutions, the full
powers of the Board, on behalf of the Corporation, to authorize the issuance of
Equity Related Securities, to establish all terms and conditions with respect
thereto, and to take any and all actions the Securities Committee deems
necessary or appropriate in connection therewith; provided, however, that any
shares of Preferred Stock thus authorized for issuance shall have the voting
rights set forth in Appendix A to these resolutions."
"APPENDIX A - VOTING RIGHTS
RESOLVED that no series of the Shares, except as hereinafter set
forth in this resolution or as otherwise from
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<PAGE> 3
time to time required by law, shall have voting rights. Whenever, at any time or
times, dividends payable on any series of the Shares shall be in arrears for
such number of dividend periods which shall in the aggregate contain not less
than 540 days, the holders of the outstanding Shares of such series shall have
the exclusive right, voting separately as a class with holders of shares of any
one or more other series of Preferred Stock ranking on a parity with the Shares
either as to dividends, or on the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been conferred
and are exercisable, to elect two directors of the Corporation at the
Corporation's next annual meeting of stockholders and at each subsequent annual
meeting of stockholders. At elections for such directors, each holder of the
Shares of such series shall be entitled to one vote for each share held (the
holders of shares of any other series of Preferred Stock ranking on such a
parity being entitled to such number of votes, if any, for each share of stock
held as may be granted to them). Upon the vesting of such right of such holders,
the maximum authorized number of members of the Board shall automatically be
increased by two and the two vacancies so created shall be filled by vote of the
holders of such outstanding Shares of such series (either alone or together with
the holders of shares of any one or more other series of Preferred Stock ranking
on such a parity) as hereinafter set forth. The right of such holders of such
Shares of such series, voting separately as a class, to elect (together with the
holders of shares of any one or more other series of Preferred Stock ranking on
such a parity) members of the Board as aforesaid shall continue until such time
as all dividends accumulated on such Shares shall have been paid in full, at
which time such right shall terminate, except as herein or by law expressly
provided, subject to revesting in the event of each and every subsequent default
of the character above mentioned.
Upon any termination of the right of the holders of the Shares of
any series as a class to vote for directors as herein provided, the term of
office of all directors then in office elected by such holders voting as a class
shall terminate immediately. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office or otherwise, the remaining
director elected by such holders voting as a class may choose a successor who
shall hold office for the unexpired term in respect of which such vacancy
occurred. Whenever the term of office of the directors elected by such holders
voting as a class shall end and the special voting powers vested in such holders
as provided in this resolution shall have expired, the number of directors shall
be
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<PAGE> 4
such number as may be provided for in the By-Laws of the Corporation
irrespective of any increase made pursuant to the provisions of this resolution.
So long as any Shares remain outstanding, the consent of the holders
of at least two-thirds of the Shares of each series outstanding at the time
(voting separately as a class together with all other series of Preferred Stock
ranking on a parity with such series either as to dividends or the distribution
of assets upon liquidation, dissolution or winding up and upon which like voting
rights have been conferred and are exercisable) given in person or by proxy,
either in writing or at any special or annual meeting called for the purpose,
shall be necessary to permit, effect or validate any one or more of the
following:
(a) the authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock ranking prior
to the Shares with respect to payment of dividends or the distribution of
assets on liquidation, dissolution or winding up, or
(b) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Restated
Certificate of Incorporation or of the resolutions set forth in a
Certificate of Designation for any series of the Shares designating such
series of the Shares and the preferences and relative, participating,
optional and other special rights and qualifications, limitations and
restrictions thereof which would materially and adversely affect any
right, preference, privilege or voting power of the Shares or of the
holders thereof; provided, however, that any increase in the amount of
authorized Preferred Stock or the creation and issuance of other series of
Preferred Stock, or any increase in the amount of authorized Shares of any
series, in each case ranking on a parity with or junior to the Shares with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting
powers.
The foregoing voting provisions shall not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding Shares shall have been redeemed or
sufficient funds shall have been deposited in trust to effect such redemption."
-4-
<PAGE> 5
2. The Executive Committee on __________ ________, adopted the
following resolution pursuant to the authority conferred upon the Securities
Committee by the resolutions of the Board set forth in paragraph 1 above adopted
pursuant to Section 1701.70(B)(1) of the Ohio Revised Code:
"RESOLVED that the issuance of a series of Preferred Stock, without
par value, of the Corporation is hereby authorized and the designation,
preferences and relative, participating, optional, and other special rights, and
qualifications, limitations and restrictions thereof, in addition to those set
forth in the Restated Articles of Incorporation of the Corporation, as
amended, and those established by the resolutions of the Board adopted on
______________, 1997, are hereby fixed as follows:
CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES __
1. Designation and Number of Shares. (a) The designation of the
series of preferred stock, without par value, provided for herein shall be
Cumulative [Convertible] Preferred Stock, Series (hereinafter referred to as the
Series __ Preferred Stock) and the number of authorized shares constituting the
Series __ Preferred Stock is ___________. The number of authorized shares of
Series __ Preferred Stock may be reduced by further resolution duly adopted by
the Board or the Executive Committee and by the filing of a certificate
pursuant to the provisions of the General Corporation Law of the State of
Delaware stating that such reduction has been so authorized, but the number of
authorized shares of Series ___ Preferred Stock shall not be increased.
(b) All shares of Series ___ Preferred Stock purchased, redeemed, or
converted by the Corporation shall be retired and cancelled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series, and may thereafter be issued, but not as
shares of Series ___ Preferred Stock.
2. Dividends. (a) Holders of shares of Series ___ Preferred Stock
will be entitled to receive, when and as declared by the Board or a duly
authorized committee thereof, out of assets of the Corporation legally available
for payment, an annual cash dividend of $_____ per share, payable quarterly on
_______, _______, _______, and _______ of each year, commencing _______, __.
Dividends on shares of the Series ___ Preferred Stock will be cumulative from
the date of initial issuance of such shares of Series __ Preferred Stock.
Dividends
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<PAGE> 6
will be payable, in arrears, to holders of record as they appear on the stock
books of the Corporation on such record dates, not more than 30 days nor less
than 15 days preceding the payment dates thereof, as shall be fixed by the Board
or a duly authorized committee thereof. The amount of dividends payable per
share for each dividend period shall be computed by dividing by four the
$________ annual rate. The amount of dividends payable for the initial dividend
period or any period shorter than a full dividend period shall be calculated on
the basis of a 360-day year of twelve 30-day months.
(b) (i) No full dividends shall be declared or paid or set apart for
payment on any stock of the Corporation ranking, as to dividends, on a parity
with or junior to Series __ Preferred Stock for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such payment
on shares of Series __ Preferred Stock for all dividend payment periods
terminating on or prior to the date of payment of such full cumulative
dividends. When dividends are not paid in full, as aforesaid, upon the shares of
Series __ Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with Series __ Preferred Stock, all dividends declared
upon shares of Series ___ Preferred Stock and any other series of preferred
stock ranking on a parity as to dividends with Series ___ Preferred Stock shall
be declared pro rata so that the amount of dividends declared per share on
Series __ Preferred Stock and such other series of preferred stock shall in all
cases bear to each other the same ratio that accrued dividends per share on the
shares of Series __ Preferred Stock and such other series of preferred stock
bear to each other. Holders of shares of Series __ Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property, or stock, in excess
of full cumulative dividends, as herein provided, on Series __ Preferred Stock.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on Series __ Preferred Stock which may be in
arrears.
(ii) So long as any shares of Series __ Preferred Stock are
outstanding, no dividend (other than dividends or distributions paid in shares
of, or options, warrants, or rights to subscribe for or purchase shares of, the
common stock, par value $5.00 per share, of the Corporation (the `Common Stock')
or any other stock ranking junior to Series __ Preferred Stock as to dividends
and upon liquidation and other than as provided in paragraph (b)(i) of this
Section 2, shall be declared or paid or set aside for payment or other
distribution declared or made upon the Common Stock or any other capital stock
of the Corporation ranking junior to or on a parity with Series __ Preferred
Stock as to dividends or upon liquidation, nor shall the Common Stock or any
other capital stock of the Corporation ranking junior to or on a parity
-6-
<PAGE> 7
with Series __ Preferred Stock as to dividends or upon liquidation be redeemed,
purchased, or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for stock
of the Corporation ranking junior to Series __ Preferred Stock as to dividends
and upon liquidation, unless, in each case, the full cumulative dividends on all
outstanding shares of Series __ Preferred Stock shall have been paid or declared
and set aside for payment of the then-current dividend payment period and all
past dividend payment periods.
3. Optional Redemption. (a) The shares of Series __ Preferred Stock
may be redeemed at the option of the Corporation, as a whole, or from time to
time in part, at any time, upon not less than 30 nor more than 60 days' prior
notice mailed to the holders of the shares to be redeemed at their addresses as
shown on the stock books of the Corporation; provided, however, that shares of
Series __ Preferred Stock shall not be redeemable prior to _________ ___,
_____. Subject to the foregoing, shares of Series __ Preferred Stock are
redeemable at the following redemption prices per share (expressed as a
percentage of the liquidation preference thereof), if redeemed during the
12-month period beginning _____________ in the year indicated:
Year Price Year Price
% %
and 100% if redeemed on or after __________, ___, in each case together with an
amount equal to all dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for redemption.
(b) If fewer than all of the outstanding shares of Series __
Preferred Stock are to be redeemed, the number of shares to be redeemed shall be
determined by the Board and such shares shall be redeemed pro rata from all
holders of shares of Series __ Preferred Stock in proportion to the number of
such shares held by such holders (with adjustments to avoid redemption of
fractional shares).
(c) If the Corporation shall redeem shares of Series __ Preferred
Stock, notice of such redemption shall be mailed or caused to be mailed by the
Corporation by first class mail, postage prepaid, to each holder of the shares
to be redeemed,
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<PAGE> 8
at such holder's address as the same appears on the stock books of the
Corporation. Such notice shall be so mailed not less than 30 nor more than 60
days prior to the date fixed for redemption. Each such notice shall state (i)
the redemption date, (ii) the number of shares of Series __ Preferred Stock to
be redeemed, (iii) the redemption price, (iv) the place or places where
certificates for such shares of Series __ Preferred Stock are to be surrendered
for payment of the redemption price, [and] (v) that dividends on the shares to
be redeemed will cease to accrue on such redemption date[, and (vi) the date
upon which the holder's conversion rights (as hereinafter defined) as to such
shares terminate]. If fewer than all shares held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the number of
shares to be redeemed from such holder.
(d) Notwithstanding the foregoing provisions of subsection (a) of
this Section 3, if any dividends on shares of Series __ Preferred Stock are in
arrears, no shares of Series __ Preferred Stock shall be redeemed unless all
outstanding shares of Series __ Preferred Stock are simultaneously redeemed, and
the Corporation shall not purchase or otherwise acquire any shares of Series __
Preferred Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Series __ Preferred Stock pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of Series __ Preferred Stock.
(e) If notice of redemption has been given under subsection (c) of
this Section 3, from and after the redemption date for the shares of Series __
Preferred Stock called for redemption (unless default shall be made by the
Corporation in providing money for the payment of the redemption price of the
shares so called for redemption), dividends on the shares of Series __ Preferred
Stock so called for redemption shall cease to accrue and such shares shall no
longer be deemed to be outstanding, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive the redemption
price) shall cease. Upon surrender in accordance with such notice of the
certificates for any shares so redeemed (properly endorsed or as signed for
transfer, if the Board or a duly authorized committee thereof shall so require
and the notice shall so state), such shares shall be redeemed by the Corporation
at the redemption price aforesaid. If fewer than all of the shares represented
by any such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
[4. Conversion. (a) Subject to and upon compliance with the
provisions of this Section 4, each holder of Series __
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<PAGE> 9
Preferred Stock shall have the right, at each such holder's option, at any time,
to convert any or all of the shares of Series __ Preferred Stock held by each
such holder into the number of fully paid and nonassessable shares of Common
Stock (calculated as to each conversion, for the purposes of determining the
amount of any cash payments provided for under subsection (c) of this Section 4,
to the nearest 1/100 of a share of Common Stock, with 1/200 of a share of Common
Stock being rounded upward) obtained by dividing the liquidation preference of a
share of Series __ Preferred Stock by the Conversion Price (as defined below)
and multiplying such resulting number by the number of shares of Series __
Preferred Stock to be converted, and by surrender of such shares of Series __
Preferred Stock so to be converted, such surrender to be made in the manner
provided in subsection (b) of this Section 4; provided, however, that the right
to convert shares called for redemption pursuant to Section 3 shall terminate at
the close of business on the date fixed for such redemption unless the
Corporation shall default in making payment of the amount payable upon such
redemption.
The term `Applicable Price' means (i) in the event of a Fundamental
Change (as hereinafter defined) in which the holders of the Common Stock receive
only cash, the amount of cash received by a holder of one share of Common Stock
and (ii) in the event of any other Fundamental Change, the average of the
reported last sale prices for one share of the Common Stock (determined as set
forth in paragraph (d)(v) of this Section 4) during the ten Trading Days (as
defined in paragraph (d)(v) of this Section 4) prior to the record date for the
determination of the holders of Common Stock entitled to receive cash,
securities, property, or other assets in connection with such Fundamental
Change, or, if there is no such record date, prior to the date upon which the
holders of Common Stock shall have the right to receive such cash, securities,
property, or other assets.
For purposes of this Section 4, the term `Common Stock' shall mean
the Common Stock of the Corporation as the same exists at the date of this
Certificate of Designations or as such stock may be constituted from time to
time, except that for purposes of subsection (e) of this Section 4, the term
`Common Stock' shall also mean and include stock of the Corporation of any
class, whether now or hereafter authorized, which shall have the right to
participate in the distribution of either earnings or assets of the Corporation
without limit as to amount or percentage.
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<PAGE> 10
The term `Common Stock Fundamental Change' means any Fundamental
Change in which more than 50% (by value as determined in good faith by the
Board) of the consideration received by holders of Common Stock consists of
common stock that, for the ten Trading Days (as defined in paragraph (d)(v) of
this Section 4) prior to such Fundamental Change, has been admitted for listing
on a national securities exchange or quoted on the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotations System.
The term `Conversion Price' shall mean $___, as adjusted in
accordance with the provisions of this Section 4.
The term `Fundamental Change' means the occurrence of any
transaction or event in connection with which all or substantially all the
Common Stock shall be exchanged for, converted into, or acquired for, or shall
constitute solely the right to receive, cash, securities, property, or other
assets (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise). In the case of a plan involving more than one such transaction or
event, for purposes of adjustment of the Conversion Price, such Fundamental
Change shall be deemed to have occurred when substantially all the Common Stock
shall have been exchanged for, converted into, or acquired for, or shall
constitute solely the right to receive, such cash, securities, property, or
other assets, but the adjustment shall be based upon the consideration that the
holders of Common Stock received in the transaction or event as a result of
which more than 50% of the Common Stock shall have been exchanged for, converted
into, or acquired for, or shall constitute solely the right to receive, such
cash, securities, property, or other assets.
The term `Non-Stock Fundamental Change' means any Fundamental Change
other than a Common Stock Fundamental Change.
The term `Purchaser Stock Price' means, with respect to any Common
Stock Fundamental Change, the average of the reported last sale prices for one
share of the common stock received by holders of Common Stock in such Common
Stock Fundamental Change (determined as set forth in paragraph (d)(v) of this
Section 4 as if such paragraph were applicable to such common stock) during the
ten Trading Days (as defined in paragraph (d)(v) of this Section 4) prior to the
record date for the determination of the holders of Common Stock entitled to
receive such common stock or, if there is no such record date, prior to the date
upon which the holders of Common Stock shall have the right to receive such
common stock.
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<PAGE> 11
The term `Reference Market Price' shall initially mean $___ and, in
the event of any adjustment to the Conversion Price pursuant to paragraphs
(d)(i), (d)(ii), (d) (iii), or (d)(iv) of this Section 4, the Reference Market
Price shall also be adjusted so that the ratio of the Reference Market Price to
the Conversion Price after giving effect to any such adjustment shall always be
the same as the ratio of $___ to the Conversion Price set forth in this
Certificate of Designations (without regard to any adjustment thereto).
(b) In order to exercise the conversion privilege, the holder of
each share of Series __ Preferred Stock to be converted shall surrender the
certificate representing such share at the office of the conversion agent for
the Series __ Preferred Stock in [South St. Paul, Minnesota], appointed for such
purpose by the Corporation, with the Notice of Election to Convert on the back
of such certificate completed and signed. Unless the shares issuable on
conversion are to be issued in the same name as the name in which such share of
Series __ Preferred Stock is registered, each share surrendered for conversion
shall be accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or the holder's duly authorized
attorney, and by an amount sufficient to pay any transfer or similar tax.
The holders of shares of Series __ Preferred Stock at the close of
business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date between such record date and the dividend
payment date shall not be entitled to receive such dividend on such dividend
payment date) on the corresponding dividend payment date, notwithstanding the
conversion thereof or the Corporation's default in payment of the dividend due
on such dividend payment date. However, shares of Series __ Preferred Stock
surrendered for conversion during the period between the close of business on
any dividend payment record date and the opening of business on the
corresponding dividend payment date (except shares called for redemption on a
redemption date during such period) must be accompanied by payment of an amount
equal to the dividend payable on such shares on such dividend payment date. A
holder of shares of Series __ Preferred Stock on a dividend payment record date
who (or whose transferee) tenders any of such shares for conversion into shares
of Common Stock on a dividend payment date will receive the dividend payable by
the Corporation on such shares of Series __ Preferred Stock on such date, and
the converting holder need not include payment in the amount of such dividend
upon surrender of shares of Series __ Preferred Stock for conversion. Except as
provided above, the Corporation shall make no payment or allowance
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<PAGE> 12
for unpaid dividends, whether or not in arrears, on converted shares or for
dividends on the shares of Common Stock issued upon such conversion.
As promptly as practicable after the surrender of the certificates
for shares of Series __ Preferred Stock as aforesaid, the Corporation shall
issue and shall deliver at the office of the conversion agent to such holder, or
on such holder's written order, a certificate or certificates for the number of
full shares of Common Stock issuable upon the conversion of such shares in
accordance with the provisions of this Section 4, and any fractional interest in
respect of a share of Common Stock arising upon such conversion shall be settled
as provided in subsection (c) of this Section 4.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for shares
of Series __ Preferred Stock shall have been surrendered and such notice (and,
if applicable, payment of an amount equal to the dividend payable on such
shares) received by the Corporation as aforesaid, and the person or persons in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have become the holder
or holders of record of the shares represented thereby at such time on such
date, and such conversion shall be at the Conversion Price in effect at such
time on such date, unless the stock transfer books of the Corporation shall be
closed on such date, in which event such person or persons shall be deemed to
have become such holder or holders of record at the close of business on the
next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such shares shall have been surrendered and such notice (and, if applicable,
payment) received by the Corporation. All shares of Common Stock delivered upon
conversion of the Series __ Preferred Stock will upon delivery be duly and
validly issued and fully paid and nonassessable, free of all liens and charges
and not subject to any preemptive rights.
(c) In connection with the conversion of any shares of Series __
Preferred Stock, no fractional shares or scrip representing fractions of shares
of Common Stock shall be issued upon conversion of Series __ Preferred Stock.
Instead of any fractional interest in a share of Common Stock which would
otherwise be deliverable upon the conversion of a share of Series __ Preferred
Stock or a fraction thereof, the Corporation shall pay to the holder of such
share of Series __ Preferred Stock or fraction thereof an amount in cash
(computed to the nearest cent, with one-half cent being rounded upward) equal to
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<PAGE> 13
the reported last sale price (as defined in paragraph (d)(v) of this Section 4)
of the Common Stock on the Trading Day (as defined in paragraph (d)(v) of this
Section 4) next preceding the day of conversion multiplied by the fraction of a
share of Common Stock represented by such fractional interest. If more than one
share of Series __ Preferred Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate liquidation
preference of the shares of Series __ Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Corporation shall (x) pay a dividend or make a
distribution on the Common Stock in shares of Common Stock, (y) subdivide the
outstanding Common Stock into a greater number of shares, or (z) combine the
outstanding Common Stock into a smaller number of shares, the Conversion Price
shall be adjusted so that the holder of any share of Series __ Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the number of
shares of Common Stock of the Corporation which such holder would have owned or
have been entitled to receive after the happening of any of the events described
above had such share been converted immediately prior to the record date in the
case of a dividend or the effective date in the case of subdivision or
combination. An adjustment made pursuant to this paragraph (i) shall become
effective immediately after the record date in the case of a dividend, except as
provided in paragraph (viii) below, and shall become effective immediately after
the effective date in the case of a subdivision or combination.
(ii) In case the Corporation shall issue rights or warrants to all
holders of the Common Stock entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per share
of Common Stock (as defined for purposes of this paragraph (ii) in paragraph (v)
below), at the record date for the determination of stockholders entitled to
receive such rights or warrants, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the date of issuance of such rights or warrants by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares of Common Stock
which the aggregate offering price of the total
-13-
<PAGE> 14
number of shares of Common Stock so offered would purchase at such current
market price, and the denominator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants plus
the number of additional shares of Common Stock receivable upon exercise of such
rights or warrants. Such adjustment shall be made successively whenever any such
rights or warrants are issued, and shall become effective immediately, except as
provided in paragraph (viii) below, after such record date. In determining
whether any rights or warrants entitle the holders of the Series __ Preferred
Stock to subscribe for or purchase shares of Common Stock at less than such
current market price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Corporation for such rights or warrants plus the exercise price
thereof, the value of such consideration or exercise price, as the case may be,
if other than cash, to be determined by the Board.
(iii) In case the Corporation shall distribute to all holders of
Common Stock any shares of capital stock of the Corporation (other than Common
Stock) or evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Corporation) or rights or
warrants to subscribe for or purchase any of its securities (excluding those
rights or warrants referred to in paragraph (ii) above) (any of the foregoing
being hereinafter in this paragraph (iii) called the `Securities'), then, in
each such case, unless the Corporation elects to reserve such Securities for
distribution to the holders of the Series __ Preferred Stock upon the conversion
of the shares of Series __ Preferred Stock so that any such holder converting
shares of Series __ Preferred Stock will receive upon such conversion, in
addition to the shares of the Common Stock to which such holder is entitled, the
amount and kind of such Securities which such holder would have received if such
holder had, immediately prior to the record date for the distribution of the
Securities, converted its shares of Series __ Preferred Stock into Common Stock,
the Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the date of such distribution by a fraction, the numerator of which shall be the
current market price per share (as defined for purposes of this paragraph (iii)
in paragraph (v) below) of the Common Stock on the record date mentioned above
less the then fair market value (as determined by the Board, whose determination
shall, if made in good faith, be conclusive) of the portion of the Securities so
distributed applicable to one share of Common Stock and the denominator of which
shall be the current market price per (as defined in paragraph (v) below) of the
Common
-14-
<PAGE> 15
Stock; provided, however, that in the event the then fair market value (as so
determined) of the portion of the Securities so distributed applicable to one
share of Common Stock is equal to or greater than the current market price per
share (as defined in paragraph (v) below) of the Common Stock on the record date
mentioned above, in lieu of the foregoing adjustment, adequate provision shall
be made so that each holder of shares of Series __ Preferred Stock shall have
the right to receive the amount and kind of Securities such holder would have
received had such holder converted each such share of Series __ Preferred Stock
immediately prior to the record date for the distribution of the Securities.
Such adjustment shall become effective immediately, except as provided in
paragraph (viii) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(iv) If, pursuant to paragraph (ii) or (iii) above, the Conversion
Price at which a share of Series __ Preferred Stock is convertible shall have
been adjusted because the Corporation has declared a dividend or made a
distribution on the outstanding shares of Common Stock in the form of any right
or warrant to purchase securities of the Corporation, or the Corporation has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Conversion Price shall forthwith
be adjusted to equal the Conversion Price that would have applied had such right
or warrant never been declared, distributed, or issued.
(v) For the purpose of any computation under paragraph (ii) above,
the current market price per share of Common Stock on any date shall be deemed
to be the average of the reported last sale prices for the 30 consecutive
Trading Days (as defined below) commencing 45 Trading Days before the date in
question. For the purpose of any computation under paragraph (iii) above, the
current market price per share of Common Stock on any date shall be deemed to be
the average of the reported last sales prices for the ten consecutive Trading
Days before the date in question. The reported last sale price for each day
(whether for purposes of paragraph (ii) or paragraph (iii)) shall be the
reported last sale price, regular way, or, in case no sale takes place on such
day, the average of the reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange Composite Tape or, if the
Common Stock is not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotations System
(`NASDAQ') or, if the Common Stock
-15-
<PAGE> 16
is not quoted on such National Market System, the average of the closing bid and
asked prices on such day in the over-the-counter market as reported by NASDAQ
or, if bid and asked prices for the Common Stock on each such day shall not have
been reported through NASDAQ, the average of the bid and asked prices for such
day as furnished by any New York Stock Exchange member firm regularly making a
market in the Common Stock selected for such purpose by the Board or a committee
thereof or, if no such quotations are available, the fair market value of the
Common Stock as determined by a New York Stock Exchange member firm regularly
making a market in the Common Stock selected for such purpose by the Board or a
committee thereof. As used herein, the term `Trading Day' with respect to Common
Stock means (x) if the Common Stock is listed or admitted for trading on the New
York Stock Exchange or another national securities exchange, a day on which the
New York Stock Exchange or such other national securities exchange is open for
business or (y) if the Common Stock is quoted on the National Market System of
NASDAQ, a day on which trades may be made on such National Market System or (z)
otherwise, any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.
(vi) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this paragraph
(vi) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment; and provided further that adjustment shall be
required and made in accordance with the provisions of this Section 4 (other
than this paragraph (vi)) not later than such time as may be required in order
to preserve the tax free nature of a distribution to the holders of Common
Stock. All calculations under this Section 4 shall be made to the nearest cent
or to the nearest 1/100 of a share, as the case may be, with one-half cent and
1/200 of a share, respectively, being rounded upward. Anything in this
subsection (d) to the contrary notwithstanding, the Corporation shall be
entitled to make such reductions in the Conversion Price, in addition to those
required by this subsection (d), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares, distribution
of rights or warrants to purchase stock or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Corporation to its
stockholders shall not be taxable.
(vii) Whenever the Conversion Price is adjusted as herein provided,
the Corporation shall promptly file with any conversion agent an officers'
certificate, signed by the
-16-
<PAGE> 17
Chairman, the President or any Executive Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary, or an Assistant Secretary of the
Corporation, setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such adjustment.
Promptly after delivery of such certificate, the Corporation shall prepare a
notice of such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the date on which such adjustment becomes effective and
shall mail such notice of such adjustment of the Conversion Price to the holders
of shares of Series __ Preferred Stock at their addresses as shown on the stock
books of the Corporation.
(viii) In any case in which this subsection (d) provides that an
adjustment shall become effective immediately after a record date for an event,
the Corporation may defer until the occurrence of such event (y) issuing to the
holder of any share of Series __ Preferred Stock converted after such record
date and before the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the adjustment required by such
event over and above the Common Stock issuable upon such conversion before
giving effect to such adjustment and (z) paying to such holder any amount in
cash in lieu of any fractional share of Common Stock pursuant to subsection (c)
of this Section 4.
(e) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of retained earnings);
or
(ii) the Corporation shall authorize the granting to the
holders of Common Stock of rights or warrants to subscribe for or purchase any
shares of any class of capital stock of the Corporation or any other rights or
warrants; or
(iii) there shall be any reclassification or change of the
Common Stock (other than a subdivision or combination of the outstanding Common
Stock and other than a change in the par value, or from par value to no par
value, or from no par value to par value), or any consolidation, merger, or
statutory share exchange to which the Corporation is a party and for which
approval of any stockholders of the Corporation is required, or any sale or
transfer of all or substantially all the assets of the Corporation as an
entirety or any Fundamental Change; or
-17-
<PAGE> 18
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation,
then the Corporation shall cause to be filed with the conversion agent and shall
cause to be mailed to the holders of shares of the Series __ Preferred Stock at
their addresses as shown on the stock books of the Corporation, at least 15 days
prior to the applicable date hereinafter specified, a notice stating (y) the
date on which a record is to be taken for the purpose of such dividend,
distribution, or granting of rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, or rights or warrants are to be determined, or
(z) the date on which such reclassification, change, consolidation, merger,
statutory share exchange sale, transfer, Fundamental Change, dissolution,
liquidation, or winding up is expected to become effective and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger, statutory
share exchange, transfer, Fundamental Change, dissolution, liquidation, or
winding up. Failure to give such notice or any defect therein shall not affect
the legality or validity of the proceedings described in subsection (b) of this
Section 4 or in paragraph (d)(i), (d)(ii), (d)(iii), or (d)(iv) of this Section
4.
(f) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock or its issued shares of Common
Stock held in its treasury, or both, for the purpose of effecting conversions of
the Series __ Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of Series __ Preferred
Stock not theretofore converted. For purposes of this subsection (f), the number
of shares of Common Stock which shall be deliverable upon the conversion of all
outstanding shares of Series __ Preferred Stock shall be computed as if at the
time of computation all such outstanding shares were held by a single holder.
Before taking any action which would cause any adjustment reducing
the Conversion Price below the then par value (if any) of the shares of Common
Stock deliverable upon conversion of the Series __ Preferred Stock, the
Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of Common Stock at such adjusted
Conversion Price.
-18-
<PAGE> 19
The Corporation will endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Series __ Preferred Stock prior
to such delivery upon each national securities exchange, if any, upon which the
outstanding Common Stock is listed at the time of such delivery.
Prior to the delivery of any securities which the Corporation shall
be obligated to deliver upon conversion of the Series __ Preferred Stock, the
Corporation will endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(g) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on conversions of the Series __ Preferred Stock pursuant
hereto; provided, however, that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the holder of
the Series __ Preferred Stock to be converted and no such issue or delivery
shall be made unless and until the person requesting such issue or delivery has
paid to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(h) Notwithstanding any other provision herein to the contrary, if
any of the following events occur, namely (w) any reclassification or change of
outstanding shares of Common Stock (other than change in par value, or from par
value to no par value, or from no par value to par value, or as a result of a
subdivision or combination of the Common Stock), (x) any consolidation, merger,
or combination of the Corporation with or into another corporation as a result
of which holders of Common Stock shall be entitled to receive stock, securities,
or other property or assets (including cash) with respect to or in exchange for
such Common Stock, (y) any sale or conveyance of the properties and assets of
the Corporation as, or substantially as, an entirety to any other entity as a
result of which holders of Common Stock shall be entitled to receive stock,
securities, or other property or assets (including cash) with respect to or in
exchange for such Common Stock, or (z) any Fundamental Change (including any
event referred to in the foregoing clauses (w), (x), or (y) that constitutes a
Fundamental Change), then appropriate provision shall be made so that the holder
of each share of Series __ Preferred Stock then outstanding shall have the right
to convert such share into the kind and amount of the shares of stock and other
securities or
-19-
<PAGE> 20
property or assets (including cash) that would have been receivable upon such
reclassification, change, consolidation, merger, combination, sale, conveyance,
or Fundamental Change by a holder of the number of shares of Common Stock
issuable upon conversion of such share of Series __ Preferred Stock immediately
prior to such reclassification, change, consolidation, merger, combination,
sale, conveyance, or Fundamental Change; provided, however, that, if the event
referred to in clauses (w) through (z) above constitutes a Non-Stock Fundamental
Change, each holder of Series __ Preferred Stock shall be entitled, upon
conversion thereof, to receive such amount of shares of stock, other securities,
or property or assets (including cash) as is determined by the number of shares
of Common Stock receivable upon conversion at the Conversion Price as adjusted
in accordance with clause (i) of the following paragraph of this subsection (h);
and provided, further, that, if the event referred to in clauses (w) through (z)
above constitutes a Common Stock Fundamental Change, the foregoing provisions of
this subsection (h) shall not apply, but each holder of Series __ Preferred
Stock shall be entitled, upon conversion thereof at any time following such
Common Stock Fundamental Change, to receive such number of shares of common
stock of the successor or acquiring entity as is determined by use of the
Conversion Price as adjusted in accordance with clause (ii) of the following
paragraph of this subsection (h). The adjustments described in this subsection
(h) shall be subject to further adjustments as appropriate that shall be as
nearly equivalent as may be practicable to the relevant adjustments provided for
in this Section 4. If, in the case of any such consolidation, merger,
combination, sale, conveyance, or Fundamental Change, the stock or other
securities and property receivable thereupon by a holder of shares of Common
Stock include shares of stock, securities, or other property or assets
(including cash) of an entity other than the successor or acquiring entity, as
the case may be in such consolidation, merger, combination, sale, conveyance, or
Fundamental Change, then the Corporation shall enter into an agreement with such
other entity for the benefit of the holders of Series __ Preferred Stock that
shall contain such provisions to protect the interests of such holders as the
Board shall reasonably consider necessary by reason of the foregoing.
For purposes of calculating any adjustment to be made in connection
with the occurrence of a Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price shall be deemed to be the lower of (1) the Conversion Price in
effect immediately prior to such Non-Stock Fundamental Change and (2) the
product of (a) the greater of the Applicable Price and the Reference Market
Price
-20-
<PAGE> 21
and (b) a fraction, the numerator of which is $_____ and the denominator of
which is the amount at which one share of Series __ Preferred Stock would be
redeemed by the Corporation if the redemption date were the date of such
Non-Stock Fundamental Change (such denominator being the sum of (x) the product
of the percentage (expressed as a decimal) set forth in the table in Section 3
above or, for the period commencing _____, _____, and ending _____, the 12-month
period commencing _____, _____, the 12-month period commencing _____, _____, the
12-month period commencing _____, _____, _____%, _____%, _____%, and _____%,
respectively, and $_____ , and (y) any then accrued and then accumulated and
unpaid dividends on the Series __ Preferred Stock); provided, however, that if
here were accrued or accumulated and unpaid dividends with respect to the Series
__ Preferred Stock at the time of such Non-Stock Fundamental Change (`Passed
Dividends') and if, thereafter, all (or any portion) of such Passed Dividends
are paid by the Corporation then the Conversion Price to be used in determining
the amount or consideration to which holders of Series __ Preferred Stock who
have not converted their shares of Series __ Preferred Stock shall be entitled
upon conversion thereof shall be deemed to be the Conversion Price that would
have been used in making such determination if all (or such portion) of such
Passed Dividends had not been accrued or accumulated and unpaid at such time and
(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price of the shares of Series __ Preferred Stock immediately
following such Common Stock Fundamental Change shall be the Conversion Price in
effect immediately prior to such Common Stock Fundamental Change multiplied by a
fraction, the numerator of which is the Purchaser Stock Price and the
denominator of which is the Applicable Price; provided, however, that in the
event of a Common Stock Fundamental Change in which (A) 100% by value of the
consideration received by a holder of Common Stock is common stock of the
successor, acquiror, or other third party (and cash, if any, is paid with
respect to any fractional interests in such common stock resulting from such
Common Stock Fundamental Change) and (B) all of the Common Stock of the Company
shall have exchanged for, converted into, or acquired for [common stock of the
successor, acquiror, or other third party], the Conversion Price of the shares
of Series __ Preferred Stock immediately following such Common Stock Fundamental
Change shall be the Conversion Price in effect immediately prior to such Common
Stock Fundamental Change multiplied by a fraction, the numerator of which is one
(1) and the denominator of which is the number of shares of common stock of the
successor, acquiror, or other third party
-21-
<PAGE> 22
received by a holder of one share of Common Stock as a result of such Common
Stock Fundamental Change.]
5. Liquidation Rights. (a) Upon the dissolution, liquidation, or
winding up of the Corporation, the holders of the shares of Series __ Preferred
Stock shall be entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its stockholders, before any payment
or distribution shall be made on the Common Stock or any other class of stock
ranking junior to Series __ Preferred Stock upon liquidation, the amount of
$_____ per share, plus a sum equal to all liquidation, the amount of $_____ per
share, plus a sum equal to all dividends (whether or not earned or declared) on
such shares accrued and unpaid thereon to the date of final distribution.
(b) Neither the sale of all or substantially all the property and
assets of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation, nor the merger or consolidation of any other
corporation, into or with the Corporation shall be deemed to be a dissolution,
liquidation, or winding up, voluntary or involuntary, for the purposes of this
Section 5.
(c) After the payment to the holders of the shares of Series __
Preferred Stock of the full preferential amounts provided for in this Section 5,
the holders of Series __ Preferred Stock, as such, shall have no right or claim
to any of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available for
distribution to the holders of shares of Series __ Preferred Stock upon any
dissolution, liquidation, or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to subsection (a) of this Section 5, no such
distribution shall be made on account of any shares of any other series of
preferred stock or other capital stock of the Corporation ranking on a parity
with the shares of Series __ Preferred Stock upon such dissolution, liquidation,
or winding up unless proportionate distributive amounts shall be paid on account
of the shares of Series __ Preferred Stock, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation, or winding up.
(e) Subject to the rights of the holders of the shares of any series
or class or classes of stock ranking on a parity with or prior to the shares of
Series __ Preferred Stock
-22-
<PAGE> 23
upon liquidation, dissolution, or winding up, upon any liquidation, dissolution,
or winding up of the Corporation, after payment shall have been made in full to
the holders of the shares of Series __ Preferred Stock as provided in this
Section 5, but not prior thereto, any other series or class or classes of stock
ranking junior to the shares of Series __ Preferred Stock upon liquidation
shall, subject to the respective terms and provisions (if any) applying thereto,
be entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the shares of Series __ Preferred Stock shall not be entitled
to share therein.
6. Ranking. For the purposes of this resolution, any stock of any
series or class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of Series __ Preferred Stock, either as to
dividends or upon liquidation, if the holders of such series or class or classes
shall be entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation, or winding up of the Corporation, as the case may be,
in preference or priority to the holders of shares of Series __ Preferred Stock;
(b) on a parity with shares of Series __ Preferred Stock, as to
dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share, or sinking fund
provisions, if any, be different from those of Series __ Preferred Stock, if the
holders of such stock shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation, or winding up of the
Corporation, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one over the other,
as between the holders of such stock and the holders of shares of Series __
Preferred Stock; and
(c) junior to shares of Series __ Preferred Stock, either as to
dividends or upon liquidation, if such class shall be Common Stock or if the
holders of shares of Series __ Preferred Stock shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation, or winding
up of the Corporation, as the case may be, in preference or priority to the
holders of shares of such series or class or classes.
7. Priority of Series __ Preferred Stock. The shares of Series
Preferred Stock will rank on a parity, both as to payment of dividends and the
distribution of assets upon liquidation, with the Corporation's [Cumulative
Preferred Stock
-23-
<PAGE> 24
and Cumulative Convertible Preferred Stock, Series B]. The Series __ Preferred
Stock will rank prior, both as to payment of dividends and the distribution of
assets upon liquidation, to the Common Stock and the Corporation's [Series A
Junior Participating Preferred Stock]."
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designations to be signed by __________________, its _______________________,
and attested by ________________, its _________, whereby such ___________
affirms, under penalties of perjury, that this Certificate of Designations is
the act and deed of the Corporation and that the facts stated herein are true,
this _____ day of _________, ____.
STAR BANC CORPORATION
By ___________________________________
[Name and Office]
Attest:
______________________________
[Name and Office]
-24-
<PAGE> 1
EXHIBIT 4.7
[BORDER]
THIS CERTIFICATE IS TRANSFERABLE IN
CINCINNATI, OH OR NEW YORK NY
NUMBER SHARES
CUSIP 855083 10 1
SEE REVERSE FOR CERTAIN DEFINITIONS
STAR BANC CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF
NO PAR VALUE PREFERRED STOCK OF
Star Banc Corporation transferable on the books of the Corporation by the
holder hereof in person or by duly authorized Attorney upon surrender of this
Certificate properly endorsed. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the signatures of the duly authorized officers of the
Corporation.
Dated
/S/ SECRETARY
/S/ CHAIRMAN OF THE BOARD
Countersigned and Registered:
STAR BANK, N.A.,
Cincinnati, OH Transfer and Registrar
By,
Authorized Signature
[SEAL OF STAR BANC]
<PAGE> 2
The corporation will mail to shareholder, without charge within five
days after receipt of a written request therefor, a copy of the express terms,
if any, of the shares represented by this certificate and of the other class or
classes and series of shares, if any, which the corporation is authorized to
issue.
The following abbreviations, when used on the face of this certificate, shall
be construed as though they were written out in full according to applicable
laws or regulations:
_______________________________
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF TRANSFER MIN ACT - ___________________ Custodian ___________________
(cust) (minor)
under Uniform Transfers to Minors
Act______________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _______________________________________ hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________--_________--__________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP
CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_____________________________Shares of the Capital Stock represented by the
within Certificate, and do hereby irrevocably constitute and appoint
______________________________________________________________________.
Attorney, to transfer the said shares on the books of the with-named Bank, with
full power of substitution in the premises.
<PAGE> 3
Dated________________________________ ________________________________________
SIGNATURE GUARANTEED
________________________________________
<PAGE> 1
EXHIBIT 4.8
[BORDER]
THIS CERTIFICATE IS TRANSFERABLE IN
CINCINNATI, OH OR NEW YORK NY
NUMBER SHARES
CUSIP 855083 10 1
SEE REVERSE FOR CERTAIN DEFINITIONS
STAR BANC CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF
NO PAR VALUE CONVERTIBLE STOCK OF
Star Banc Corporation transferable on the books of the Corporation by the
holder hereof in person or by duly authorized Attorney upon surrender of this
Certificate properly endorsed. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the signatures of the duly authorized officers of the
Corporation.
Dated
/S/ SECRETARY
/S/ CHAIRMAN OF THE BOARD
Countersigned and Registered:
STAR BANK, N.A.,
Cincinnati, OH Transfer and Registrar
By,
Authorized Signature
[SEAL OF STAR BANC]
<PAGE> 2
The corporation will mail to shareholder, without charge within five
days after receipt of a written request therefor, a copy of the express terms,
if any, of the shares represented by this certificate and of the other class or
classes and series of shares, if any, which the corporation is authorized to
issue.
The following abbreviations, when used on the face of this certificate, shall
be construed as though they were written out in full according to applicable
laws or regulations:
_______________________________
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF TRANSFER MIN ACT - ___________________ Custodian ___________________
(cust) (minor)
under Uniform Transfers to Minors
Act______________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _______________________________________ hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________--_________--__________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP
CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_____________________________Shares of the Capital Stock represented by the
within Certificate, and do hereby irrevocably constitute and appoint
______________________________________________________________________.
Attorney, to transfer the said shares on the books of the with-named Bank, with
full power of substitution in the premises.
<PAGE> 3
Dated________________________________ ________________________________________
SIGNATURE GUARANTEED
________________________________________
This certificate may, upon conversion, also evidence and entitle the holder
hereof to certain Rights as set forth in the Rights Agreement between Star
Banc Corporation (the "Company") and Star Bank, N.A. (the "Rights Agent") dated
as of October 10, 1989 (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal offices of the Company. Under certain circumstances, as set forth in
the Rights Agreement, such rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Company will mail to
the holder of this certificate a copy of the Rights Agreement, as in effect on
the date of mailing, without charge promptly after receipt of a written request
therefor. Under certain circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes an Acquiring Person, an
Adverse Person or any Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement), whether currently held by or on behalf of such Person
or by any subsequent holder, may become null and void.
<PAGE> 1
EXHIBIT 4.9
[BORDER]
THIS CERTIFICATE IS TRANSFERABLE IN
CINCINNATI, OH OR NEW YORK NY
NUMBER SHARES
CUSIP 855083 10 1
SEE REVERSE FOR CERTAIN DEFINITIONS
STAR BANC CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF
$5.00 PAR VALUE COMMON STOCK OF
Star Banc Corporation transferable on the books of the Corporation by the
holder hereof in person or by duly authorized Attorney upon surrender of this
Certificate properly endorsed. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the signatures of the duly authorized officers of the
Corporation.
Dated
/S/ SECRETARY
/S/ CHAIRMAN OF THE BOARD
Countersigned and Registered:
STAR BANK, N.A.,
Cincinnati, OH Transfer and Registrar
By,
Authorized Signature
[SEAL OF STAR BANC]
<PAGE> 2
The corporation will mail to shareholder, without charge within five
days after receipt of a written request therefor, a copy of the express terms,
if any, of the shares represented by this certificate and of the other class or
classes and series of shares, if any, which the corporation is authorized to
issue.
The following abbreviations, when used on the face of this certificate, shall
be construed as though they were written out in full according to applicable
laws or regulations:
_______________________________
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF TRANSFER MIN ACT - ___________________ Custodian ___________________
(cust) (minor)
under Uniform Transfers to Minors
Act______________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _______________________________________ hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________--_________--__________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP
CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_____________________________Shares of the Capital Stock represented by the
within Certificate, and do hereby irrevocably constitute and appoint
______________________________________________________________________.
Attorney, to transfer the said shares on the books of the with-named Bank, with
full power of substitution in the premises.
<PAGE> 3
Dated________________________________ ________________________________________
SIGNATURE GUARANTEED
________________________________________
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between Star Banc Corporation (the
"Company") and Star Bank, N.A. (the "Rights Agent") dated as of October 10,
1989 (the "Rights Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the principal offices of
the Company. Under certain circumstances, as set forth in the Rights Agreement,
such rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in effect on the date of
mailing, without charge promptly after receipt of a written request therefor.
Under certain circumstances set forth in the Rights Agreement, Rights issued
to, or held by, any Person who is, was or becomes an Acquiring Person, an
Adverse Person or any Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement), whether currently held by or on behalf of such Person
or by any subsequent holder, may become null and void.
<PAGE> 1
Exhibit 4.10
STAR BANC CORPORATION,
MELLON BANK, NATIONAL ASSOCIATION, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Deposit Agreement
Dated as of __________, _____
<PAGE> 2
TABLE OF CONTENTS
Page
----
<TABLE>
<S> <C>
PARTIES .................................................................. 1
RECITALS ................................................................. 1
ARTICLE I
Definitions
Certificate .............................................................. 1
Company .................................................................. 1
Deposit Agreement ........................................................ 1
Depositary ............................................................... 1
Depositary Shares ........................................................ 1
Depositary's Agent ....................................................... 2
Depositary's Office ...................................................... 2
Receipt .................................................................. 2
record holder ............................................................ 2
Registrar ................................................................ 2
Stock .................................................................... 2
ARTICLE II
Form of Receipts, Deposit of Stock;
Execution and Delivery; Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts ........................ 2
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof ..................... 4
SECTION 2.03. Redemption of Stock .................................. 5
SECTION 2.04. Registration of Transfer of Receipts ................. 6
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock ........................................... 6
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts ........................................... 7
SECTION 2.07. Lost Receipts, etc. .................................. 8
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts ................................ 8
[SECTION 2.09. Conversion of Stock into Common Stock ................. 8]
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and
Other Information .................................. 9
SECTION 3.02. Payment of Taxes or Other
Governmental Charges ............................... 9
SECTION 3.03. Warranty as to Stock ................................. 10
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions ................................... 10
SECTION 4.02. Distributions Other than Cash,
Rights, Preferences or Privileges .................. 10
SECTION 4.03. Subscription Rights, Preferences
or Privileges ...................................... 11
SECTION 4.04. Notice of Dividends, etc.; Fixing of
Record Date for Holders of Receipts ................ 12
SECTION 4.05. Voting Rights ........................................ 13
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications, Recapi-
talizations, etc. .................................. 13
SECTION 4.07. Inspection of Reports ................................ 14
SECTION 4.08. List of Receipt Holders .............................. 14
</TABLE>
-ii-
<PAGE> 4
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
<TABLE>
<S> <C>
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar .......................................... 14
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company ............... 15
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company .................................... 16
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary ............................... 17
SECTION 5.05. Corporation Notices and Reports ...................... 18
SECTION 5.06. Indemnification by the Company ....................... 18
SECTION 5.07. Charges and Expenses ................................. 18
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment ............................................ 19
SECTION 6.02. Termination .......................................... 19
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts ......................................... 20
SECTION 7.02. Exclusive Benefit of Parties ......................... 20
SECTION 7.03. Invalidity of Provisions ............................. 20
SECTION 7.04. Notices .............................................. 20
SECTION 7.05. Depositary's Agents .................................. 21
SECTION 7.06. Holders of Receipts Are Parties ...................... 21
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<S> <C>
SECTION 7.07. Governing Law ........................................ 21
SECTION 7.08. Inspection of Deposit Agreement ...................... 21
SECTION 7.09. Headings ............................................. 21
TESTIMONIUM .............................................................. 22
SIGNATURES ............................................................... 22
</TABLE>
EXHIBIT A: Form of Depositary Receipt
-iv-
<PAGE> 6
DEPOSIT AGREEMENT dated as of
_____, _____, among STAR BANC CORPORATION,
an Ohio corporation, MELLON BANK,
NATIONAL ASSOCIATION, and the
holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Cumulative [Convertible]
Preferred Stock, Series __, without par value, of STAR BANC CORPORATION with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary Shares in respect of the
Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit
A annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of designations filed with
the Secretary of State of Ohio establishing the Stock as a series of preferred
stock of the Company.
"Company" shall mean Star Banc Corporation, an Ohio corporation, and
its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean Mellon Bank, National Association, and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
[one quarter] of a share of Stock and evidenced by a Receipt.
<PAGE> 7
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary in
[Pittsburgh, Pennsylvania], at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the Depositary Receipts issued
hereunder, whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in
whose name a Receipt is registered on the books of the Depositary maintained for
such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's Cumulative [Convertible]
Preferred Stock, Series __, without par value (stated value $____________
per shares).
ARTICLE II
Form of Receipts; Deposit of Stock;
Execution and Delivery; Transfer,
Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and shall
be substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Stock, as the
case may be, delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at
-2-
<PAGE> 8
an office described in the last paragraph of Section 2.02, without charge to the
holder. Upon surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of a
duly authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of 400,000 Depositary Shares for any particular
Receipt.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in
-3-
<PAGE> 9
Section 2.04, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Stock may from time to time deposit
shares of the Stock under this Deposit Agreement by delivery to the Depositary
of a certificate or certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement, and together with a
written order of the Company or such holder, as the case may be, directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock on the books of the Company in the name of the Depositary or its nominee,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt or Receipts for the number of Depositary
Shares representing the Stock so deposited and registered in such name or names
as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of
-4-
<PAGE> 10
dividends or other distributions of Stock, if any, there shall be deposited
hereunder not more than _____ shares of Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company shall elect
to redeem shares of Stock in accordance with the provisions of the Certificate,
if the Certificate provides for such redemption, it shall (unless otherwise
agreed in writing with the Depositary) give the Depositary not less than 40 nor
more than 70 days' notice of the date of such proposed redemption of Stock,
which notice shall be accompanied by a certificate from the Company stating that
such redemption of Stock is in accordance with the provisions of the
Certificate. Such notice, if given more than 50 days prior to the redemption
date, shall be in addition to the notice required to be given for redemption
pursuant to the Certificate. On the date of such redemption, provided that the
Company shall then have paid in full to the Depositary the redemption price of
the Stock to be redeemed, plus any accrued and unpaid dividends thereon, the
Depositary shall redeem the number of Depositary Shares representing such Stock.
The Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares representing the
Stock to be redeemed, first-class postage prepaid, not less than 30 and not more
than 60 days prior to the date fixed for redemption of such Stock and Depositary
Shares (the "Redemption Date"), to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed, at the addresses of such holders as
they appear on the records of the Depositary; but neither failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accumulate on such Redemption Date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so
redeemed shall be selected on a pro rata basis as determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of
-5-
<PAGE> 11
Stock so called for redemption shall cease to accumulate, the Depositary Shares
being redeemed from such proceeds shall be deemed no longer to be outstanding,
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to be extent of such
Depositary Shares cease and terminate and, upon surrender in accordance with
such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to one quarter of the redemption price per share paid in
respect of the shares of Stock plus all money and all property, if any,
represented by such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the Redemption Date have accumulated on the
shares of Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized denomination nor
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may withdraw the Stock and all
-6-
<PAGE> 12
money and other property, if any, represented thereby by surrendering such
Receipt or Receipts at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole shares of
Stock and all money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal, but holders of such whole shares of
Stock will not thereafter be entitled to deposit such Stock hereunder or to
receive Depositary Shares therefore. If a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Section 2.03) upon his order, a new Receipt evidencing such excess
number of Depositary Shares. Delivery of the Stock and money and other property
being withdrawn may be made by the delivery of such certificates, documents of
title and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any
-7-
<PAGE> 13
charges or expenses payable by the holder of a Receipt pursuant to Section 5.07,
may require the production of evidence satisfactory to it as to the identity and
genuineness of any signatures and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed, or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof, and (ii) the furnishing of the Depositary with an
indemnity bond satisfactory to it.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
[SECTION 2.09. Conversion of Stock into Common Stock. It is
understood and agreed that the Depositary Shares are not convertible into the
Common Stock, par value $ per share, of the Company (the "Common Stock") or any
other securities of property of the Company. Nevertheless, as a matter of
convenience, the Company hereby agrees to accept (or to cause its conversion
agent to accept) the delivery of Receipts for the purpose of effecting
conversions of the Stock utilizing the same procedures as those provided for
delivery of Stock certificates to effect such conversions in accordance with the
terms and conditions of the Certificate; provided, however, that only whole
Depositary Shares may be so submitted for conversion. If fewer than all of the
Depositary Shares evidenced
-8-
<PAGE> 14
by a Receipt are to be converted, the Company shall instruct the Depositary to
issue a new Receipt or Receipts for the Depositary Shares not to be converted.
For this purpose, a holder of a Receipt or Receipts may surrender such Receipt
or Receipts to the Company at the Depositary's Office or at such other office as
the Company may from time to time designate for such purpose, together with a
duly completed and executed Notice of Conversion in the form included in the
Receipt. In all cases, the foregoing shall be conditioned upon compliance in
full by the holder of such Receipt or Receipts with the terms and conditions of
the Certificate and of this Deposit Agreement. The Company shall instruct the
Depositary to cancel each Receipt surrendered for such conversion and to deliver
to the Company any certificates for related Stock so converted, and the Company
will cancel such Stock certificates.]
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any receipt or the withdrawal of the Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of any dividend
or other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or any part of or all the Stock
or other property represented by the Depositary Shares evidenced by such Receipt
and not theretofore sold may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior to such sale),
and such dividends, interest payments or other distributions or the proceeds of
any such
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<PAGE> 15
sale may be applied to any payment of such charges or expenses, the holder of
such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents
and warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Section 3.01 and 3.02, distributee to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective number of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Section 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
deems, after consultation with the Company, such distribution
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<PAGE> 16
not to be feasible, the Depositary may, with the approval of the Company, adopt
such method as it deems equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such securities unless the
Company shall have provided an opinion of counsel stating that such securities
have been registered under the Securities Act of 1933 or do not need to be
registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company, provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed by the Depositary
to the records holders of Receipts entitled thereto as provided by Section 4.01
in the case of a distribution received in cash. The Company shall not make any
distribution of any such rights,
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preferences or privileges unless the Company shall have provided an opinion of
counsel stating that such rights, preferences or privileges have been registered
under the Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the securities
to which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give
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instructions for the exercise of voting rights at any such meeting, or who shall
be entitled to notice of such meeting or for any other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting, and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of whole shares of Stock represented by the Depositary Shares
evidenced by all Receipts as to which any particular voting instructions are
received. The Company hereby agrees to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to vote such Stock
or cause such Stock to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will abstain from voting (but, at its
discretion, not from appearing at any meeting with respect to such Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Stock represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par of stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in (x) the
fraction of an interest represented by one Depositary Share in one share of
Stock, and (y) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as may be necessary fully to
reflect the effects of such changes in par or stated value, split-up,
combination, or other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation, and (ii) treat
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any securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so received
in exchange for or upon conversion or in respect of such Stock. In any such case
the Depositary may in its discretion, with the approval of the Company, execute
and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities. Anything to the contrary herein notwithstanding,
holders of Receipts shall have the right from and after the effective date of
any such change in par or stated value, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger, amalgamation or consolidation to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
ARTICLE V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts,
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all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary will appoint a Registrar (acceptable to the Company)
for registration of such Receipts or Depositary Shares in accordance with any
requirements of such Exchange. Such Registrar (which may be the Depositary if so
permitted by the requirements of such Exchange) may be removed and a substituted
registrar appointed by the Depositary upon the request or with the approval of
the Company. If the Receipts, such Depositary Shares or such Stock are listed on
one or more other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Certificate of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden
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<PAGE> 21
from, or subjected to any penalty on account of, doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to holders of
Receipts other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such
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<PAGE> 22
duties as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Deposit Agreement against the
Depositary or any Registrar. The Depositary will indemnify the Company against
any liability which may arise out of acts performed or omitted by the Depositary
or its agents due to its or their negligence or bad faith. The Depositary, the
Depositary's Agents and any Registrar may own and deal in any class of
securities of the Company and its affiliates and Receipts. The Depositary may
also act as transfer agent or registrar of any of the securities of the Company
and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor Depositary and its acceptance of such appointment
as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and
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shall deliver to such successor a list of the record holders of all outstanding
Receipts. Any successor Depositary shall promptly mail notice of its appointment
to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporation Notices and Reports. The Company agrees
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Company's Certificate of
Incorporation (including the Certificate) to be furnished by the Company to
holders of stock. Such transmission will be at the Company's expense.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
negligence or bad faith on the respective parts of any such person or persons,
or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Receipts or the Stock pursuant to the provisions hereof. The
obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, redemption of the Stock at the option
of the Company and all withdrawals of shares of the Stock by owners of
Depositary Shares. All other transfer and other taxes and governmental charges
shall
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be at the expense of holders of Depositary Shares. If, at the request of a
holder of Receipts, the Depositary incurs charges or expenses for which it is
not otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
once each month or at such other intervals as the Company and the Depositary may
agree.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent (as
hereinafter defined), which shall go into effect not sooner than three months
after notice thereof to the holders of the Receipts) which shall materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of at least a majority of
the Depositary Shares then outstanding. Every holder of an outstanding Receipt
at the time any such amendment becomes effective shall be deemed, by continuing
to hold such Receipt, to consent and agree to such amendment and to be bound by
this Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03, or (ii) there shall have been made
a final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this
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Deposit Agreement except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.06 and 5.07.
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to the Company at Star Bank Center, 425
Walnut Street, P.O. Box 1038, Cincinnati, Ohio 45202, to the attention of the
Secretary, or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at [2 Mellon
Bank Center, Pittsburgh, PA 15259], or at any other address of which the
Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be
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in writing and shall be deemed to have been duly given if personally delivered
or sent by mail or by telegram or telex confirmed by letter, addressed to such
record holder at the address of such record holder as it appears on the books of
the Depositary, or if such holder shall have filed with the Depositary a written
request that notices intended for such holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the laws of the State of [New
York.]
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for
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convenience only and are not to be regarded as a part of this Deposit Agreement
or the Receipts or have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
STAR BANC CORPORATION
Attested by By ___________________________________
Its ________________________________
______________________________
MELLON BANK,
NATIONAL ASSOCIATION,
as Depositary
Attested by By ____________________________________
Its _________________________________
______________________________
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<PAGE> 28
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN __ DEPOSITARY SHARES
DR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING CUMULATIVE [CONVERTIBLE] PREFERRED STOCK, SERIES OF
STAR BANC CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS
MELLON BANK, NATIONAL ASSOCIATION, as Depositary (the "Depositary"), hereby
certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [one quarter (1/4)] of
one share of Cumulative [Convertible] Preferred Stock, Series __, without par
value (stated value $____ per share), of Star Banc Corporation, an Ohio
corporation (the "Corporation"), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement dated as of , ,
(the "Deposit Agreement") between the Corporation and the Depositary. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
and shall have been countersigned manually by a Registrar or by the Depositary
as Registrar in respect of the Depositary Receipts by the manual signature of a
duly authorized officer thereof.
Dated:
COUNTERSIGNED AND
REGISTERED:
Mellon Bank,
National Association
DEPOSITARY AND REGISTRAR
By
Authorized Officer
<PAGE> 29
STAR BANC CORPORATION
STAR BANC CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH
THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
____________________
The following abbreviations, when used in the inscription on the face of this
receipt, 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 Custodian
(Cust) (Minor)
TEN ENT --as tenants by the Under Uniform Gifts to Minors Act
JT TEN --as joint tenants with right
of survivorship and not as
tenants in common ______________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _____________ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/ /
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
______________________________________________________________ Depositary Shares
represented by the within Receipt, and do hereby irrevocably constitute and
appoint
_______________________________________________________________________ Attorney
to transfer the said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated: _____ _________________________________________________________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of this Receipt in every particular,
without alteration or enlargement or any change whatever.
<PAGE> 1
EXHIBIT 4.12
STAR BANC CORPORATION
Form of Debt Warrant Agreement*
THIS WARRANT AGREEMENT dated as of __________, ____, between Star
Banc Corporation, an Ohio corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), and _______________________ as Warrant Agent (herein called the "Warrant
Agent").
WHEREAS, the Company has entered into an indenture (the "[Senior]
[Subordinated] Indenture") dated as of __________, ____, between the Company and
_________________________, as trustee (the "[Senior] [Subordinated] Trustee")],
providing for the issuance from time to time of its unsecured [senior]
[subordinated] debentures, notes or other evidences of indebtedness (the
"[Senior] [Subordinated] Debt Securities"), to be issued in one or more series
as provided in the [Senior] [Subordinated] Indenture; [if Warrant Securities are
not under same Indenture as Debt Securities to which they are attached -- and an
Indenture (the "[Senior] [Subordinated] Indenture", the [Senior] and
[Subordinated] Indentures being referred to collectively as the "Indentures")
dated as of ____________, between the Company and ____________________________,
as trustee (the "[Senior] [Subordinated] Trustee", the [Senior] and
[Subordinated] Trustees being referred to collectively as the "Trustees"),
providing for the issuance from time to time of its [senior] and [subordinated]
debentures, notes or other evidence of indebtedness (the "[Senior]
[Subordinated] Debt Securities", the [Senior] and [Subordinated] Debt
Securities", the [Senior] and [Subordinated] Debt Securities being referred to
collectively as the "Debt Securities"), to be issued in one or more series as
provided in the [Senior] [Subordinated] Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold with
Debt Securities or Preferred Stock -- [Title of Debt Securities or Preferred
Stock being offered] (the "Offered Securities") with] warrant certificates
evidencing one or more warrants (the "Warrants" or individually a "Warrant")
repre-
____________________________________
* Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Warrants, Warrant Securities and Offered Securities. Monetary
amounts may be in U.S. dollars or in foreign currency or European Currency Units
("ECU").
<PAGE> 2
senting the right to purchase [title of Debt Securities purchasable through
exercise of Warrants] (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to the Agreement being herein called
the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANT AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and _______________ (the "Detachable Date")] [and shall not be
separately transferable and each Warrant Certificate shall evidence one or more
Warrants.] Each Warrant evidenced thereby shall represent the right, subject to
the provisions contained herein and therein, to purchase a Warrant Security in
the principal amount of ______________. [If Offered Securities and Warrants --
Warrant Certificates shall be initially issued in units with the Offered
Securities and each Warrant Certificate included in such a unit shall evidence
____________ Warrants for each [________ principal amount] [_______ shares] of
Offered Securities included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in [registered] [bearer] form
substantially in the form set forth in Exhibit A hereto, shall be dated
_____________ and may have such letters, numbers, or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to
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<PAGE> 3
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by the Chairman of the Board, the President or a Vice
President of the Company and by the Treasurer or one of the Assistant Treasurers
or the Secretary or one of the Assistant Secretaries of the Company under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holders" or "holder of a Warrant Certificate" as used
herein shall mean [the bearer of such Warrant Certificate] [any person in whose
name at the time any Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose] [If Offered Securities and
Warrants are not immediately detachable -- or [the bearer] [upon the register]
of the Offered Securities prior to the Detachable Date. [Prior to the Detachable
Date, the Company will, or will cause the registrar of the Offered Securities
to, make available at all time to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date]].
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<PAGE> 4
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
_________________ aggregate principal amount of Warrant Securities (except as
provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
_______________ principal amount of Warrant Securities and shall deliver such
Warrant Certificates to or upon the order of the Company. Subsequent to such
original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided or as
provided in Section 2.03(c).
SECTION 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing Warrant Certificates may determine, as evidenced by their execution at
such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ______________], without charge to the holder. Upon
surrender for cancellation of any one or more temporary Warrant Certificates the
Company shall execute and the Warrant Agent shall authenticate and deliver in
exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
-4-
<PAGE> 5
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
SECTION 2.01. Warrant Price. During the period from ___________,
through and including _______________, the exercise price of each Warrant will
be ________ plus [accrued amortization of the original issue discount] [accrued
interest] from ____________. During the period from ____________, through and
including _____________, the exercise price of each Warrant will be _________
plus [accrued amortization of the original issue discount] [accrued interest]
from _______________. [In each case, the original issued discount will be
amortized at a ___% annual rate, computed on an annual basis using the
"interest" method and using a 360-day year consisting of twelve 30-day months.]
Such purchase price of Warrant Securities is referred to in this Agreement as
the "Warrant price". [The original issue discount for each _______ principal
amount of Warrant Securities is ______________.]
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date thereof]
[_________] and at or before 5 P.M., New York City time, on _____________ [or
such later date as the Company may designate, by notice to the Warrant Agent and
the holders of Warrant Certificates mailed to their addresses as set forth in
the record books of the Warrant Agent] (the "Expiration Date"). Each Warrant not
exercised at or before 5 P.M., New York City time, on the Expiration Date shall
become void, and all rights of the holder of the Warrant Certificate evidencing
such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified
in Section 2.02 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America]
[applicable currency,] [in cash or by certified check or official bank check or
by, in each case,] [by bank wire transfer] in immediately available funds the
Warrant Price for each Warrant exercised, to the Warrant Agent at its corporate
trust office [or at _______________________________________________________],
provided that such exercise is subject to receipt within five business days of
such [payment] [wire transfer] by the Warrant Agent of the Warrant Certificate
with the form of election to purchase Warrant Securities set forth on the
reverse side of the Warrant Certificate properly completed and duly executed
[including any applicable certifications if the Warrant Securities are issuable
in bearer form].
-5-
<PAGE> 6
The date on which payment in full of the Warrant Price is received by the
Warrant Agent shall, subject to receipt of the Warrant Certificates as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in an account of the Company maintained with it [if non-dollar denominated
funds -- or in other account designated by the Company] and shall advise the
Company by telephone at the end of each day an which a [payment] [wire transfer]
for the exercise of Warrants is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephone advice to the
Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating to
the Warrant Securities] of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iv)
such other information as the Company or such Trustee shall reasonably require.
(c) As promptly as practicable after the exercise of any Warrant,
the Company shall issue, pursuant to the Indenture, in authorized denominations
to or upon the order of the holder of the Warrant Certificate evidencing such
Warrant, the Warrant Securities to which such holder is entitled, in (fully
registered form, registered in such name or names as may be directed by such
holder] [bearer form, provided the holder has furnished to the Warrant Agent all
certifications required by applicable U.S. Treasury regulations for the delivery
of bearer securities and only if the Company has no reason to know that the
certification(s) is false]. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised. [Unless otherwise instructed by the Company, Warrant Securities in
bearer form shall be delivered to or upon the order of the holder of such
Warrant Certificate only outside the United States and its possessions.]
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer
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<PAGE> 7
in involved, the Company shall not be required to issue or deliver any Warrant
Security until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the [Indenture relating to the Warrant
Securities].
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section , the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the mutilated, lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful)
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<PAGE> 8
all other rights and remedies with respect to the replacement of mutilated,
lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.04. Merger, Consolidation, Conveyance, Transfer or Lease.
If at any time there shall be it merger, consolidation, conveyance, transfer or
lease of assets subject to Section 801 of the [Indenture relating to the Warrant
Securities], then in any such event the successor or assuming corporation
referred to therein shall succeed to and be substituted for the Company, with
the same effect, subject to such Indenture, as if it had been named herein and
in the Warrant as the Company; the Company shall thereupon be relieved of any
further obligation hereunder or under the Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Warrants issuable hereunder which theretofore shall
not have been signed by the Company, and may execute and deliver Warrant
Securities in its own name pursuant to such Indenture, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such
consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Warrants
thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer or
lease complies with the provisions of this Section 3.04 and such Indenture.
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<PAGE> 9
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.01. Exchange and Transfer of Warrant Certificates. [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with Warrants which are not immediately detachable -- Prior
to the Detachable Date a Warrant Certificate may be exchange or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or __________], Warrant Certificates evidencing Warrants may be
exchanged for Warrant Certificates in other denominations evidencing such
Warrants [or the transfer thereof may be registered in whole or in part];
provided that such other Warrant Certificates evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered. [The Warrant Agent shall
keep, at its corporate trust office [and at ____________], books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or __________________] for exchange or registration
of transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent.] No service charge shall be
made for any exchange [or registration of transfer] of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange [or registration of transfer]. Whenever any Warrant Certificates are so
surrendered for exchange [or registration of transfer], an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly
authorized and executed by the Company, as so requested. The Warrant Agent shall
not be required to effect any exchange [or registration of transfer] which will
result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of a warrant. All Warrant
Certificates issued upon any exchange [or registration of transfer] of Warrant
Certificates shall be the
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<PAGE> 10
valid obligations of the Company, evidencing the same obligations, and entitled
to the sane benefits under this Agreement, as the Warrant Certificate
surrendered for such exchange [or registration of transfer].
SECTION 4.02. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date,] [if
registered Warrants --and prior to due presentment of a Warrant Certificate for
registration of transfer,] the Company, the Warrant Agent and all other persons
may treat the holder of Warrant Certificate as the owner thereof for any purpose
and as the person entitled to exercise the rights represented by the Warrants
evidenced thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange [, registration of transfer] or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.01. Warrant Agent. The Company hereby appoints
_____________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth; and ______________ hereby accepts such appointment.
The Warrant Agent shall have the powers and authority granted to and conferred
upon it in the Warrant Certificates and hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to
or confer upon it. All of
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<PAGE> 11
the term and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the term and provisions
hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred without
a negligence by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as Warrant Agent hereunder, an
well as the costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that
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<PAGE> 12
it or they would if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of Holders of Warrant
Securities or other obligations of the Company as freely as it were not the
Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to
prevent the Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates,
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any Invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's a countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of any of the Warrant Certificates or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein or in
the Warrant Certificates or in the case of the receipt of any written demand
from a holder of a Warrant Certificate with respect to such default, including,
without limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or, except
as pro-
-12-
<PAGE> 13
vided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrant have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of much intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law; or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver custodian, liquidator, assignee, trustee, sequestrator
(or similar official) of the Warrant Agent or of its property or affairs, or any
public
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<PAGE> 14
officer shall take charge or control of the Warrant Agent or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment an aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS.
SECTION 6.01. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any detective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not affect
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<PAGE> 15
adversely the interest of the holders of the Warrant Certificates.
SECTION 6.02. Notice and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to other
Warrant Agent with respect to this Agreement shall be addressed to ,
Attention: and any communication from the Warrant Agent to the Company with
respect to this Agreement shall be addressed to Star Banc Corporation,
Star Bank Center, 425 Walnut Street, P.O. Box 1038, Cincinnati, Ohio 45202,
Attention: Thomas J. Lakin, General Counsel (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale,
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<PAGE> 16
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF Star Banc Corporation and
have this caused this Agreement to be signed by the respective duly authorized
officers, and their respective corporate seals to be affixed hereunto, and the
same to be attested by their respective Secretaries or one of their respective
Assistant Secretaries, all as of the day and year first above written.
STAR BANC CORPORATION
By__________________________________________
Title:
Attest:
____________________________
Title:
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<PAGE> 17
[Warrant Agent]
By__________________________________________
Title:
Attest:
____________________________
Title:
-17-
<PAGE> 18
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Prior to this
Offered Securities with Warrant Certificate cannot be
Warrants which are not transferred or exchanged unless
immediately detachable. attached to a [Title of Offered
Securities].]
[Form of Legend if Warrants Prior to , Warrants
are not immediately evidenced by this Warrant
exercisable. Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
STAR BANC CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON __________
No. ___________ _____________ Warrants
This certifies that [the bearer is the] [_________ _________________
or registered assigns is the registered] owner of the above-indicated number of
Warrants, each Warrant entitling such owner [if Offered Securities with Warrants
which are not immediately detachable --, subject to the [bearer] [registered
owner] qualifying as a "holder" of this Warrant Certificate, as hereinafter
defined] to purchase, at any time [after 5 P.M., New York City time, on
___________ and] on or before 5 P.M., New York City time, on ___________ ,
________ principal amount of [Title of Warrant Securities] (the "Warrant
Securities"), of Star Banc Corporation (the "Company"), issued and to be issued
under the Indenture (as hereinafter defined), on the following basis: during the
period from ______________, through and including _____________ the exercise
price of each Warrant will be ____________ plus [accrued amortization of the
original issue discount] [accrued interest] from _____________; during the
period from ________________ through and including _____________ the exercise
price of each Warrant will be ____________ plus [accrued amortization of the
original issue discount] [accrued interest] from _____________; [in each case,
the original issue discount will be amortized at a __% annual rate, computed on
an annual basis using the "interest" method
A-1
<PAGE> 19
and using a 360-day year consisting of twelve 30-day months] (the "Warrant
Price"). [The original issue discount for each ______ principal amount of
Warrant Securities is ____________.] The holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof,
including any applicable certifications if the Warrants Securities are issuable
in bearer form, and by paying in full [in lawful money of the United States of
America] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] in
immediately available funds, the Warrant Price for each Warrant exercised to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the "Warrant Agent"), [or __________], which is, on the date hereof, at
the address on the reverse hereof, and upon compliance with and subject to the
conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "holder" as used herein shall mean [if Offered Securities
with Warrants which are not immediately detachable -- , prior to
________________ Offered Securities with Warrants which are not immediately
detachable -- , prior to __________ (the "Detachable Date"), the [bearer]
[registered owner] of the Company's [title of Offered Securities] to which this
Warrant Certificate is initially attached, and after such Detachable Date,] [the
bearer of this Warrant Certificate] [the person in whose name at the time this
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose pursuant to Section 4.01 of the Warrant
Agreement].
Any whole number of Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form in
denominations of ________ and any integral multiples thereof. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _________ _________ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file
A-2
<PAGE> 20
at the above-mentioned office of the Warrant Agent [and at ___________________].
The Warrant Securities to be issued and delivered upon the exercise
of the Warrants evidenced by this Warrant Certificate will be issued under and
in accordance with an indenture (the "Indenture"), dated as of __________, ____
between the Company and ________________, as trustee (the "Trustee"), and will
be subject to the terms and provisions contained in the Indenture. Copies of the
Indenture and the form of the Warrant Securities are on file at the corporate
trust office of the Trustee [and at _________________].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to _______________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, transfer of this] [if
Offered Securities with Warrants which are immediately detachable -- Transfer of
this] Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or
] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.] [effected by delivery and the
Company and the Warrant Agent may treat the bearer hereof as the owner for all
purposes.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any
of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
A-3
<PAGE> 21
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of ____________________.
STAR BANC CORPORATION
By:______________________________________
Authorized Officer
Attest:
____________________________
Countersigned:
____________________________
As Warrant Agent
By:_________________________
Authorized Signature
A-4
<PAGE> 22
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [in cash or by certified check or official bank
check or by bank wire transfer, in each case] [by bank wire transfer] in
immediately available funds the Warrant Price in full for Warrants exercised to
[insert name of Warrant Agent] [corporate trust department] [insert address of
Warrant Agent], Attn. ________________ [or __________________], which [payment]
[wire transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below, including any applicable certifications if the Warrant
Securities are issuable in bearer form, and present this Warrant Certificate in
person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________
Warrants, evidenced by this Warrant Certificate, to purchase ________ principal
amount of the [Title of Warrant Securities] (the "Warrant Securities") of Star
Banc Corporation and represents that he has tendered payment for such Warrant
Securities in [Dollars] [applicable currency] [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of Star Banc Corporation,
c/o [insert name and address of Warrant Agent], in the amount of _________ in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Securities be in [bearer] [fully registered] form in the
authorized denominations, registered in such names and delivered all as
specified in accordance with the instructions set forth below. [However, unless
otherwise designated by the Company, Warrant Securities in bearer form shall be
delivered to or upon the order of the holder of such Warrant Certificate only
outside the United States and its possessions.]
A-5
<PAGE> 23
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ___________________ Name______________________________________________
__________________________ Address___________________________________________
(Insert Social Security or
Other Identifying Number ___________________________________________
of Holder)
Signature___________________________________
[If registered Warrant -- [If registered Warrant --
Signature Guaranteed (Signature must conform in all
__________________________] respects to name of holder as specified on
face of this Warrant Certificate and must
bear a signature guarantee by a bank, trust
company or member broker of the New York,
Midwest or Pacific
Stock Exchange)]
The Warrants evidenced hereby may be exercised at the following
address:
By hand at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
By mail at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificate evidencing unexercised Warrants -- complete as
appropriate.]
A-6
<PAGE> 24
[If registered Warrant]
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED_________________________________________________
hereby sells, assigns and transfers unto
___________________________ ____________________________________________
(Please print name) (Please insert social security or
other identifying number)
___________________________
(Address)
___________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
____________________________________________
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Warrant Certificate and must bear a
signature guarantee by a bank, trust company
or member broker of the New York, Midwest or
Pacific Stock Exchange)
Signature Guaranteed
___________________________
A-7
<PAGE> 25
CERTIFICATION* AS TO NON-U.S. OWNERSHIP
[To be completed if Securities
in bearer form are requested]
[Form of certificate to be given by person requesting
delivery of bearer Warrant Security upon
exercise of Warrant]
CERTIFICATE
STAR BANC CORPORATION
[Title of Warrant Securities] Issuable Upon Exercise of Warrants
("Warrant Securities")
To: Star Banc Corporation
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise of the
Warrant Certificate relating to the Warrant Securities, by delivery to you of
the Election to Purchase dated as of_______________.
The undersigned hereby certifies that as of the date hereof, the
Warrant Securities which are to be delivered to the undersigned in bearer form
upon the exercise by the undersigned of such Warrant Certificate (i) are owned
by persons that are not United States Persons, as defined below; (ii) are owned
by United States Persons that are (a) foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165.12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States Persons who acquired the obligations through
foreign branches of United States financial institutions and who hold the
obligations through such financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution provides a
certificate in the form that follows this certificate); or (iii) are owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
certify that they have not acquired the obligations for purposes of resale
directly or indirectly to a United States Person or to a person within the
United States or its possessions. The undersigned undertakes
A-8
<PAGE> 26
to advise you by tested telex followed by written confirmation if the statement
in the immediately preceding sentence is not correct on the date of delivery of
the above-captioned Securities in bearer form.
We understand that this certificate is required in connection with
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate. "United
States Person" shall mean a citizen or resident of the United States of America
(including the District of Columbia), a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof or an estate or trust that is subject to United States
federal income taxation regardless of the source of its income.
Date: _________________
[Name of Person Entitled to Receive Warrant
Securities Described Herein]
__________________________________________________
(Authorized Signatory)
Name:_____________________________________________
Title:
_______________
Subject to change in accordance with changes in tax laws and regulations.
A-9
<PAGE> 27
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
CERTIFICATE
STAR BANC CORPORATION
[Title of Warrant Securities] Issuable Upon Exercise of Warrants
("Warrant Securities")
To: Star Banc Corporation
[Name of Warrant Agent], or
Warrant Agent
This certificate is submitted in connection with the exercise of the
Warrant Certificate relating to the Warrant Securities, by delivery to you of
the Election to Purchase dated as of_________________.
The undersigned represents that it is a branch located outside the
United States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(V)) that holds customers' securities in the ordinary course of
its trade or business and agrees that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Securities in bearer
form.
We understand that this certificate is required in connection with
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
A-10
<PAGE> 28
Date: _________________
[Name of Person Entitled to Delivery of
Warrant Securities Described Herein]
__________________________________________________
(Authorized Signatory)
Name:_____________________________________________
Title:____________________________________________
_________________
Subject to change in accordance with changes in tax laws and regulations.
A-11
<PAGE> 1
EXHIBIT 4.13
STAR BANC CORPORATION
Form of Preferred Stock Warrant Agreement
THIS WARRANT AGREEMENT dated as of between Norwest
Corporation, a Delaware corporation (hereinafter called the "Company,") and
as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold with
other securities -- [title of such other securities being offered] (the "Offered
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Preferred Stock or Depositary Shares purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
Warrant Certificate"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company in connection with the issuance, exchange, exercise and replacement
of the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
- ----------------
* Complete or modify the provisions of this Form as appropriate to reflect
the terms of the Warrants, Warrant Securities and Offered Securities.
<PAGE> 2
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warranties -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after____________(the "Detachable Date")] [and shall not be
separately transferable] and each Warrant Certificate shall evidence one or more
Warrants.] Each Warrant evidenced thereby shall represent the right, subject to
the provisions contained herein and therein, to purchase one Warrant Security.
[If Offered Securities and Warrants -- Warrant Certificates shall be initially
issued in units with the Offered Securities and each Warrant Certificate
included in such a unit shall evidence _____________ Warrants for each
[__________________ principal amount] [_______________ shares] of Offered
Securities included in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in the form set forth in Exhibit A hereto, shall be dated _____________ and may
have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officer of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by the
Chairman of the Board, the President or a Vice President of the Company and by
the Treasurer or one of the Assistant Treasurers or the Secretary or one of the
Assistant Secretaries of the Company under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers any may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
No Warrant Certificate shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the
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<PAGE> 3
manual signature of the Warrant Agent. Such signature by the Warrant Agent upon
any Warrant Certificate executed by the Company shall be conclusive evidence
that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose [If Offered Securities and Warrants are not immediately detachable
- -- or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the Registrar of
the Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date].
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase in aggregate not exceeding _______ Warrant
Securities (except as provided in Sections 2.03(c), 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right to
purchase up to _____________ Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or in
connection with their transfer, as hereinafter provided.
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<PAGE> 4
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS.
SECTION 2.01. Warrant Price. During the period from ___________,
through and including ________________, the exercise price of each Warrant will
be ____________. During the period from _____________, through and including
____________, the exercise price of each Warrant will be _____________. Such
purchase price of Warrant Securities is referred to in this Agreement as the
"Warrant Price". No adjustment shall be made for any dividends on any Warrant
Securities issuable upon exercise of any Warrant.
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised in
whole at any time, as specified herein, on or after [the date hereof]
[___________] and at or before 5 P.M., New York City time, on _______________ or
such later date as the Company may designate, by notice to the Warrant Agent and
the holders of Warrant Certificates mailed to their addresses as set forth in
the record books of the Warrant Agent (the "Expiration Date"). Each Warrant not
exercised at or before 5:00 P.M., New York City time, on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificates
evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified
in Section 2.02 any whole number of Warrants may be exercised by providing
certain information as set forth on the reverse side of the Warrant Certificate
and by paying in full, in [lawful money of the United States of America] [in
cash or by certified check or official bank check or by bank wire transfer, in
each case,] [by bank wire transfer] in immediately available funds] the Warrant
Price for each Warrant exercised to the Warrant Agent at its corporate trust
office [or at _______________], provided that such exercise is subject to
receipt within five business days of such [payment] [wire transfer] by the
Warrant Agent of the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which payment in full of the
Warrant Price is received by the Warrant Agent shall, subject to receipt of the
Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant
is exercised. The Warrant Agent shall deposit all funds received by it in
payment of the Warrant Price in an account of the Company maintained with it and
shall advise the Company by telephone at the end of
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<PAGE> 5
each day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder
is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant Securities to which such holder
is entitled, in fully registered form, registered in such name or names as may
be directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
(e) Prior to the issuance of any Warrants there shall be reserved,
and the Company shall at all times keep reserved, out of its authorized but
unissued Warrant Securities, a number of shares sufficient to provide for the
exercise of the Warrant Certificates.
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<PAGE> 6
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of dividends or distributions, if any, on the Warrant Securities or to
exercise any voting rights.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and or indemnity reasonably
satisfactory to the Warrant Agent and the Company and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may, in such holder's
own behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or
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<PAGE> 7
proceeding against the Company suitable to enforce, or otherwise in respect of,
such holder's right to exercise the Warrants evidenced by such holder's Warrant
Certificate in the manner provided in such holder's Warrant Certificate and in
this Agreement.
SECTION 3.04. Reclassification, Consolidation, Merge Sale,
Conveyance or Lease. In case any of the following shall occur while any Warrants
are outstanding: (a) any reclassification or change of the outstanding shares of
Warrant Securities or; (b) any consolidation or merger to which the Company is
party (other than a consolidation or a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change in, the outstanding shares of Warrant Securities issuable upon exercise
of the Warrants); or (c) any sale, conveyance or lease to another corporation of
the property of the Company as an entirely or substantially as an entirety; then
the Company, or such successor or purchasing corporation, an the case may be,
shall make appropriate provision by amendment of this Agreement or otherwise so
that the holders of the Warranties then outstanding shall have the right at any
time thereafter, upon exercise of such Warrants, to purchase the kind of amount
of shares of stock and other securities and property receivable upon such a
reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of shares of Warrant Securities
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or, lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Warrants issuable
hereunder which heretofore shall not have been signed by the Company, and may
execute and deliver warrant Securities in its own name, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
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<PAGE> 8
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such reclassification, change, consolidation,
merger, conveyance, transfer or lease complies with the provisions of this
Section 3.04.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.01. Exchange and Transfer Warrant Certificates. [If
Offered Securities with Warrants which are immediately detachable -- Upon] [If
Offered Securities with Warrants which are not immediately detachable -- Prior
to the Detachable Date a Certificate may be exchanged or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Offered
Securities] shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust office of the
Warrant Agent [or __________________], Warrant Certificates evidencing Warrants
may be exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. The Warrant Agent shall
keep, at its corporate trust office [and at ___________________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and exchanges and transfers of outstanding Warrant
Certificates, upon surrender of the Warrant Certificates to the Warrant Agent at
its corporate trust office [or ____________] for exchange or registration of
transfer, properly endorsed or accompanied by appropriate instruments of
registration of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent. No service charge shall be
made for any exchange or registration of transfer of Warrant Certificates, but
the Company may require payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange or registration of transfer. Whenever any Warrant Certificates are so
surrendered for exchange or registration of transfer, an authorized officer of
the Warrant Agent shall manually countersign and deliver to the person or
persons entitled thereto a Warrant Certificate or Warrant Certificates duly
authorized and executed by the Company, as so
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<PAGE> 9
requested. The Warrant Agent shall not he required to effect any exchange or
registration of transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificate surrendered for such
exchange or registration of transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced by such Warrant
Certificates, any notice to the contrary notwithstanding. After the Detachable
Date and prior to due presentment of a Warrant Certificate for registration of
transfer,] [T]he Company and the Warrant Agent may treat the registered holder
of a Warrant Certificate as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange therefor or in lieu
thereof. The Warrant Agent shall deliver to the Company from time to time or
otherwise dispose of cancelled Warrant Certificates in a manner satisfactory to
the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.01. Warrant Agent. The Company hereby appoints
________________ as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein set
forth; and ______________ hereby accepts such appointment. The Warrant
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<PAGE> 10
Agent shall have the powers and authority granted to and conferred upon it in
the Warrant Certificates and hereby and such further powers and authority to act
an behalf of the Company as the Company way hereafter grant to or confer upon
it. All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of
which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred without
gross negligence by the Warrant Agent in connection with the services rendered
hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Warrant Agent,
arising out of or in connection with its acting as Warrant Agent hereunder, as
well as the costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement
and in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
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<PAGE> 11
(e) Certain Transactions. The warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as top the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing,
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<PAGE> 12
any duty or responsibility to initiate any proceedings at law or otherwise or,
except as provided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the intended date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable Federal or State
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief to a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or a decree or order by
a court having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or similar official) of the Warrant
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<PAGE> 13
Agent or of its property or affairs, or any public officer shall take charge or
control of the Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
successor Warrant Agent of such appointment, the Warrant Agent shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, an Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS.
SECTION 6.01. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any detective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not affect
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<PAGE> 14
adversely the interests of the holders of the Warrant Certificates.
SECTION 6.02. Notices And Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
______________________________________, Attention: _____________ and any
communication from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to Star Banc Corporation, Star Banc Center, 425
Walnut Street, P.O. Box 1038, Cincinnati, Ohio 45202 (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company shall furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities act filings under United States Federal and State
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933), which may be
or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale,
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<PAGE> 15
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his warrant Certificate for
inspection by it.
IN WITNESS WHEREOF Star Banc Corporation and _______________ have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
STAR BANC CORPORATION
By____________________________________
Title:
Attest:
___________________________
Title:
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<PAGE> 16
[Warrant Agent]
By____________________________________
Title:
Attest:
_______________________
Title
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<PAGE> 17
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities Prior to______________________________
with Warrants which are not this Warrant Certificate cannot be
immediately detachable. transferred or exchanged unless
attached to a [Title of Offered
Securities].]
[Form of Legend if Warrants are not Prior to ______________________,
immediately exercisable. Warrants evidenced by this Warrant
Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
STAR BANC CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M., NEW YORK CITY TIME, ON _____________
No. ____________ __________ Warrants
This certifies that ______________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants which are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined) to purchase, at
any time [after 5 P.M., New York City time on ___________ and] on or before 5
P.M., New York City time, on _____________, __________ shares of [Title of
Warrant Securities] (the "Warrant Securities"), of Star Banc Corporation (the
"Company") on the following basis: during the period from ___________, through
and including ________, the exercise price of each Warrant will be ____________;
during the period from ___________, through and including ___________, the
exercise price of each Warrant will be _______________ (the "Warrant Price"). No
adjustment shall be made for and dividends on any Warrant Securities issuable
upon exercise of any Warrant. The holder may exercise the Warrants evidenced
hereby by providing certain information set forth on the back hereof and by
paying in full [in lawful money of the United States of America] [in cash or by
certified check or official bank check or by bank wire transfer, in each case,]
A-1
<PAGE> 18
[by bank wire transfer] in immediately available funds, the Warrant Price for
each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [name of Warrant Agent], or its
successor as warrant agent (the "Warrant Agent"), [or ___________], which is, on
the date hereof, at the address specified on the reverse hereof, and upon
compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities
with Warrants which are not immediately detachable --, prior to ______________
(the "Detachable Date"), the registered owner of the Company's (title of Offered
Securities) to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate
may be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _________________ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at _____________].
[If Offered Securities with registered Warrants which are not
immediately detachable -- Prior to _____________, this Warrant Certificate may
be exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, transfer of this] [if
Offered Securities with registered Warrants which are immediately detachable --
Transfer of this] Warrant Certificate may be registered when this Warrant
Certificate is surrendered at the corporate trust office of the Warrant Agent
[or _____________] by the registered owner or
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<PAGE> 19
such owner's assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[if Offered Securities with Warrants which are immediately detachable or Warrant
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ____________]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any
of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of dividends or distributions, if any,
on the Warrant Securities or the exercise any voting rights.
This Warrant Certificate shall not be valid or obliatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _________________
STAR BANC CORPORATION
By ___________________________________
Title:
Attest:
______________________________
Countersigned:
______________________________
As Warrant Agent
By ___________________________
Authorized Signature
A-3
<PAGE> 20
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay [in
United States dollars] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds the Warrant Price in full for Warrants exercised to [insert of
name of Warrant Agent] [corporate trust department] [insert address of Warrant
Agent], Attn. _____________ [or __________], which [payment] [wire transfer]
must specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below and
present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth
below. This Warrant Certificate, completed and duly executed, must be received
by the Warrant Agent within five business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________
Warrants, evidenced by this Warrant Certificate, to purchase _________ shares of
the [Title of Warrant Securities] (the "Warrant Securities") of Norwest
Corporation and represents that he has tendered payment for such Warrant
Securities [in Dollars] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer] in immediately
available funds to the order of Star Banc Corporation, c/o [insert name and
address of Warrant Agent], in the amount of __________ in accordance with the
terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
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<PAGE> 21
Dated: _____________________________ Name__________________________________
____________________________________ Address_______________________________
(Insert Social Security or Other
Identifying Number of Holder) _______________________________
Signature Guaranteed
____________________ Signature_____________________________
(Signature must conform in all
respects to name of holder as
specified on the face of this Warrant
Certificate and must bear a signature
guarantee by a bank, trust company or
member broker of the New York, Midwest
or Pacific Stock Exchange)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
By mail at _________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants --complete as
appropriate.]
A-5
<PAGE> 1
EXHIBIT 4.14
STAR BANC CORPORATION
FORM OF COMMON STOCK WARRANT AGREEMENT
COMMON STOCK WARRANT AGREEMENT dated as of ________, ____, between
Star Banc Corporation, a Delaware corporation (hereinafter called the
"Company"), and ____________________ having a corporate trust office in
_________________________, as warrant agent (hereinafter called the "Warrant
Agent").
WHEREAS, the Company propose to issue [Class ___] Purchase Warrants
(hereinafter called the "Warrants") entitling the holders thereof to purchase an
aggregate of ______ shares of Common Stock of the Company (par value $[ ] per
share) (hereinafter called the "Shares") at an initial cash price of $_____ per
Share at any time [after ____________ and] prior to 3:30 p.m., New York City
time, on _________, ____ (hereinafter called the "expiration date") (unless
extended as provided in Section 9A hereof); and
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT --
WHEREAS, the Warrants will be offered in Units, each of which
consists of ______________ and Warrants to purchase ______ Shares; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange and exercise of Warrants to be issued
from time to time by the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
Section 2. Form of Warrant. The text of Warrants and the form of
election to purchase Shares to be set forth on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. Each Warrant shall,
subject to the form of this Warrant Agreement, entitle the registered holder
thereof to initially purchase the number of Shares specified therein at an
initial exercise Price of $______ per share; provided, however, that the warrant
exercise price and the number
<PAGE> 2
of Shares issuable upon exercise of Warrants are subject to adjustment upon the
occurrence of certain events, all as hereinafter provided. The Warrants shall be
executed on behalf of the Company by the manual or facsimile signature of the
present or any future Chairman of the Board, President or Vice President of the
Company, under its seal, affixed or in facsimile, and by the manual or facsimile
signature of the present or any future Secretary or Assistant Secretary of the
Company.
The Company shall promptly notify the Warrant Agent from time to
time in writing of the number of Warrants to be issued and furnish written
instructions in connection therewith signed by an executive officer of the
Company; such notification and instructions may, but need not be, in the form of
a general or continuing authorization to the Warrant Agent.
The Warrants shall be dated by the Warrant Agent as of the date of
each initial issuance, and as of the date of issuance thereof upon any transfer
or exchange thereof.
Section 3. Countersignature and Registration. The Warrant Agent
shall maintain books for the transfer and registration of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective registered holders thereof. The Warrants
shall be countersigned by the Warrant Agent (or by any successor to the Warrant
Agent then acting as warrant agent under this Agreement) and shall not be valid
for any purpose unless so countersigned. Such Warrants may be so countersigned,
however, by the Warrant Agent (or by its successor as warrant agent) and be
delivered by the Warrant Agent, notwithstanding that the persons whose manual or
facsimile signatures appear thereon as proper officers of the Company shall have
ceased to be such officers at the time of such countersignature or delivery.
Upon issuance of any Warrant, the Company will present the same, or cause the
same to be presented, to the Warrant Agent for countersignature of such Warrant.
Section 4. Transfers and Exchanges. The Warrant Agent shall
transfer, from time to time, any outstanding Warrants upon the books to be
maintained by the Warrant Agent for that purpose, upon the surrender thereof for
transfer properly endorsed or accompanied by appropriate instructions for
transfer. Upon any such transfer, a new Warrant of like tenor shall be issued to
the transferee and the surrendered Warrant shall be cancelled by the Warrant
Agent. All such Warrants so cancelled shall be delivered by the Warrant Agent to
the Company from time to time. The Warrants may be exchanged at the option of
the holder thereof, when surrendered at the office in _________________ of the
Warrant Agent, for another Warrant, or
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<PAGE> 3
other Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of Shares. The Warrant Agent is
hereby irrevocably authorized to countersign and deliver, in accordance with the
provisions of this Section and Section 3 of this Agreement, such new Warrants
required pursuant to the provisions of this Section, and the Company, whenever
required by the Warrant Agent, will supply the Warrant Agent with Warrants duly
executed on behalf of the Company for such purpose.
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT --
Notwithstanding the foregoing, until __________, the warrants shall
not be transferable apart from the ___________ to which they are attached, any
transfer of the ___________ shall be deemed a transfer of the Warrants attached
thereto, and any attempt to transfer the Warrants apart from the ___________
shall be void and of no effect. Each Warrant shall contain a legend to the
foregoing effect.]
Section 5. Exercise of Warrants. The registered holder of each
Warrant shall have the right, which may be exercised as in such Warrant
expressed, to purchase from the Company (and the Company shall issue and sell to
such registered holder) the number of Shares specified in such Warrants, upon
surrender to the Company, at the office in ____________________ of the Warrant
Agent of such Warrant, with the form of election to purchase on the reverse
thereof duly filled in and signed, and upon payment to the Warrant Agent for the
account of the Company of the warrant exercise price, determined in accordance
with the provisions of Section 9 of this Agreement, for the number of Shares in
respect of which such Warrant is then exercised. Payment of such warrant
exercise price may be made in cash, or by certified check or bank draft or
postal or express money order, payable in United States dollars, to the order of
the Warrant Agent. No adjustment shall be made for any dividends on any Shares
issuable upon exercise of any Warrant. Subject to Section 6, upon such surrender
of Warrants, and payment of the warrant exercise price as aforesaid, the Company
shall issue and cause to be delivered with all reasonable dispatch to or upon
the written order of the registered holder of such Warrants, and in such name or
names as such registered holder may designate, a certificate or certificates for
the number of full Shares so purchased upon the exercise of such Warrants,
together with cash, as provided in Section 9 of this Agreement, in respect of
any fraction of a Share otherwise issuable upon such surrender. Such certificate
or certificates shall be deemed to have been issued and any person so designated
to be named therein shall be deemed to have become a
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<PAGE> 4
holder of record of such Shares as of the date of the surrender of such Warrants
and payment of the warrant exercise price as aforesaid; provided, however, that
if, at the date of surrender of such Warrants and payment of such warrant
exercise price, the transfer books for the Shares purchasable upon the exercise
of such Warrants shall be closed, no such surrender of such Warrants and no such
payment of such warrant exercise price shall be effective to constitute the
person so designated to be named therein as the holder of record of such Shares
on such date, but shall be effective to constitute such person as the holder of
record of such Shares for all purposes at the opening of business on the next
succeeding day on which the transfer books for the Shares purchasable upon the
exercise of such Warrants shall be opened, and the certificates for the Shares
in respect of which such Warrants are then exercised shall be issuable as of the
date on which such books shall next be opened, and until such date the Company
shall be under no duty to deliver any certificate for such Shares. The rights of
purchase represented by the Warrants shall be exercisable, at the election of
the registered holders thereof, either as an entirety or from time to time for
part only of the Shares specified therein and, in the event that any Warrant is
exercised in respect of less than all of the Shares specified therein at any
time prior to the date of expiration of the Warrants, a new Warrant or Warrants
of like tenor will be issued for the remaining number of Shares specified in the
Warrant so surrendered, and the Warrant Agent is hereby irrevocably authorized
to countersign and to deliver the required new Warrants pursuant to the
provisions of this Section and of Section 3 of this Agreement, and the Company,
whenever required by the Warrant Agent, will supply the Warrant Agent with
Warrants duly executed on behalf of the Company for such purpose.
Section 6. Payment of Taxes. The Company will pay any documentary
stamp taxes attributable to the initial issuance of Shares issuable upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer involved
in the issue or delivery of any certificates for Shares in a name other than
that of the registered holder of Warrants in respect of which such shares are
issued and the Company shall not be required to issue and deliver the
certificates for such Shares unless and until the holder has paid to the Company
the amount of any tax which may be payable in respect of any transfer involved
in such issuance or shall establish to the satisfaction of the Company that such
tax has been paid.
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<PAGE> 5
Section 7. Mutilated or Missing Warrants. In case any of the
Warrants shall be mutilated, lost, stolen or destroyed, the Company will issue
and the Warrant Agent will countersign and deliver in exchange and substitution
for and upon cancellation of the mutilated Warrant, or in lieu of and
substitution for the Warrant lost, stolen or destroyed, a new Warrant of like
tenor and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrants and indemnity, if requested, also satisfactory
to them. Applicants for such substitute Warrants shall also comply with other
reasonable regulations and pay such other reasonable charges as the Company or
the Warrant Agent may prescribe. Any such new Warrant shall constitute an
original contractual obligation of the Company whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
Section 8. Reservation of Shares, etc. Prior to the issuance of any
Warrants there shall have been reserved, and the Company shall at all times
through the expiration date keep reserved, out of its authorized and unissued
Common Stock, a number of Shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the Transfer Agent for the
Shares and every subsequent Transfer Agent for the Shares issuable upon the
exercise of any of the rights of purchase aforesaid are hereby irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued Shares as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent for the Shares and with
every subsequent Transfer Agent for the Shares issuable upon the exercise of the
rights of purchase represented by the Warrants. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
certificates required to honor outstanding Warrants that have been exercised.
The Company will supply such Transfer Agent with duly executed certificates for
such purpose and will itself provide or otherwise make available any cash which
may be issuable as provided in Section 9 of this Agreement. All Warrants
surrendered in the exercise of the rights thereby evidenced or surrendered for
transfer, exchange or partial exercise shall be cancelled by the Warrant Agent
and shall thereafter be delivered to the Company.
Section 9. Warrant Price; Adjustment. A. The warrant price per share
at which Shares shall be purchasable upon exercise of Warrants (herein called
the "warrant exercise price") to and including the expiration date (unless the
expiration date is extended as provided below in this Section 9A) shall be
$_________ per share, or, if adjusted as provided in
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<PAGE> 6
this Section , shall be such price as so adjusted. The Warrants will not be
exercisable prior to [the close of business on the date of any initial issuance
thereof] [____________] and will expire at 3:30 p.m., New York City time, an the
expiration date; provided that the Company reserves the right to, and may, in
its sole discretion, at any time and from time to time, at such time or times as
the Company so determines, extend the expiration date of the Warrants for such
periods of time as it chooses; further provided that in no case may the
expiration date of the Warrants (as extended) be extended five years from the
expiration date set forth above. Whenever the expiration date of the Warrants is
so extended, the Company shall at least 20 days prior to the then expiration
date cause to be mailed to the Warrant Agent and the registered holders of the
Warrants in accordance with the provisions of Section 7 hereof a notice stating
that the expiration date has been extended and setting forth the new expiration
date.
B. The above provision is, however, subject to the following:
(1) The warrant purchase price, the number of Shares purchasable
upon exercise of each Warrant and the number of Warrants outstanding shall be
subject to adjustment as follows:
(a) In case the Company shall at any time after the date of
this Agreement (i) pay a dividend, or make a distribution, on the Common Stock
which is payable in shares of its capital stock (whether shares of Common Stock
or of capital stock of any other class), (ii) subdivide or reclassify its
outstanding shares of Common Stock into a greater number of securities
(including shares of Common Stock), or (iii) combine or reclassify its
outstanding shares of Common Stock into a smaller number of shares (including
shares of Common Stock), the number of Shares purchasable upon exercise of each
Warrant immediately prior to the occurrence of such event shall be adjusted so
that the holder of each Warrant shall be entitled to receive upon payment of the
warrant purchase price the aggregate number of shares of the Company which, if
such Warrant had been exercised immediately prior to the occurrence of such
event, such holder would have owned or have been entitled to receive immediately
after the occurrence of such event. An adjustment made pursuant to this
subparagraph (a) shall become effective immediately after the record date in the
case of a dividend and shall become effective immediately after the effective
date in the case of a subdivision or combination. If, as a result of an
adjustment made pursuant to this subparagraph (a), the holder of any Warrant
thereafter exercised shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors of the Company
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<PAGE> 7
(whose determination shall be conclusive) shall determine the allocation between
or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment made
pursuant to this subparagraph (a), the holder of any Warrant thereafter
exercised shall become entitled to receive any shares or other securities of the
Company other than Shares of Common Stock, thereafter the number of such other
shares so received upon exercise of any Warrant shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the shares of Common Stock contained in this
paragraph, and other provisions of this paragraph 9B(1) with respect to the
shares of Common Stock shall apply on like terms to any such other shares or
other securities.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock entitling them
(for a period expiring within 45 days after such record date) to subscribe for
or purchase Common Stock at a price per share less than the current market price
per share of Common Stock (as defined in subparagraph (e) below) at such record
date, the warrant purchase price shall be determined by multiplying the warrant
purchase price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Shares of Common Stock outstanding
on such record date plus the number of Shares of Common Stock which the
aggregate offering price of the total number of Shares so offered would purchase
at such current market price, and the denominator of which shall be the number
of Shares of Common Stock outstanding on such record date plus the number of
additional Shares of Common Stock offered for subscription or purchase. Such
adjustment shall be made successively whenever such a record date is fixed, and
shall become effective immediately after such record date. In determining
whether any rights or warrants entitle the holders to subscribe for or purchase
shares of common stock at less than such current market price, and in
determining the aggregate offering price of such shares, there shall be taken
into account any consideration received by the Company for such rights or
warrants, the value of such consideration, if other than cash, to be determined
by the Board of Directors of the Company. Common Stock owned by or held for the
account of the Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment required under this subparagraph
(b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock of
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<PAGE> 8
evidences of its indebtedness or assets (excluding regular quarterly or other
periodic or recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings or referred to in subparagraph (a)
above) or rights or warrants to subscribe or warrants to purchase (excluding
those referred to in subparagraph (b) above), then in each such case the warrant
purchase price shall be determined by multiplying the warrant purchase price in
effect immediately prior to such record date by a fraction (x) the numerator of
which shall be such current market price (as defined in subparagraph (e) below)
per Share of Common Stock on such record date, less the then fair market value
(as determined in good faith by the Board of Directors, whose determination
shall be conclusive) of the portion of the assets or evidences of indebtedness
so distributed or of such description rights or to applicable to one share of
the Common Stock and (y) the denominator of which shall be the current market
price per share of the Common Stock on such record date. Such adjustment shall
be made successively whenever such a record date is fixed and shall become
effective immediately after such record date. Notwithstanding the foregoing, in
the event that the Company shall distribute any rights or warrants to acquire
capital stock ("Rights") pursuant to this subparagraph (c), the distribution of
separate certificates representing such Rights subsequent to their initial
distribution (whether or not, such distribution shall have occurred prior to the
date of the issuance of such Warrants) shall be deemed to be the distribution of
such Rights for purposes of this subparagraph (c), provided that the Company
may, in lieu of making any adjustment pursuant to this subparagraph (c) upon a
distribution of the certificates representing such Rights, make proper provision
so that each holder of such Warrants who exercises such Warrants (or any portion
thereof) (A) before the record date for such distribution of separate
certificates shall be entitled to receive upon such exercise shares of Common
Stock issued with Rights and (B) after such record date and prior to the
expiration, redemption or termination of such Rights shall be entitled to
receive upon such exercise, in addition to the shares of Common Stock issuable
upon such exercise, the same number of such Rights as would a holder of the
number of shares of Common Stock that such Warrants so exercised would have
entitled the holder thereof to purchase in accordance with the terms and
provisions of and applicable to the Rights if such Warrants were exercised
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Company or any majority owned subsidiary shall
not be deemed outstanding for the purpose of any adjustment required under this
subparagraph (c).
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<PAGE> 9
(d) After each adjustment of the number at shares purchasable
upon exercise of each Warrant pursuant to subparagraph 9B(1)(a), the warrant
exercise price shall be adjusted by multiplying such warrant exercise price
immediately prior to such adjustment by a fraction of which the numerator shall
be the number of Shares purchasable upon exercise of each Warrant immediately
prior to such adjustment, and the denominator of which shall be the number of
Shares so purchasable immediately thereafter. After each adjustment of the
warrant exercise price pursuant to subparagraph 9B(1)(b) or (c), the total
number of Shares or fractional part thereof purchasable upon the exercise of
each Warrant shall be proportionately adjusted to such number of shares or
fractional parts thereof as the aggregate warrant exercise price of the number
of shares or fractional parts thereof purchasable immediately prior to such
adjustment will buy at the adjusted warrant exercise price.
(e) For the purpose of any computation under subparagraphs
9B(1)(b) and (c) above, the current market price per Share of Common Stock at
any date shall be deemed to be the average of the daily closing prices for the
30 consecutive business days commencing 45 business days before the day in
question. The closing price for each day shall be (i) if the Common Stock is
listed or admitted for trading on the New York Stock Exchange, the last sale
price (regular way), or the average of the closing bid and ask prices (regular
way), if no sale occurred, of Common Stock, in either case as reported on the
New York Stock Exchange Composite Tape or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange, on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange, on
the National Market System of the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ") or, (ii) if not listed or quoted as
described in (i), the mean between the closing high bid and low asked quotations
of Common Stock reported by NASDAQ, or any similar system for automated
dissemination of quotations of securities prices then in common use, if so
quoted, or (iii) if not quoted as described in clause (ii), the mean between the
high bid and low asked quotations for Common Stock as reported by the National
Quotation Bureau Incorporated if at least two securities dealers have inserted
both bid and asked quotations for Common Stock on at least 5 of the 10 preceding
days. If none of the conditions set forth above is met, the closing price of
Common Stock on any day or the average of such closing prices for any period
shall be the fair market value of Common Stock as determined by a member firm of
the New York Stock Exchange selected by the Company.
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<PAGE> 10
(f) (A) Nothing contained herein shall be construed to require
an adjustment as a result of the issuance of Common Stock pursuant to, or the
granting or exercise of any rights under, the Company's [List employee and
shareholder plans, if any, that might otherwise result in adjustments].
(B) In addition, no adjustment in the warrant exercise
price shall be required unless and until the earlier of the following shall have
occurred: (x) such adjustment would require an increase or decrease of at least
1% in the warrant exercise price or (y) a period of 3 years shall have elapsed
from the date of the occurrence of any event requiring any such adjustment
pursuant to subparagraphs 9B(1)(a), (b) or (c) above. All adjustments shall be
made to the nearest one hundredth of a Share and the nearest cent, and any
adjustments which by reason of this subparagraph (f) are not required to be made
shall be carried forward cumulatively and taken into account in any subsequent
adjustment which (including such carry-forward) is required to be made under
this subparagraph (f).
(g) In any case in which this subparagraph 9B(1) shall require
that an adjustment be made retroactively immediately following a record date,
the Company may elect to defer (but only until five business days following the
mailing of the notice described in subparagraph 9B(5) below) issuing to the
holder of any Warrant exercised after such record date the shares of the Company
issuable upon such exercise over and above the Shares issuable upon such
exercise only on the basis of the warrant exercise price prior to adjustment.
(h) The Company may, at its option, at any time until the
expiration date, reduce the then current warrant exercise price to any amount
deemed appropriate by the Board of Directors of the Company for any period not
exceeding twenty (20) consecutive days (as evidenced in a resolution adopted by
such Board of Directors), but only upon giving the notices required by
subparagraph 9(B)(5) twenty (20) days prior to taking such action.
(i) Except as herein otherwise expressly provided, no
adjustment in the warrant exercise price shall be made by reason of the issuance
of Shares, or securities convertible into or exchangeable for Shares, or
securities carrying the right to purchase any of the foregoing or for any other
reason whatsoever.
(j) Irrespective of any of the adjustments in the warrant
exercise price or the number of Shares, Warrant Certificates theretofore issued
may continue to express the same prices and number of shares as are stated in a
similar
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<PAGE> 11
Warrant Certificate issuable initially, or at some subsequent time, pursuant to
this Agreement and such number of Shares specified therein shall be deemed to
have been so adjusted.
(2) No fractional Shares of Common Stock shall be issued upon the
exercise of Warrants. If more than one Warrant shall be exercised at one time by
the same holder, the number of full Shares which shall be issuable upon such
exercise shall be computed on the basis of the aggregate number of Shares
purchased pursuant to the Warrants so exercised. Instead of any fractional Share
of Common Stock which would otherwise be issuable upon exercise of any Warrant,
the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the last sales price (or bid price if there were
no sales) per Share of Common Stock, in either case as reported on the New York
Stock Exchange Composite Tape on the business day which next precedes the day of
exercise or, if the Common Stock is not then listed or admitted to trading on
the New York Stock Exchange, an amount equal to the same fraction of the market
price per share of Common Stock (as determined in a manner described by the
Board of Directors of the Company) at the close of business on the business day
which next precedes the day of exercise.
(3) In case any of the following shall occur while any Warrants are
outstanding: (a) any reclassification or change of the outstanding Shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value); or (b) any consolidation or merger to
which the Company is a party (other than a consolidation or a merger in which
the Company is the continuing corporation and which does not result in any
reclassification of, or change in, the outstanding shares of Common Stock
issuable upon exercise of the Warrants); or (c) any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety; then the Company, or such successor or purchasing
corporation, as the case may be, shall make appropriate provision by amendment
of this Agreement or otherwise so that the holders of the Warrants then
outstanding shall have the right at any time thereafter, upon exercise of such
Warrants, to purchase the kind and amount of shares of stock and other
securities and property receivable, upon such reclassification, change,
consolidation, merger, sale or conveyance as would be received by a holder of
the number of shares of Common Stock issuable upon exercise of such Warrant
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. Such provision shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 9. The above provisions of this subparagraph 9B(3) shall similarly apply
to
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<PAGE> 12
successive reclassifications, changes, consolidations, mergers, sales or
conveyances.
(4) Before taking any action which would cause an adjustment
decreasing the warrant exercise price so that the warrant exercise price is
below the then par value of the shares of Common Stock, the Company will take
any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Shares of Common Stock at the warrant exercise price as so
adjusted.
(5) Whenever the warrant exercise price then in effect is adjusted
as herein provided, the Company shall mail to each holder of the Warrants at
such holder's address as it shall appear on the books of the Company a statement
setting forth the adjusted warrant exercise price then and thereafter effective
under the provisions hereof, together with the facts, in reasonable detail, upon
which such adjustment is based.
(6) In case (i) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
current or retained earnings, or (ii) the Company shall authorize the granting
to the holders of its Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights, or (iii) there is
to be any reclassification of the Common Stock of the Company (other than a
division or combination of its outstanding shares of Common Stock), or any
consolidation or merger to which the Company is a party and for which approval
of any shareholders of the Company is required, or (iv) any distribution is to
be made on or in respect of the Common Stock in connection with the dissolution,
liquidation or winding up of the Company, then the Company shall mail to each
holder of Warrants at such holder's address as it shall appear on the books of
the Company, at least twenty days (or ten days in any case specified in clause
(i) or (ii) above) prior to the applicable record date hereinafter specified, a
notice stating (x) the record date for such dividend, distribution or rights,
or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, dissolution, liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reclassification, consolidation, merger,
dissolution, liquidation or winding up. No failure to mail such notice nor any
defect therein or in the mailing thereof
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<PAGE> 13
shall affect any such transaction or any adjustment in the Warrant exercise
price required by this Section 9.
Section 10. Notice to Warrantholders. Nothing contained in this
Agreement or in any of the Warrants shall be construed as conferring upon the
holders thereof the right to vote or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter, or any rights whatsoever as
shareholders of the Company.
Section 11. Certain Covenants of the Company.
A. So long as any unexpired Warrants remain outstanding and if
required in order to comply with the Securities Act of 1933, as amended (the
"Act"), the Company covenants and agrees that it will file such post-effective
amendments to the registration statement filed pursuant to the Act with respect
to the Warrants (File No. 33-______) (or such other registration statements or
post-effective amendments or supplements) as may be necessary to permit the
Company to deliver to each person exercising a Warrant a prospectus meeting the
requirements of Section 10(a)(3) of the Act and otherwise complying therewith,
and will deliver such a prospectus to each such person. The Company further
covenants and agrees that it will obtain and keep effective all permits,
consents and approvals of governmental agencies and authorities, and will use
its best efforts to take all action which may be necessary to qualify the Shares
for sale under the securities laws of such of the United States, as may be
necessary to permit the free exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants, and to
maintain such qualifications during the entire period in which the Warrants are
exercisable.
B. The Company covenants and agrees that it shall take all such
action as may be necessary to ensure that all Shares will at the time of
delivery of certificates for such Shares (subject to payment of the warrant
exercise price) be duly and validly authorized and issued and fully paid and
nonassessable Shares, free from any preemptive rights and taxes, liens, charges
and security interests created by or imposed upon the Company.
C. The Company covenants and agrees that it will take all action
which may be necessary to cause the Shares to be duly listed on the New York
Stock Exchange or any securities exchange on which the other shares of Common
Stock of the Company are listed or on the National Market System of NASDAQ at
the dates of exercise of the Warrants.
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<PAGE> 14
Section 12. Disposition of Proceeds, etc. A. The Warrant Agent shall
account promptly to the Company with respect to Warrants exercised and
concurrently pay to the Company all moneys received by the Warrant Agent for the
purchase of Shares through the exercise of such Warrants.
B. The Warrant Agent shall keep copies of this Agreement available
for inspection by holders of Warrants during normal business hours at its
principal office in the City of __________, _________.
Section 13. Merger or Consolidation or Change of Name of Warrant
Agent. Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of Section 15 of this Agreement. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, and if any of the Warrants shall have been countersigned but not
delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent, and deliver such Warrants so
countersigned; and in case at that time any of the Warrants shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrants
either in the name of the predecessor Warrant Agent or in the name of the
successor Warrant Agent; and in all such cases such Warrant shall have the full
force provided in the Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, the Warrant Agent may countersign
such Warrants either in its prior name or in its changed name; and in all such
cases such Warrants shall have the full farce provided in the Warrants and in
this Agreement.
Section 14. Duties of Warrant Agent. The Warrant Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of
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<PAGE> 15
which the Company and the holders of Warrants, by their acceptance thereof,
shall be bound:
A. The statements contained herein and in the Warrants shall be
taken as Statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrants
except as herein otherwise provided.
B. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
C. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees or for any loss to the Company resulting
from such neglect or misconduct, provided reasonable care shall have been
exercised in the selection and continued employment thereof.
D. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company), and the Warrant Agent
shall incur no liability or responsibility to the Company or to any holder of
any Warrant in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
E. The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant for any action taken in reliance on
any notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
F. The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the execution of
this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the execution of this agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and counsel fees, for anything done or omitted by the Warrant Agent in the
execution
-15-
<PAGE> 16
of this Agreement except as a result of the Warrant Agent's gross negligence or
bad faith.
G. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable benefit
of the registered holders of the warrants, as their respective rights or
interests may appear.
H. The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants or
other securities of the Company or pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
I. The Warrant Agent shall act hereunder solely as agent and not in
a ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own gross negligence or bad faith.
Section 15. Change of Warrant Agent. The Warrant Agent may resign
and be discharged from its duties under this Agreement by giving to the Company
notice in writing, and to the holders of the Warrants notice by publication, of
such resignation, specifying a date when such resignation shall take effect,
which notice shall be published at the expense of the Company at least once a
week for two consecutive weeks in a newspaper of general circulation in the City
of New York prior to the date so specified. The Warrant Agent may be removed by
the Company by like notice from the Company to the Warrant Agent and the holders
of Warrants at the expense of the Company. If the Warrant Agent shall resign or
be removed or shall
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<PAGE> 17
otherwise become incapable of acting, the Company shall appoint a successor to
the Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated Warrant Agent
or by the registered holder of a Warrant (who shall, with such notice, submit
his Warrant for inspection by the Company), then, at the expense of the Company,
the Warrant Agent or the registered holder of any Warrant may apply to any court
of competent jurisdiction for the appointment of a successor to the Warrant
Agent. Any successor Warrant Agent, whether appointed by the Company or by such
a court, shall be a bank or trust company, in good standing, incorporated under
the laws of any State or of the United States of America, having at the time of
its appointment as Warrant Agent a combined capital and surplus of at least
$100,000,000. After appointment the successor Warrant Agent shall be vented with
the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the former
Warrant Agent shall deliver and transfer to the successor Warrant Agent any
property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Failure to file or
publish any notice provided for in this Section, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor Warrant Agent, as the
case may be.
Section 16. Identity of Transfer Agent. Forthwith upon the
appointment of any Transfer Agent for the Shares or of any subsequent Transfer
Agent for Shares issuable upon the exercise of the rights of purchase
represented by the Warrants, the Company will file with the Warrant Agent a
statement setting forth the name and address of such Transfer Agent.
Section 17. Notices. Any notice pursuant to this Agreement to be
given or made by the Warrant Agent or by the registered holder of any Warrant to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing by
the Company with the Warrant Agent) as follows:
Star Banc Corporation
Star Bank Center
425 Walnut Street
Cincinnati, Ohio 45202
Attn: General Counsel
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on
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<PAGE> 18
the Warrant Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address in filed in writing by
the Warrant Agent with the Company) as follows:
______________________
______________________
______________________
______________________
Any notice pursuant to this Agreement to be given or made by the
Company or the Warrant Agent to the registered holder of any Warrant shall be
sufficiently given or made (unless otherwise specifically provided for herein)
if sent by first-class mail, postage prepaid, addressed to said registered
holder at his address appearing on the Warrant register.
Section 18. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrants in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which will not materially
adversely affect the interest of the registered holders of the Warrants.
Section 19. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 20. New York Contract. This Agreement and each Warrant
issued hereunder shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with the
laws of said State.
Section 21. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or entity other than the Company and
the Warrant Agent and the holders of Warrants any legal or equitable right,
remedy or claim under this Agreement, but this Agreement shall be for the sole
and exclusive benefit of the Company and the Warrant Agent and the holders of
Warrants.
Section 22. Counterparts. This Agreement may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed to be an original,
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<PAGE> 19
and all such counterparts shall together constitute but one and the same
instrument.
[IF THE WARRANTS ARE SUBJECT TO ACCELERATION BY THE COMPANY, INSERT --
Section 23. Acceleration of Warrants by the Company.
A. At any time on or after _____________, the Company shall have the
right to accelerate any or all Warrants at any time by causing them to expire at
the close of business on the day next preceding a specified date (the
"Acceleration Date"), if the Market Price (as hereinafter defined) of the Common
Stock equals or exceeds _______ percent (____%) of the then effective warrant
exercise price, adjusted as if no changes in such warrant exercise price had
been made pursuant to subsection 9B, on any 20 Trading Days (as hereinafter
defined) within a period of 30 consecutive Trading Days ending no more than five
Trading Days prior to the date on which the Company gives notice to the Warrant
Agent of its election to accelerate the Warrants.
B. "Market Price" for each Trading Day shall be, if the Common Stock
is listed or admitted for trading on the New York Stock Exchange, the last
reported sale price, regular way (or, if no such price is reported, the average
of the reported closing bid and asked prices, regular way) of Common Stock, in
either case as reported on the New York Stock Exchange Composite Tape or, if the
Stock is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of NASDAQ or, if not listed
or admitted to trading on any national securities exchange or quoted on the
National Market System of NASDAQ, the average of the closing high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ, or such
other system then in use, or if on any such date the Shares of Common Stock are
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by any New York Stock Exchange firm selected from time to
time by the Company for the purpose. "Trading Day" shall be each Monday through
Friday, other than any day on which securities are not traded in the system or
on the exchange that is the principal market for the Common Stock, as determined
by the Board of Directors of the Company.
C. In the event of an acceleration of less than all of the Warrants,
the Warrant Agent shall select the Warrants to
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<PAGE> 20
be accelerated by lot, pro rata or in such other manner as it deems, in its
discretion, to be fair and appropriate.
D. Notice of an acceleration specifying the Acceleration Date shall
be sent by mailing first class, postage prepaid, to each registered holder of a
Warrant Certificate representing a Warrant accelerated at such holder's address
appearing on the Warrant register not more than 60 days nor less than 30 days
before the Acceleration Date. Such notice of an acceleration also shall be given
no more than 20 days, and no less than 10 days, prior to the mailing of notice
to registered holders of Warrants pursuant to this Section, by publication at
least once in a newspaper of general circulation in the City of New York.
E. Any Warrant accelerated may be exercised until the 3:30 p.m., New
York City time, on the business day next preceding the Acceleration Date. The
warrant exercise price shall be payable as provided in Section 5.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
STAR BANC CORPORATION
By__________________________________________
Its___________________________________
Attest:
_____________________________
____________________________________________
______________________________________
Warrant Agent
By__________________________________________
Its___________________________________
Attest:
__________________________
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<PAGE> 21
EXHIBIT A
[Form of Warrant]
Unless extended, Void After 3:30 P.M.,
New York City time,
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT THE FOLLOWING --
[UNTIL ______________,] THE WARRANTS REPRESENTED BY THIS CERTIFICATE SHALL NOT
BE TRANSFERABLE APART FROM THE ______________ TO WHICH THEY ARE ATTACHED, ANY
TRANSFER OF THE ______________ SHALL BE DEEMED A TRANSFER OF THE WARRANTS
ATTACHED THERETO, AND ANY ATTEMPT OF TRANSFER THE WARRANTS APART FROM THE
______________ SHALL BE VOID AND OF NO EFFECT.]
No. WA Warrant to Purchase _______
Shares of Common Stock
CLASS ___ WARRANT
STAR BANC CORPORATION
FOR VALUE RECEIVED, Star Banc Corporation (the "Company"), upon the
surrender [after _________] and prior to 3:30 P.M., New York City time,
________*_______, ____ (unless extended) of this Warrant for exercise, with the
exercise form on the reverse side hereof duly executed, at the office of
_________________, will sell and deliver or cause to be sold and delivered to
___________ or assigns (the "Warrant Holder") a certificate or certificates for
the number of whole shares purchasable, as indicated above, of fully paid and
non-assessable shares of Common Stock ($[ ] par value) of the Company (the
"Shares"), for which this Warrant is exercised, at a price of $____ per Share
(the "Warrant Price"), subject to all the terms, provisions and conditions of a
Common Stock Warrant Agreement dated as of _________, ____ (the "Warrant
Agreement"), executed by the Company and ______________________ (the "Warrant
Agent"), which Warrant Agreement is hereby incorporated herein by reference and
made a part hereof.
1. The Warrant Price shall be payable in cash, certified check, bank
draft or postal or express money order, payable in United States dollars, to the
order of the Warrant Agent. In certain events the Warrant Price and the number
of Shares deliverable on exercise of this Warrant are subject to
___________________
* The expiration date; see page 1 of the Warrant Agreement.
<PAGE> 22
adjustments, as provided in the Warrant Agreement. No certificates for a
fractional Share will be issued. As to any fraction of a Share which would
otherwise be purchasable on the exercise of a Warrant, the Company shall pay the
cash value thereof determined as provided in the Warrant Agreement.
2. This Warrant is issued in accordance with the Warrant Agreement
in which the rights of the Warrant Holders and the terms, provisions and
conditions upon which this Warrant has been executed and delivered may be
exercised are more fully set forth. Every Warrant Holder, by acceptance hereof,
assents to all the terms, provisions and conditions of the Warrant Agreement. A
counterpart of the Warrant Agreement is on file at the office of the Company in
Cincinnati, Ohio, and at the office of the Warrant Agent in ________, _________.
3. In the event this Warrant shall not be exercised on or before
________*_______, ____ unless said date is extended as provided for in Section
9A of the Warrant Agreement, this Warrant shall become void and all rights
hereunder shall cease.
Reference is made to the further provisions of this Warrant set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Warrant shall not be valid for any purpose until it shall have
been countersigned by the Warrant Agent.
_________________
* The expiration date; see page 1 of the Warrant Agreement.
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<PAGE> 23
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed in its name and on its behalf by the facsimile signatures of its duly
authorized officers and a facsimile of its seal.
Dated: ________, __
STAR BANC CORPORATION
By__________________________________________
Its___________________________________
Attest:
_____________________________
Countersigned:
_____________________________
_____________________________
Warrant Agent
By _________________________
Authorized Signature
[REVERSE OF WARRANT]
4. Subject to the provisions of paragraph 3 contained on the face of
this Warrant, (a) this Warrant, with or without other Warrants, upon surrender
at the office of the Warrant Agent, may be exchanged for another Warrant or
Warrants of like tenor in denominations entitling the Warrant Holder to purchase
a like aggregate number of Shares, but only to the extent provided in the
Warrant Agreement, or (b) this Warrant may be transferred at the office of the
Warrant Agent by the Warrant Holder or his assigns, in person or by attorney
duly authorized in writing, but only in the number provided in the Warrant
Agreement and upon surrender of this Warrant. If this Warrant shall be exercised
in part, the Warrant Holder shall be entitled to receive, upon surrender hereof,
another Warrant or
-3-
<PAGE> 24
Warrants of like tenor for the number of whole Shares not purchased upon such
exercise.
5. No Warrant Holder shall be entitled to vote or receive dividends
or be deemed the holder of Shares of the Company for any purpose, nor shall
anything contained in the Warrant Agreement or herein be construed to confer
upon the Warrant Holder, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors of the Company, or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any action (whether upon any recapitalization, issue of
securities, reclassification of securities, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings or other action affecting
shareholders (except for notices as provided for in the Warrant Agreement), or
to receive dividends or subscription rights or otherwise, until this Warrant
shall have been exercised and the Shares purchasable on the exercise hereof
shall have become deliverable as provided in the Warrant Agreement.
6. Every holder of a Warrant, by accepting this Warrant, consents
and agrees with the Company, the Warrant Agent and with every subsequent holder
of this Warrant that until this Warrant in transferred on the books of the
Warrant Agent, the Company and the Warrant Agent may treat the registered holder
hereof as the absolute owner hereof for all purposes notwithstanding any notice
to the contrary.
7. The Company represents and warrants that the Shares to be issued
by it as provided in the Warrant Agreement have been duly authorized and, when
so issued in accordance with the Warrant Agreement, will be validly issued,
fully-paid and non-assessable. The Company represents and warrants that it has
authority to execute and deliver the Warrant Agreement and the Warrants
thereunder, but the Warrant Agent makes no representation with respect thereto,
or with respect to the validity or sufficiency of the Warrants, the Warrant
Agreement or the Shares.
-4-
<PAGE> 25
FORM OF EXERCISE
(Form of exercise to be executed by the Warrant Holder
at the time of exercise)
To _____________________
________________, Warrant
Agent:
The undersigned, holder of the within Warrant, (1) exercises his
right to purchase _______ of the Shares of Common Stock ($[ ] par value) of Star
Banc Corporation, which the undersigned is entitled to purchase under the terms
of the within Warrant, and (2) makes payment in full for the number of Shares of
Common Stock so purchased by payment of $_________ in cash.
Please issue the certificate for Shares of Common Stock (and any new
Warrants in the case of a partial exercise) as follows:
- --------------------------------------------------------------------------------
Print or Type Name
- --------------------------------------------------------------------------------
Social Security or other Identifying Number
- --------------------------------------------------------------------------------
Street Address
- --------------------------------------------------------------------------------
City State Zip Code
and deliver it (together with any new Warrants in the case of a partial
exercise) to the above address unless a different address is indicated below.
Dated: ___________________
____________________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
<PAGE> 26
To be used only for special instructions for delivery.
Deliver to:
- --------------------------------------------------------------------------------
Print or Type Name
- --------------------------------------------------------------------------------
Street Address
- --------------------------------------------------------------------------------
City State Zip Code
-2-
<PAGE> 27
ASSIGNMENT
(Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, _____________________ hereby sells, assigns and
transfers unto ________________________
- --------------------------------------------------------------------------------
Print or Type Name
- --------------------------------------------------------------------------------
Street Address
- --------------------------------------------------------------------------------
City State Zip Code
- --------------------------------------------------------------------------------
Social Security or other Identifying Number
the right represented by the within Warrant to purchase _______ Shares of Common
Stock ($[ ] par value) of Star Banc Corporation to which the within Warrant
relates and appoints ________________ attorney to transfer such right on the
books of the Warrant Agent with full power of substitution in the Premises.
Dated: ___________________
____________________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
Signature Guaranteed
___________________________
<PAGE> 1
EXHIBIT 12.1
RATIOS OF EARNINGS TO FIXED CHARGES
AS OF DECEMBER 31, 1996
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
COMPUTATION OF INCOME:
Income before income taxes................... 239,737 205,017 178,438 152,509 114,118
+ fixed charges.............................. 57,472 68,886 49,346 26,422 25,361
------- ------- ------- ------- -------
"Earnings" excluding interest on
deposits................................ 297,209 273,903 227,784 178,931 139,479
Interest on deposits......................... 262,675 265,972 175,220 170,922 210,339
------- ------- ------- ------- -------
"Earnings" including interest on deposit... 559,884 539,875 403,004 349,853 349,818
------- ------- ------- ------- -------
COMPUTATION OF FIXED CHARGES:*
Net rental expense........................... 7,583 7,370 8,228 7,960 7,987
Portion of rentals deemed representative of
interest................................ 2,528 2,457 2,743 2,653 2,662
Interest exp-STB........................... 42,999 55,227 39,081 17,752 16,883
Interest exp-LTD........................... 11,652 10,997 9,317 6,017 5,816
Premium/(discount) on debt................. 293 205 (1,795)
Preferred stock dividends**................ -- -- -- -- --
------- ------- ------- ------- -------
FIXED CHARGES BEFORE INTEREST EXP ON
DEPOSITS................................ 57,472 68,886 49,346 26,422 25,361
Interest on deposits......................... 262,675 265,972 175,220 170,922 210,339
------- ------- ------- ------- -------
FIXED CHARGES INCLUDING INTEREST EXPENSE ON
DEPOSITS................................ 320,147 334,858 224,566 197,344 235,700
------- ------- ------- ------- -------
RATIO OF EARNINGS TO FIXED CHARGES:
Excluding interest on deposits............. 517% 398% 462% 677% 550%
Including interest on deposits............. 175% 161% 179% 177% 148%
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS:
Excluding interest on deposits............. 517% 397% 457% 637% 515%
Including interest on deposits............. 175% 161% 179% 176% 147%
</TABLE>
- ---------------
* Interest includes any capitalized interest in addition to any discount or
premium.
** Includes only preferred stock dividend requirements of majority-owned subs
and 50%-owned persons (parent company preferred stock dividends excluded).
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January 10,
1996 and January 13, 1997 incorporated by reference in Star Banc Corporation's
Form 10-K for the year ended December 31, 1995 and Form 8-K filed March 12,
1997, respectively, and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Cincinnati, Ohio
March 12, 1997
